text:
    The Hilton Bridge Construction Company, Appellant, v. The New York Central and Hudson River Railroad Company and Others, Respondents; Benjamin N. Sherman and Another, Defendants.

      Laches in bringing in additional parties defendant — rights of various parties determined in one action■— attorney^ lien upon muniments of title.

    The question of laches io one that to some extent is addressed to the discretion of the Special Term, and where the defect of parties defendant is specifically raised hy the answer in an action commenced on February 8,1894, and an order is granted, on the defendant’s motion, September 11,1894, hy the Special Term directing that certain persons he brought iu as parties defendant to the action, such order should not he reversed on appeal, on the ground of laches in making the motion therefor, if it appears that the plaintiff after the service of the answer seemed to regard the question, in respect to the bringing in of additional parties, as still open, and participated to some extent in negotiations looking to the bringing in of other parties defendant in the action.
    Where the rights and liabilities of all the parties to an action arise out of the same subject-matter, the rights of each and all of them can he effectually adjudicated and determined in one action so as to bind all of them.
    Where attorneys are employed to procure a right of way for a railroad corporation, they have a lien at common law and hy statute upon the muniments 'of title of the railroad to the land in question, which can only he divested hy payment.
    Appeal by tbe plaintiff, The Hilton Bridge Construction Company, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of St. Lawrence on the 1st day of October, 1894, directing that certain persons be brought in as parties defendant to the action.

      Edward Winslow Paige, for tbe appellant.

      Frank Loomis, Ira A. Place and Thomas Sjyratt, for the railroad companies, respondents.

      (?. /S. Longer, for respondents Conger & Orvis.
   Mayham, P. J.:

The record on this appeal shows that the New York Central and Hudson River Railroad Company and the Gouverneur and Oswegatchie Railroad Company are respectively corporations organized ■ under the laws of the State of New York, and that the Moffett, Hodgkins & Clarke Company is a foreign corporation, organized under the laws of New Jersey; that the Gouverneur and Oswegatchie Railroad Company was engaged in the construction of a railroad in the State of New York, and that on the 11th day of May, 1892, the above-named railroad companies entered into a contract whereby the first-named railroad company should construct the railroad of the latter company, with all the necessary erections and constructions, and should acquire and pay for the lands, and furnish such last-named company good and sufficient deeds therefor, and complete the construction and equipment of such road by the 1st of November, 1892, for the sum of $650,000, which sum the Gouverneur and Oswegatcliie Railroad Company agreed to pay as follows : $350,000 cash on the 15th day of July, 1892; $50,000 cash or first mortgage bonds on the 15th day of August, 1892; $50,000 cash or such bonds on the 15th day of September, 1892; $50,000 cash or bonds on the 15th day of October, 1892, and within fifteen days after the complete performance of such contract $100,000 in cash or like bonds.

The case discloses that after the making of this contract, and on the day of the date thereof, the defendant the New York Central and Hudson River Railroad Company entered into a contract with the Moffett, Hodgkins & Clarke Company, whereby the latter company, for a consideration therein expressed, agreed to construct the Gouverneur and Oswegatchie railroad, in the manner therein particularly set out, and to be paid therefor as therein specified, under which agreement the Moffett, Hodgkins and Clarke Company commenced and continued work for some time, but failed to finish the same and secure the right of way as was agreed by it, and became insolvent, whereupon Booream and O’Brien were appointed receivers of that corporation in this State, and were acting as such at the time of the commencement of this action.

Before the appointment of such receivers the Moffett, Hodgkins & Clarke Company assigned to Louis Marshall its interest in the contract with the New York Central and Hudson River Railroad Company as collateral to the payment of some of its obligations. While the Moffett, Hodgkins & Clarke Company were operating under their contract with the railroad company they employed Conger & Orvis as attorneys to secure the right of way for the railroad, and procure titles and releases therefor, and such attorneys performed work under such employment and had in their possession, at the time of the commencement of this action, such conveyances and releases, which they refused to surrender to the railroad company until their alleged liens for services were paid. The Moffett, Hodgkins & Clarke Company, as is alleged, had also employed the plaintiff to build and. construct bridges on the line of this railroad, for which plaintiff claims it has not been paid and for which it is alleged liens were filed, which are now being foreclosed in this action.

It is claimed by the New York Central and Hudson River Railroad Company that that company by its contract with the Moffett, Hodgkins & Clarke Company were protected against liens, and that it has fully paid that company for all it is liable to pay on account of the contract with it.

Upon these facts the defendants asked that the persons and firms brought in by the order appealed from might be brought in as necessary and material parties to this action.

The first objection urged by the plaintiff to the granting of this order is that the defendants were guilty of laches in making the motion, and the order should have been refused by the Special Term on that account.

The action was brought on the 3d of February, 1894. The answers set up the non-joinder of the Moffett Company, Louis Marshall and Booream and O’Brien as defendants, and such answers appear to have been served in time for the May Circuit, at which Circuit the plaintiff noticed the action for trial, and the defendants, ■the two railroad companies, on the twenty-seventh of April served notice in writing on Marshall and the receivers Booream and O’Brien to appear at that Circuit and protect their interests. The case discloses that soon thereafter negotiations were commenced between the attorney for the plaintiff and the railroad companies, also the attorneys for the parties brought in by the order appealed from, looking to the question of bringing in such parties, but no definite result was reached by such negotiations, and finally, on the 11th of September, 1894, a motion was made at a Special Term, and this order granted.

Under the circumstances of this case, we do not think the court on appeal should reverse this order on the ground of laches in making this motion. It cannot be said that the defendants in the action as originally commenced took any such subsequent step after serving the answer as would be a waiver of their right to make this motion. In the answer the question of defect of parties defendant was specifically raised, and the plaintiff seemed to regard that question as still open after the service of the answer by participating to some extent in negotiations looking to the bringing in of other parties defendant; besides, the question of laches is one that to some extent is addressed to the discretion of the Special Term (Lawrence v. Jones, 15 Abb. Pr. 110), and we do not think the Special Term in disregarding the delay in making this motion abused that discretion.

But upon the merits it is insisted that the motion as to the receivers was improperly granted.

The receivers represent the plaintiff’s obligors, or the parties for Whom the plaintiff performed the work, and it is only by reason of the railroad companies’ interest in the property against which the lien was filed that they are made parties defendant.

It is conceded by the learned counsel for the plaintiff that it would have a personal action against the receivers arising out of the contract between the plaintiff and the Moffett Company, which the receivers represent, but it is insisted that if they were parties to the action, and should succeed in defeating the plaintiff’s claim, the receivers would still be compelled to try the legal issue with the Central Railroad Company, whether that company owed the receivers or party represented by them or not.

We do not think that would follow in this case. If in this action it turn out that the Central Railroad Company owed nothing to the contracting company, then the plaintiff would, it seems to us, fail in this action; but that question could not be effectually tried, so as to bind the receivers, unless they were before the court in this action, and as the rights and liabilities of all the parties arise out of the same subject-matter of the action, the rights of each and all, if before the court in this action, can be effectually adjudicated and determined so as to bind all.

For that purpose the receivers of the Moffett, Hodgkins & Clarke Company would seem not only to be proper but necessary parties for the purpose of determining whether or not the railroad company owed Moffett, Hodgkins & Clarke Company anything on which the plaintiff’s lien would attach under its employment by the latter company.

No complete determination of the controversy could be had without the presence of the representatives of the Moffett, Hodgkins & Clarke Company, and they would, therefore, seem to be proper and necessary parties under the provisions of section 452 of the Code of Civil Procedure. The counsel for the plaintiff objects also that the motion of the railroad company to bring in Louis Marshall, the assignee of the Moffett, Hodgkins & Clarke Company, was improvidently granted.

Marshall was the assignee of the interest of Moffett, Hodgkins & Clarke Company in its contract with the Central Railroad Company; as such, he was directly interested in the amount, if any, of the plaintiff’s recovery against that company, provided that amount was to be taken out of any balance due from the railroad company to Marshall on Moffett, Hodgkins & Clarke’s claim, which had been assigned to him, and while he, as assignee, might not be bound by the result of the plaintiff’s action against the railroad company, lie would, for the reason stated above in the discussion of the question as to the propriety of the receivers being made parties, in like manner be a proper party for the purpose of a complete determination of the matter in controversy, to wit: the amount, if any, of the indebtedness of the railroad company to Moffett, Hodgkins & Clarke Company, and, if so, whether the plaintiff or the receivers of the Moffett, Hodgkins & Clarke Company are entitled 1o the same. In theory, it is insisted by the plaintiff, the railroad companies must litigate the question of the indebtedness of the New York Central and Hudson River Railroad Company to the Moffett Company in an action between the plaintiff and railroad companies, which will in no sense bind the Moffett Company or its representatives as to the fund over which the controversy is waged, leaving the railroad companies and the Moffett Company to settle their rights to the same fund in an independent action,.thus subjecting the railroad companies to the hazard of being twice charged with the same fund.

Against such a result we think section 452 of the Code of Civil Procedure furnishes a remedy, or rather a preventative. That section is as follows: “ The court may determine the controversy as between tbe parties before it when it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in.”

We think the provision of the Code is broad enough to cover a case of this kind, and justify the order bringing in the receivers and assignee of the Moffett, Hodgkins & Clarke Company.

By the terms of the agreement between the New York Central Railroad Company and the Moffett, Hodgkins & Clarke Company, the latter agreed to procure the right of way for the Gouverneur and Oswegatcliie railroad, and in the attempt to perform that contract the Moffett Company employed Conger & Orvis, attorneys, to procure a clear title to such right of way, which to some considerable extent they did, but retained in their own hands, by virtue of their lien as attorneys, the title so secured, in default of payment for their services, and upon the motion of the receivers of the Moffett Company their attorneys were, on this motion, ordered to be brought in as defendants, so that their lien upon the muniments of title to the right of way might, on an adjustment and payment of their lien in this action, be settled and the title deeds in their hands might be delivered to the party entitled to the same. This claim also arises out of the transactions involved in the action, and the' subject-matter in controversy therein, and, while they have not filed notice of their lien, they nevertheless have liens, both at common law and by statute, which cannot be divested except upon payment, and in this action, which is in the nature of an equitable action, to enforce a lien against this property, we see no reason why these attorneys are not proper parties defendant.

We think on the whole case, as presented on this appeal, the order of the Special Term was proper, and should be affirmed.

PutNam and HbeRioK, JJ., concurred.

Order affirmed, with ten dollars costs and printing and other disbursements.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    John Redington, as Administrator, etc., of Michael E. Redington, Deceased, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.

      Negligence — questions for the jury — failure of a railroad company to promulgate rules — duty in respect to the safety of its servants ■— what acts a/re those of the railroad and not of its employees.

    Upon the trial of an action brought by the administrator of a brakeman in the service of a railroad company whose duty it was to couple certain cars, to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, a question of fact is presented in the absence of any rules prescribed by the company for the government of its yard, for the storage of cars and the making up of trains, for the jury to determine whether the cars required to be coupled -by the deceased were so loaded that the place of coupling was rendered an unsafe place for him to work in, and whether such condition was the result of the negligence of the defendant in not furnishing suitable cars for the transportation of the merchandise in the cars attempted to be coupled by such brakeman.
    The duty of a master to furnish to his servants reasonably safe, proper and adequate machinery and other appliances for their work cannot be evaded by a delegation of that duty to another.
    If the loading of long iron rails upon short railroad cars renders the coupling of such cars more hazardous than that duty would otherwise be, and if, by reason thereof, the place of coupling cars is made unsafe so that it increases the ordinary danger of coupling the same, and if, by reason of such increased danger, a brakeman in the employ of the railroad company operating such cars suffers personal injury, it seems to follow that the employer has failed in its duty, and is liable for the damages sustained, unless the employee was guilty of contributory negligence.
    In the absence of the promulgation of any rules for the government of the yard of a railroad company, the suffering of a flat car upon which iron is loaded, to stand upon a track which is to.some extent an inclined plane, without having the brakes on so as to prevent its moving by its own weight, is an omission of the master and not of its servants.
    Appeal by the defendant, The New York, Ontario and Western Railway Company, frdm ,a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 26th day of June, 1894, upon the verdict of a jury rendered after a trial at the Sullivan Circuit, and also from an order entered in said clerk’s office on the 31st day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      George H. Gcwjoenter, for the appellant.
    ■ T. F. Bush, for the respondent.
   Mayham, P. J.:

Michael E. Redington, the plaintiff’s intestate, while engaged as an employee of the defendant, in coupling cars in the defendant's railroad yard at Livingston Manor, was crushed between two cars and killed, and this action was brought by his personal representative under the statute to recover damages for such loss of life. The theory of the action is that the defendant was guilty of negligence in causing to be loaded on one of the defendant’s cars, railroad iron, consisting of iron or steel rails'which were two feet longer than the ear, so that the rail projected more than a foot over each end of the car, and beyond the deadwood or bumpers, thus rendering the deadwood or bumpers little or no protection to persons required to couple such car with others on the train.

There was proof on the trial tending to uphold this theory.

The defendant attempted to meet this theory of the plaintiff by proof that the accident occurred in the day time; that the condition of the car and its loading were plainly to be seen; that the business of coupling cars is dangerous, and the danger is one of the incidents of the employment; that the evidence tended to show that the car loaded with iron stood on a track with a descending grade towards the gondola car to which the intestate was required to couple it, and that it was not secured, from moving down the grade by its own gravity, by brakes, and that suffering it to stand in that condition on the track without brakes down, or other fastening, was the negligence of a co-employee for which the defendant is not responsible.

All of these questions, as they were presented by the evidence, were questions of fact proper for the consideration of the jury, and were fairly submitted by the learned trial judge. In the absence of any rules prescribed by, the defendant for the government of the yard, for the storage of cars and the making up of trains, it was the duty of the brakeman who was subject to the order of the conductor to couple these cars, and it was a question of fact for the jury to determine under the evidence whether the car was so loaded that it was rendered an unsafe place for the deceased to work, and whether sucli condition was tlie result of the negligence of the defendant in not furnishing suitable cars for the transportation of such rails.

The platform car on which they were loaded was shown by the proof to he only twenty-eight feet long, while the rails which were loaded upon it were thirty feet long, so that the car could not be loaded with this rail without their extending beyond the body of the car two feet; that extension seemed to have been substantially divided between the ends of the car so that there was an extension of one foot on either end beyond the body or frame of the car. The court properly submitted the question to the jury to say whether that extension rendered the car an unsafe or dangerous utensil to be used by the intestate, who was tire defendant’s employee, and whether the extension of the rails beyond the car frame produced the injury to the plaintiff’s intestate.

The legal principles involved in this class of actions have been.so frequently and recently discussed that an extended examination of them in this case seems unnecessary.

In Bushby v. The N. Y., Lake Erie & W. R. R. Co. (107 N. Y. 374) it was held that the duty of the master to his servant to furnish reasonably safe, proper and adequate machinery and other appliance for his work, cannot be evaded by a delegation of that duty to another. If, therefore, the loading of these long rails upon a short car rendered the coupling more hazardous than that duty would otherwise be, and the -place of coupling the cars was, therefore, made unsafe, so that it increased ordinary danger of coupling cars, and by reason of that increased danger the intestate suffered the injury complained of, it would seem to follow that the defendant had failed in its duty to the employee, and would be liable unless the employee was guilty of contributory negligence himself.

We think within the case above cited that it was the duty of the defendant to furnish a car for the transportation of railroad iron suitable for the purpose for which it was to be used, and that the loading of this iron on a short car was the act of the defendant and not of a fellow-servant of the deceased, and, in the absence of the promulgation of any rules for the government of the defendant’s yard, the suffering of the flat car on which this iron was loaded to stand upon a track which was to some extent an inclined plane, without having on the brakes, so as to prevent its moving by its own weight, was an omission of the master and not of a fellow-servant. The company does not appear at this station to have any rule as to the inspection of trains or cars. The duty, therefore, of furnishing safe cars, tracks and trains inhered in the company, as no person at that yard was charged with that special duty. In Abel v. The Pres., etc., of the D. H. C. Co. (103 N. Y. 581) the court say: “The law imposes upon a railroad company the duty to its employees of diligence and care, not only to furnish' proper and reasonably safe appliances and machinery, and skilled and careful co-employees, but also to make and promulgate rules which, if faithfully observed, will give reasonable protection to the employees.”

We think all the questions relating to the alleged negligence of the defendant, in not furnishing a reasonably safe place and appliance for the performance of its work, and as to whether or not the deceased was negligent in obeying the orders of the conductor, in attempting to couple these cars, and as to whether he knew of the liability of the car loaded with iron to move down upon him by reason of the brakes not being set, were questions of fact for the jury and were properly submitted to them by the trial judge.

Nor do we see any error in the rulings of the judge for which this judgment can be reversed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Rachel A. Woolsey, Appellant, v. The Trustees of the Village of Ellenville, Respondent.
    No. 1.

      Costs irrvposcd as a condition of an amendment — cannot be again taxed,.

    Where a party to an action is permitted to amend his pleading upon the payment of costs, an order to that effect is an adjudication that the items covered thereby belong to the party adverse to the one so amending, and such costs cannot again be taxed by either party to the action.
    Appeal by the plaintiff, Rachel A. Woolsey, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 2d day of July, 1894, disallowing certain items of the plaintiff’s bill of costs, upon the ground that such items were improperly allowed to the plaintiff upon the taxation of her costs by the clerk.

      John E. Van Etten, for the appellant.

      George G. <& J. B. Keeler and A. T. Olemwater, for the respondent.
   Mayham, P. J.:

This is an appeal from an order of the Special Term modifying a bill of costs, as taxed by the clerk of Ulster county, in favor of the plaintiff.

After two trials at the Circuit and an appeal to the General Term on the third trial, the plaintiff obtained leave to amend her complaint on complying with the following order:

“ Ordered, that'leave be and the same hereby is granted to the plaintiff herein to file and serve a copy of said amended complaint upon the defendant’s attorneys herein, within twenty days from the date hereof, on payment to the defendant’s attorneys of the statutory costs after the first notice of trial, including two trial fees at the Circuit and one argument fee at- the General Term, and ten dollars costs of this motion, but no disbursements or witnesses’ fees or printing disbursements to be included in said payment, nor any other costs at the General Term, except one argument fee.”

It appears that the items of costs above directed to be paid amounted in the aggregate to the sum of $190, and that the same constitute the statutory allowance to the defendant for the items embraced in the order.

On the third trial, and after the amendment of the complaint, the plaintiff recovered a verdict of $4,000, and on entering judgment on such verdict presented to the clerk for adjustment the same items of costs against the defendant and amounting to the same aggregate sum as that directed in the order allowing the amendment of the complaint to be paid by the plaintiff to the defendant as a condition for such amendment, which the clerk taxed under defendant’s objection, and which, on motion before the Special Term, were stricken out, and from which order this appeal is taken.

The plaintiff accepted of the terms imposed for the privilege to amend her complaint.

We think the case comes clearly within the principle of the decision in The Seneca Nation of Indians v. Hawley (32 Hun, 288).

As was said in that case, the order was an adjudication that the items covered by it belonged to the plaintiff. They could not again be taxed in favor of either party.” This was the view taken by the learned judge at Special Term, in which we fully concur.

The order must be affirmed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concurred.

Order affirmed, with ten dollars costs and printing and other disbursements.


text:
    Rachel A. Woolsey, Respondent, v. The Trustees of the Village of Ellenville, Appellant.
    No. 2.

      Case opened to receive further evidence — damages for personal injuries — evidence of the condition of a street before and after the accident admissible — subds. 1 and 5 of section 3 of chapter 270 of 1885 — certificates thereunder of the cause of death admissible in evidence.

    It is not unusual on the trial of actions, for the court, in the exercise of its discretion, to allow a party after a case is rested to recall witnesses and supply defects in the evidence which have inadvertently occurred, and a judgment should not ■ be reversed on account of the exercise of such discretion unless the trial judge has been guilty of an abuse of the same.
    Upon the trial of an action brought to recover damages arising from personal injuries, sustained by the plaintiff in falling upon the sidewalk of a street of a village, the testimony of witnesses as to the condition of the sidewalk and gutter, both before and after the accident, if offered for the purpose of showing the condition of the locus in quo at the lime of the injury, is admissible in evidence. While the primary object of the Legislature in enacting subdivisions 1 and 5 of section 3 of chapter 270 of the Laws of 1885 was to furnish information on the subject of vital statistics for sanitary purposes, yet the language employed is broad enough to make certificates of the cause of the death of persons on file in the office of the clerk of the town in which such persons died, although not under oath, admissible in evidence upon the trial of an action, and such certificates ar e prima facie evidence of the facts therein set forth.

      Appeal by the defendant, The Trustees of the Village of Ellen-ville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 21st day of April, 1894, upon the verdict of a jury rendered after a trial at the Ulster Circuit, and also from an order, made on the 9th day of April, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      G-. Q. c& J. B. Keeler and A. T. Olewrwater, for the appellant.

      John jK Vcm Mtm, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff against a municipal corporation to recover for an alleged injury resulting from a fall of the plaintiff upon one of the sidewalks in the street of the defendant by reason of an alleged defect in the same. The theory upon which the plaintiff prosecuted such action was, that by reason of the defendant’s negligence in the construction of an imperfect and faulty ditch and an imperfect and defective culvert or drain under the sidewalk, surface water conducted in the ditch was precipitated upon the sidewalk and formed ice on the same, upon which the plaintiff, without negligence or fault on her part, slipped and fell, and by such fall suffered bodily injury. The defense proceeds upon the theory that the ditch and culvert were properly constructed, and that the alleged ice was not the result of any fault or negligence on the part of the defendant, and that the plaintiff was guilty of negligence, which caused or contributed to the alleged injury.

At the conclusion of the testimony of the plaintiff the defendant asked the court to dismiss the complaint on the ground, among others, that the plaintiff had failed to prove the absence of contributory negligence. Before deciding the motion the court permitted the further examination of the plaintiff under the defendant’s objection and exception ; and she testified that she was walking carefully, whereupon the court denied the defendant’s motion, to which the defendant excepted. It is not unusual in the trial of actions for the court, in the exercise of its discretion, to allow a party after a cause is rested to recall witnesses and supply defects in the evidence which have inadvertently occurred; and a judgment. should not be reversed for such exercise of discretion unless the trial judge has been guilty of an abuse of the same.

Ye do not think in this case that such discretion was abused. We have carefully examined all the exceptions to the rulings of the learned trial judge as to the admission or rejection of evidence on the trial and can find no error which would seem to justify a reversal on that ground.

The map made by the engineer and verified by him seems to be sufficiently authenticated as correct at the time it was made, and there is evidence that the situation of the sidewalk and gutter had not been changed between the time of the alleged accident and that of making the same, and as the map is not printed in the record we fail to see any error in its admission in evidence, and while there is some evidence of a change of the loous in quo the conflict upon that subject became a question for the jury, and could not be disposed of by the court as matter of law.

There was considerable controversy on the trial over the admissibility of the testimony of witnesses as to the condition of this walk' and gutter and culvert, both before and after the accident, but as that evidence was manifestly offered for the purpose of showing the condition of the loous in quo at the time of the injury, we think the same was admissible, and while by no means conclusive, it was not incompetent evidence.

This evidence was not of the character condemned in Clapper v. Waterford (131 N. Y. 382) and Lane v. Hancock (142 id. 510). In those cases the plaintiff proved that the defendant soon after the injury made repairs, for the purpose of establishing knowledge of the dangerous condition of the street and highway, and inferentially a confession of the defects, by proceeding to make repairs.

Such evidence has been repeatedly held inadmissible.

On the trial the defendant offered evidence tending to show that plaintiff’s ancestors and kinsmen had been affected with qiaralysis, doubtless with the purpose of raising the ¡^resumption that the paralysis which the plaintiff charged as the result of her injury was hereditary. To meet this evidence the plaintiff put in evidence, under the objection of the defendant, a certificate of the cause of death of certain kinsmen of the plaintiff on file in the town clerk’s office of the town in which such persons died, certified by the town clerk to be true copies of the records in sucli office of the death of such persons. It is urged that these certificates were not competent evidence of the facts which they purport to certify ; that they were not under oath, and the persons making- the same were not sworn as witnesses. It' is quite clear that these certificates were not competent common-law evidence.

But it is insisted by the plaintiff that they are made.evidence by subdivisions 1 and 5 of section 3 of chapter 270 of the Laws of 1885. Subdivision 1 of this section provides for the proceedings of the board of health created by that, chapter ; subdivision 5 of such section makes it the duty of the board of health “ to secure the registration of all certificates and records of death and the causes of death, * * * of the undertaker, sexton or other person having charge of the body of any dead person, to procure a record of the death, and its probable cause, duly certified by the physician in attendance on the deceased during his last illness. * * * It shall also be the duty of every such board of health to provide for obtaining copies of the said registered records of births, marriages and deaths, and for the amount and payment of fees for such copies. Such copies, duly attested by the local registering officer, and verified transcripts from the records preserved in the State Bureau of Yital Statistics, shall be admitted in all the courts of this State as prima facie evidence of the facts therein set forth. ”

While it is quite apparent that the primary object of the Legislature in enacting- these provisions of law was to furnish information upon the subject of vital statistics for sanitary purposes, yet it is manifest that the language employed is broad enough to make these certificates such as the act expressly declares “ shall,be admitted in all the courts of this State as prima facie evidence of the facts therein set forth.” Under such circumstances we think the certificates were competent evidence.

We are also of the opinion that the motion for a nonsuit, and the dismissal of the plaintiff’s complaint, was properly disposed of by the trial judge. Whether the plaintiff was or was not guilty of contributory negligence was, under the evidence in this case, clearly a question of fact for the jury and properly submitted upon a fair and impartial charge to them.

I think the same must be true as to the question of the negligence of the defendant in the construction and maintenance of the sidewalk and ditch by reason of which the plaintiff claims she was injured. On the whole case we think there was no error committed at the trial for which this judgment can be reversed.

Putnam and Herrick, JJ., concurred:

Judgment affirmed, with costs.


text:
    Warner E. Sprague and Another, Respondents, v. William B. Cochran and Others, Appellants.

      Pleadings demurred to favorably construed — action brought to recover the possession of and obtain an adjudication as to the title to real estate — proper parties thereto.

    On tlie argument of a demurrer, the rule as to the construction of the pleading demurred to is to allow all reasonable intendment in support of such pleading.
    The complaint in an action alleged in substance that the defendant William B. Cochran was the owner of certain real estate which he undertook to mortgage to the plaintiff Appley to secure a loan; that in making the mortgage a valuable portion of the real estate which was to have been embraced therein was, by mutual mistake, omitted from the same; and that without the knowledge of such omission Appley assigned the mortgage to Sprague, one of the plaintiffs, representing and believing that it embraced all of the mortgagor’s land intended to be included therein; that Sprague foreclosed the mortgage and became the purchaser of the land covered by it, in an action in which the mortgage was reformed so as to cover the laud omitted therefrom by mistake, and that the, whole of the land intended to be covered by the mortgage was sold in such action.
    The complaint also alleged that Cochran, before the foreclosure of such mortgage, fraudulently conveyed the land, left out of the mortgage by mistake, to his two daughters, and also that Cochran, after the making of the mortgage, married, and that his wife claimed to have an inchoate right of dower in the premises left out of said mortgage by mistake; that at the time of the commencement of the action to foreclose the mortgage the deed to the daughters had not been recorded, and their claim thereunder was unknown to the plaintiff in the foreclosure proceeding, and that Cochran’s daughters were not parties to that action; that there was a deficiency upon the foreclosure of such mortgage; that the grantees under the deed from Cochran were in possession of the premises so left out of the mortgage and refused to surrender the same to the purchaser at the foreclosure sale.
    Upon the hearing on a demurrer interposed on the ground of misj oinder of parties plaintiff,

      Held, that both the mortgagee and assignee of the mortgage were proper, if not necessary, parties plaintiff to an action brought to recover the possession of such premises, and to obtain an adjudication that the plaintiffs had a title to the same superior to the claims of the defendants;
    That the defendant Cochran was a proper party defendant, being charged with being a party to the fraudulent conveyance to his daughters, and also charged with being in possession, together with his fraudulent grantees, of the land described in the complaint.
    Appeal by the defendants, William P. Cochran and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Sullivan on the 13th day of February, 1894, upon the decision of the court rendered at the Sullivan Special Term overruling the defendants’ demurrer to the complaint, and also from an order made at the Siillivan Special Term and entered in said clerk’s office on the 5th day of February, 1894, overruling said demurrer.

      George II. Carpenter, for the appellants.

      T. F. Bush, for the respondents.
   Mayham, P. J.:

The demurrer is solely based upon the misjoinder of' parties plaintiff. In order to determine whether upon the face of the complaint there is or is not a misjoinder of parties plaintiff a brief resume of the allegations of the complaint may be necessary. It alleges in substance that William B. Cochran, one of the defendants, was the owner of certain real estate, which he undertook to mortgage to Appley to secure a loan of money made by her to him. In making the mortgage a valuable portion of the real estate, which was to have been embraced therein, was by mutual mistake omitted from the same. Without knowledge of that omission, Appley assigned the mortgage to Sprague, representing and believing that it embraced all of the mortgagor’s land intended to be included therein. Sprague foreclosed the mortgage and became the purchaser of the land covered by it, and as in that action the mortgage was reformed so as to cover the land omitted from the mortgage by mistake, the whole of the land was sold, and Sprague, the assignee of the mortgage, became the purchaser and took the referee’s deed. The complaint also alleges that before the foreclosure Cochran, the mortgagor, fraudulently conveyed the land, left out of the mort- • gage by mistake, to his two daughters. It also alleges that Cochran, after tlie making of the mortgage, married, and that his wife has, or claims to have, an inchoate right of dower in the premises left out of such mortgage by mistake. That at the time of the commencement of the action to foreclose the mortgage the deed to the daughters had not been recorded, and their claim under the deed was unknown to the plaintiff in the foreclosure proceedings, and they were not parties to that action.

That on the foreclosure of the mortgage there was a deficiency. That the grantees under the deed from Cochran are in possession of the premises so left out of the mortgage, and refuse to surrender to Sprague, the purchaser, under the foreclosure of the mortgage, or the person or persons having his interest. We are inclined to think that under the facts alleged in the complaint both the mortgagee and assignee of the mortgage are proper, if not necessary, parties plaintiff in this action. Appley, by her assignment of the mortgage representing to the assignee that it covered all of the premises which by mistake were left -out of the description, was clearly liable to the assignee to make good that representation.

Sprague, who had purchased and foreclosed the mortgage, had a right to the coipplete title to the entire mortgaged premises, as well that included in the actual description of the mortgage as that left out by mistake.

As the daughters of Cochran were not parties to the action of foreclosure, and not, therefore, hound by the judgment reforming the mortgage, their deed, though fraudulent, was a cloud upon the title of the purchaser under the mortgage, which was not discoverable by a mere inspection of the record, and which Sprague in this action would be interested in having removed.

Both of the plaintiffs, therefore, had a direct interest in the relief demanded in the complaint.

Mrs. Appley had parted with her legal title to the mortgage by the assignment. She had a direct interest in having the mistake corrected, so as to relieve her upon her warranty as to the extent of the mortgaged premises. In Malins v. Brown (4 N. Y. 404) it was held that when a party had conveyed by deed free from incumbrance [relying upon a mortgagee to release, upon a sufficient consideration paid therefor, a portion of the land conveyed from the lien of the mortgage], the grantor of such land might maintain an action to compel such release, although he had no interest in the land, he having conveyed away his interest by warranty deed.

The ground of such right was his liability to his grantee on his covenant of warranty.

Applying the doctrine of that case to the one at bar, and Mrs. Appley is clearly a proper party plaintiff in this action. (See, also, Pendergast v. Greenfield, 127 N. Y. 25.)

We think that Sprague also had an interest in the subject-matter of this action, which arose out of the same transaction.

In the language of section 446 of the Code of Civil Procedure, he has “ an interest in the subject of the action, and in obtaining the judgment demanded.” It is difficult to see how a complete determination of the rights of both of these plaintiffs can be had without their presence before the court, and we can see no possible harm to the defendants under the rules relating to parties in equitable actions, by having them united as plaintiffs in this action. (Murray & Blunt v. Hay, 1 Barb. Ch. 59; Kennedy v. City of Troy, 14 Hun, 312; Haines v. Hollister, 64 N. Y. 1-4.)

By having the rights and interests of both of the plaintiffs adjusted in this action, a multiplicity of actions may be avoided, which in equity is always desirable. (Shepard v. Manhattan B. B. Co., 117 N. Y. 442 — 447 ; Townsend v. Bogert et al., 126 id. 370.)

We think the defendant William B. Cochran is a proper party defendant and the demurrer as to him cannot be sustained. He is charged in the complaint with being a party to the fraudulent conveyance to his daughters. He is also in possession of the lands with his fraudulent grantees, as appears by the complaint, which is admitted by the demurrer. (Hubbell v. Merchants' Nat. Bank, 42 Hun, 200; Miller v. Hall, 70 N. Y. 250.)

As the rule on demurrer in the construction of the pleading demurred to, is to allow all reasonable intendment in support of the pleading demurred to, we think the demurrer in this case must be overruled. The demurrer is overruled and judgment on demurrer ordered for the plaintiffs, with costs, with leave to the defendants to answer on payment of costs of demurrer.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs, with leave to the defendants to answer on payment of costs.


author: Putnam, J.:

text:
    Peter A. Delaney, Respondent, v. Charles Miller, Jr., Appellant.

      Demurrer to a separate answer — what considered upon the argument thereof — right of an attorney to costs recovered — it is not subject to set-off in favor of the adverse party.

    In the consideration of a demurrer to a separate answer the court has before it and can consider only the complaint, the separate answer demurred to and' the demurrer.
    Costs recovered in an action belong to the attorney without any assignment, and the claim of the attorney thereto is superior to the right of the adverse party in the action to set off claims existing in his favor against the successful party.
    Appeal by tbe defendant, Charles Miller, Jr., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22d day of January, 1894, upon the decision of the court rendered at the Albany Circuit sustaining the plaintiff’s demurrer to the separate defense and counterclaim contained in the defendant’s amended answer on a trial before the court without a jury, and also from the order upon which said judgment was entered.
    The complaint in this action alleged that the plaintiff was an attorney at law; the recovery of certain judgments for costs in actions in which one Mary Considine was defendant, for whom plaintiff acted as attorney; that said Mary Considine was insolvent; that she had assigned her interest in said judgment and in said undertaking to the plaintiff; that the plaintiff has not been paid; that the defendant had signed an undertaking on appeal to secure the payment of such judgment, and that the defendant had not paid such costs. The defendant answered as follows:
    “ Second. The defendant, for a further and separate defense, and as a counterclaim, alleges, upon information and belief, that on the 14th day of March, 1893, Mary Considine, the plaintiff’s assignor, was lawfully indebted to one William J. Maher, for goods sold and delivered, in the sum of $21.91, and that on said 14th day of March, 1893, said William J. Maher, for good and valuable consideration, duly sold and assigned his said claim against said Mary Considine and the debt to one Abram Barnett, and
    “ Defendant further alleges, upon information and belief, that on the 15th day of March, 1893, said Mary Considine, the plaintiff’s assignor, was lawfully indebted to one Robert C. Batchelder, for goods sold and delivered, in the sum of $22.50, and that on the said 15th day of March, 1893, said Robert C. Batchelder, for good and valuable consideration, duly'sold and assigned his said claim against said Mary Considine and the debt to Abram Barnett aforesaid, and
    “ Defendant further alleges, upon information and belief, that on the 20th day of December, 1892, one Patrick Conroy duly recovered a judgment in his favor for $30.22 against plaintiff’s assignor, said Mary Considine, which judgment was duly rendered by the City Court of Albany, in an action in said court, wherein said Patrick Conroy was plaintiff, and said Mary Considine was defendant, and that on the 15th day of March, 1893, said Patrick Conroy, for value received, by an instrument in writing, duly sold, assigned and transferred said judgment and all his rights thereunder, to Abram Barnett aforesaid.
    “ Defendant further alleges that on the 20th day of March, 1893, and long before the defendant had any notice that the plaintiff had been, or then was, the attorney for said Mary Considine, in any action or proceeding in any court, and before defendant had any notice of the assignment to plaintiff by said Mary Considine, as alleged in the complaint or otherwise, said Abram Barnett, by an instrument in writing, and for good and valuable consideration, duly sold, assigned and transferred the above-mentioned judgment, claims and debts against said Mary Considine, which had been assigned to him, as aforesaid, to the defendant, who then became, and still is, the owner and holder thereof,” to which the plaintiff demurred on the ground that it did not state a defense.

      William T. Murray, for the appellant.

      Peter A. Delcmey, for the respondent, in person.
   Putnam, J.:

The court below sustained the demurrer on the ground that plaintiff’s action was not brought upon a contract, and, hence, the cause of action set up in the answer did not constitute legal counterclaims as held in Furber v. McCarthy (18 N. Y. Civ. Proc. Rep. 69).

"When this case was first before this court our attention was chiefly devoted to the position taken by the learned justice at Special Term, and we reached the conclusion that plaintiff’s claim upon the undertaking set out in the complaint was a cause of action upon contract to which a counterclaim could be legally interposed.

’But in our consideration of the case we overlooked the fact that the separate answer demurred to contained no denial of any allegation in the complaint, and, hence, that in our consideration of the question of the sufficiency of such answer, it should be remembered that all the allegations of the complaint were admitted. It is true that the first separate defense contained in the answer denied all the allegations set out in the complaint, except the execution of the undertaking, but there is no denial in the second part of the answer, and it is well settled that in the consideration of a demurrer to a separate answer the court only has before it, and can only consider, the complaint, the separate answer demurred to and the demurrer.

In Douglas v. Phœnix Ins. Co. (138 N. Y. 209-215), where a demurrer had been interposed to a separate defense contained in the answer, it is said : “ The allegations of the complaint not denied in the affirmative defense are, for the purposes of the question now presented, to be deemed admitted. The affirmative defense is to be treated as a separate plea, and the defendant is' not entitled to have the benefit of denials made in another part of the answer, unless repeated or incorporated by reference, and made a part of the affirmative defense.” In Valentine v. Lunt (51 Hun, 544-547) Justice Dyicman remarks : “ As the defense to which the demurrer was interposed makes no denial of any of the allegations of the plaintiff, the complaint stands admitted, for all purposes of the demurrer, precisely as if it was the sole and only defense set up by the answer.” (See, also, Boyd v. McDonald, 35 N. Y. St. Repr. 484; Hammond v. Earle et al., 58 How. Pr. 426.)

In the opinion of Justice May-ham, delivered when this case was first considered by this court, he remarked (78 Hun, 19, 20): “ By the assignment to the plaintiff in this action the right of t.he original obligee passed to him, added to which was his lien for services, but until the value of such services were liquidated and ascertained, it could not, as matter of law, be sañd that they were sufficient in amount to equal the defendant’s liability on the undertaking, vrhieh was as well for damages as costs, and any valid defense as to any excess existing between tlie original parties would be good as against the assignee of the bond.” But, in fact, by the failure of detendant in the answer to deny any of the allegations of the complaint, the value of plaintiff’s services were liquidated and admitted to be equal to the amount of the judgment for costs sought to be recovered in this action.

It is admitted that the judgment set up in the complaint was entirely for costs; that plaintiff was attorney in the action; that the value of his services exceeded the amount of the judgment; and that plaintiff has not been paid, and his client is irresponsible. Hence, the allegations in the complaint, not being denied in the answer to which the demurrer was interposed, and it being, in the pleading, admitted that the judgment which plaintiff seeks to recover was entirely for costs; that he was attorney for the plaintiff in the action, and that the value of his services equalled the amount of the judgment, under the doctrine assumed by this court in Delaney v. Miller (78 Hun, 19, 20), defendant’s alleged counterclaims cannot be set off against plaintiff’s bill of costs in the action, referred to in the complaint.

It is well settled that the costs recovered in an action belong to the attorney without any assignment, and that the claim of the attorney thereto is superior to the right of the adverse party in the action, to set off claims against the successful party. (Tunstall v. Winton, 31 Hun, 219; Ennis v. Curry, 22 id. 584.)

In Marshall v. Meech (51 N. Y. 140-143) it is said as to an attorney’s lien: The lien exists not only to the extent of the costs entered in the judgment, but for any sum which the client agreed his attorney should have as a compensation for his services. To the amount of such lien, the attorney is' to be deemed as equitable assignee of the judgment. To the extent of the taxed costs entered in the judgment, the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney.”

For the reasons above stated, we think the court below properly sustained the demurrer, and hence that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


text:
    Peter V. P. Hewlett and Another, Appellants, v. Saratoga Carlsbad Spring Company and Others, Respondents.

      Appeal — review of questions of fact — contract vitiated by fraud — proof of both fra/ud and damage, essential to relief— expert testimony as to the value of property.

    The determination of the trial court, upon the trial of an action, as to disputed questions of fact, if in accordance with the evidence, must be deemed conclusive upon an appeal from the judgment rendered therein, and the appellate court will not disturb or interfere with the findings of the trial court made upon an evenly balanced case.
    Fraud vitiates all contracts tainted or affected by it, and a fraudulent and false representation as to the quality of a chattel known by the vendor to be false at the time of his making the representation, where such representation is believed by the purchaser to be true, and is relied upon by him, if it induces a purchase by which he is injured or defrauded, constitutes good grounds for equitable interference and for setting aside the contract.
    In such case the party asserting the fraud is charged with the burden of proving it; it cannot be presumed in the absence of proof.

      It seems, that before a party can be relieved from his contract on account of fraud he must show some pecuniary loss or injury as the natural consequence of the contract induced by the misrepresentations of the other party to it. In the absence of proof that he has suffered loss by reason thereof, equity will not relieve him from his contract; such false representation must be so material that its falsity renders it unconscientious in the person making it to enforce the agreement or other transaction which it has caused.
    A witness upon the trial of an action is qualified to give his opinion as to the value of property, where he is shown to be acquainted with the value of similar property in the vicinity of the property in question.
    Appeal by tbe plaintiffs, Peter Y. P. Hewlett and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 2d day of November, 1894, upon the decision of the court rendered after a trial at the Saratoga Special Term dismissing the plaintiff’s complaint upon the merits.

      Frederic B. Kellogg and J. W. Houghton, for the appellants,

      cTwines IF Yerbeóle and Fdgar T. Brackett, for the respondents.
   Mayham, P. J.:

The plaintiffs brought this action to rescind an alleged contract with the 'defendants Carragan, under which the plaintiffs claim to have acquired 125 shares of the stock of the Saratoga Carlsbad Spring Company, and to compel the surrender of certain promissory notes given by the plaintiffs on such alleged purchase, to enforce cancellation by the corporation of the names of the plaintiffs as stockholders thereof, and to recover money paid to the defendants Carragan on account of the alleged sale of such stock on the ground of alleged fraudulent representation by said Carragans on the sale of such stock as to the amount of the earnings of such corporation during three years previous to December, 1891.

The defense set up a denial of the fraudulent representations by the Carragans and of the sale of the stock by them, and they alleged that the only interest they had in the contract was the sale of their farm to the company.

The case was heard and disposed of by the trial judge as an equity cause, who dismissed the complaint on the ground “ that on the whole evidence the plaintiffs have failed to establish any right to any relief against the defendants, or either of them.”

This trial proceeded under the provisions of chapter 688 of the Laws of 1894, which dispenses with proposed findings of fact and conclusions of law, and leaves it in the discretion of the judge whether he will state separately the facts found and his conclusions of law, or state concisely the grounds upon which the issues have been decided, and the learned trial judge adopted the latter method. The contention of the plaintiffs on the trial was that they purchased this stock of the defendants Carragan, and were induced to make said purchase upon the false and fraudulent representations of said defendants that the stock had previous to the time of the purchase produced ten per cent net profit on the amount of capital. The said defendants contended that they made no such representations, and also deny that they sold any stock to the plaintiffs, insisting that the stock purchased by the plaintiffs belonged to and was purchased by them of one Duncan Tail, who, before his sale to the plaintiffs, was the owner of one-half of the entire stock, the other half of the same being owned by the defendants Emmett Carragan, William H. Carragan and Frank Carragan.

Two questions of fact, therefore, became the principal points of controversy:

First. Did Jhe plaintiffs purchase this stock of the defendants Carragan ?

Second. Were tlie plaintiffs induced to purchase the stock by the false and fraudulent representations of the defendants as to its previous productiveness ?

While the case contains some evidence that the dealings of the parties relating to, and leading up, to the sale of this stock to the plaintiffs were between the Carragans and plaintiffs, there is abundant evidence in the case to uphold a finding by the trial court that the stock transferred to the plaintiffs was the stock of Vail. ITis scrip was transferred by him to the plaintiffs and the part of the cash consideration paid by them at the time of the sale was paid to him, and while it does not appear that the case turned upon that point, yet, if it had, this court could not, upon the evidence in this case, reverse the judgment for that reason.

It was a disputed question of fact for the trial court, whose determination under the evidence must be deemed conclusive.

But if we assume that'the court found that this stock was owned by the defendants Carragan and sold by them to the plaintiffs, then it becomes a pertinent inquiry, did the plaintiffs by their evidence on the trial prove such false and fraudulent representations by the defendants Carragan as to its past productiveness as to vitiate the contract and entitle the plaintiffs to the relief sought ?

It is elementary law that fraud vitiates all contracts tainted or affected by it. It is also equally true that fraudulent and false representations as to the quality of a chattel, known by the vendor to be false at the time of the representations, where such representations are believed by the purchaser to be true, and relied upon- by him, if they induce a purchase; by which he is injured or defrauded, constitute good grounds for equitable interference and for setting aside the contract.

But in such case the party asserting the fraud is charged with the burden of proving it. Whether or not the Carragans were guilty of false and fraudulent representations in this case was a question of fact to be found by the trial court from the evidence. The evidence of the plaintiffs tends to prove that the Carragans, while negotiating the sale of this stock, stated positively that the stock had up to about the time of the sale produced ten per cent annual-profit on the whole amount of the capital stock.

This was met by the testimony of the defendants that no such representations had been made. It must, for the purpose of this appeal, be held that the trial court found for the defendants on this disputed question of fact, or at least that the plaintiffs had failed affirmatively to establish upon the whole proof the fraud charged. Fraud must be proved and cannot in the absence of proof be presumed, and where, as in this case, the evidence is conflicting it is the peculiar province of the trial court to settle such conflict, and the appellate court will not on an evenly balanced case upon the proof interfere to disturb its findings.

The determination of the court being in favor of the defendants, we must, it would seem, assume that it had found against the plaintiffs upon one or both of the above questions of fact, a finding for the defendants in either of which would prevent a recovery by the plaintiff. But it is insisted on the part of the plaintiffs that there was error committed by the court in the receipt and rejection of evidence on the trial, for which the judgment should be reversed.

The proof as to the value of the property sold was objected to on two grounds:

First. That the witness was not shown competent to give an opinion.

Second. That the alleged recommendation, being as to the productiveness of the property and not as to its value, it was error to prove the value. As to the first objection, we think it was properly overruled. The witness upon that subject was shown to be acquainted with the value of similar property in the vicinity of the property in question. Under such conditions a witness may testify to the value of property.

As to the second objection, as we have seen, the court has found against the plaintiffs on the main issue, and, therefore, rendered unimportant the question of value, but even if that question is open it does not follow that the proof of the actual value of the premises is incompetent as bearing upon the question-of the net profits for the use of the same.

It was clearly competent upon the question of the right to equitable relief, for, if the plaintiffs had not suffered loss by the alleged fraud, equity would not relieve them from their contract. Before a party can be relieved from his contract on account of fraud, the rule seems to be that he must show “some pecuniary loss or injury as tbe natural consequence of tbe conduct induced by tbe misrepresentation.' In short, the representation must be so material that its falsity renders it unconscientious in the person malting it to enforce the agreement or other transaction which it has caused. Fraud without resulting in pecuniary damage is not a ground for the exercise of remedial jurisdiction.” (Pom. Eq. Juris. [13th ed.] :§ 898.) The same doctrine was held in Aron v. De Castro (36 N. Y. St. Repr. 116 ; affd., 131 N. Y. 648). Yan Brunt, J., says: “It is the well-settled rule that it is the very essence of the action of fraud and deceit that the same should be acconrpanied by damage. (Citing Deobold v. Uppermann, 111 N. Y. 531.) “ Fraud without damage, or damage without fraud, will not sustain an action.” (Citing Taylor v. Guest, 58 N. Y. 266.)

Upon the principle enunciated in the cases above cited it was clearly competent to q>rove that the property purchased by the plaintiffs was worth as much or more than the plaintiffs paid for it. At the time this evidence was offered, the question as to whether or not a fraud would be established was open, and it was competent for the defendants to prove that the plaintiffs had suffered no loss by the contract.

We have examined the other questions and exceptions taken by the plaintiffs to the receijjt and rejection of evidence on the trial, and see no error for which the judgment should be reversed.

Judgment affirmed, with.costs.

Putnam, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    Charles A. G. Beller, Respondent, v. Sarah Jane Antisdel and Another, Defendants; Peter G. Fritcher, Appellant.

      Action of partition, to which a mortgagee is made a pan'ty defendant — mortgage to be paid, from the proceeds of sale before the costs of the action.

    ■When, in an action of partition, a mortgagee is brought in as a party defendant, and it is proposed to pay such mortgage from the proceeds of the sale of the property on which the mortgage is a lien, the costs of the partition action should not be deducted from the proceeds of the sale before applying the same in extinguishment of the mortgage, unless the mortgagee has unnecessarily Increased the costs and expenses of the litigation.

      Appeal by tbe defendant Peter G. Fritclier from a judgment in partition of tbe Supreme Court in favor of tlie jfiaintifli, entered in the office of the- clerk of the county of Schoharie on the 29th day of April, 1893, upon the decision of the court rendered at the Schoharie Special Term directing the sale of certain premises and confirming the report of a referee, with notice of an intention to bring up for review upon such appeal so much of said judgment as disallows the appellant’s exceptions, as confirms the referee’s report as to the appellant, and as allows costs against him, and the portion thereof fixing the amount found due on the appellant’s mortgage and the rate of interest allowed thereon.

      A. B. Coons, for the appellant.

      I. W. Winnie and (r. M. Palmer, for the respondent.
   Per Curiam:

We think, as a general rule, to which of course there may be exceptions, that when in an action of partition a mortgagee is brought in as a party defendant, and it is proposed to pay such mortgage from the proceeds of the sale of the property upon which his mortgage is a lien, the costs of such partition should not be deducted from the proceeds of the sale before applying the same in extinguishment of the mortgage.

Unless the mortgagee has unnecessarily increased the costs and expenses of litigation, there is no reason why he should be compelled to pay any portion of the costs of the action in partition, which he-might be compelled to do if the costs of such action were to be. deducted from the proceeds of the sale first, and the remainder-applied to the satisfaction of his mortgage.

There is some difficulty, however, in applying that rule in this, case; it is contended that the mortgage is a lien upon some ten acres of land in addition to that sought to be partitioned; this does, not clearly appear from the case, and the appellant has excepted to-those findings of the referee from which it might be inferred that, there is more property covered by the appellant’s mortgage than that sought to be partitioned, but in the appellant’s brief it is practically admitted that such mortgage does cover land in addition to. that sought to be partitioned, and to which appellant could resort to make up any deficiency which, might arise from applying the proceeds of that portion of the land involved, covered by the mortgage, to the payment of his mortgage, after deducting a pro rata share of the costs in this action from such proceeds.

The relative value of the different parcels of land covered by the appellant’s mortgage nowhere appears in the case, and does not seem to have been found or considered by the referee or by the Special Term, so that we find ourselves somewhat embarrassed as to the proper disposition of the matter; but it seems to us that the judgment entered should be so modified as to provide that the proceeds of the sale of that part of the premises described in the complaint which are covered by the mortgage of the appellant be first applied in satisfaction of said mortgage, before any part thereof shall be applied in payment of the costs of this action; or, if the respondent so elect, the decree may be so modified as to provide for the sale of such premises, subject to the lien of the appellant’s mortgage.

As so modified the order appealed from is affirmed, with ten dollars costs and disbursements of this appeal, to be paid from the proceeds of the sale of the premises described in the complaint.

Present- — -Mayham, P. J., Putnam and Herrick, JJ.

Order modified and as so modified affirmed, with costs and ■disbursements.


text:
    George H. Newcomb and Others, Respondents, v. Augusta C. Lush and Another, Appellants, Impleaded with Others.

      Conveyance purporting to be of a fee, executed by a life tenant — effect thereof— legal signification of the word ‘' heir ” — construction of a devise to one person in fee and on his death to another.

    If a tenant for life of real estate executes a deed purporting to convey the fee thereof, the grantee and all subsequent grantees take only the life estate of the grantor, which ceases upon the death of the life tenant, at which time the right of the remainderman to the property at once attaches, carrying with it the right of possession.
    While under all circumstances a child must be regarded as an heir, it does not follow that if a person dies without children, or the descendants of children, .he dies without heirs in the legal signification of the word.

      Where there is a devise to one person in fee and in ease of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and if such first-named devisee survives the testator he takes an absolute fee.
    The words of contingency do not create a remainder over, to take effect upon the death at any time of the first taker, nor an executory devise, but are merely substitutionary and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator.
    Herrick, J., dissenting.
    Appeal by the defendants, Augusta 0. Lush and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 26th day of July, 1894, upon the decision of the court rendered after a trial at the Albany Circuit before the court without a jury.
    This action was brought for the recovery of the possession of certain real property which the plaintiffs alleged was unlawfully withheld from them by the defendants.

      A. V. Fe Witt and F. Goimtryman, for the appellants.

      T. F. Hamilton, for the respondents.
   Mayham, P. J.:

The contention in this appeal arises out of the construction of the will and codicil of Daniel Newcomb, deceased.

On the 12th day of June, 1828, the testator made his will, in and by which he devised to his daughter Harriet "Wells all his “real estate situated in the city of Albany and county of Albany, on Washington street;” the devise to this daughter also embraced other lands belonging to testator; and by the will testator also bequeathed to her certain personal property. The testator, in the other parts of his will, devised and bequeathed to various persons therein named what appears to be a large estate, consisting of both real and personal property, and in and by the will nominated and appointed three executors, of whom his son Thomas W. Newcomb was one.

The will also provides “ that so much of the income of what I have given to my two sons Daniel Newcomb and Thomas Newcomb, as shall be necessary to pay all taxes that may be assessed on the two tracts of land I have given to my sons Charles and Pitt and to my two daughters Sarah and Jane, and grandson George, shall be applied for that purpose until they shall severally become of age, meaning that the said Daniel and Thomas shall bear an equal proportion of said taxes.”

On the 28th day of October, 1830, the testator made a codicil to his will, which codicil is as follows: “ Whereas, I, Daniel New-comb, of Pittstown, county of Rensselaer, and State of New York, have by my last will and testament in writing, bearing the date the twelfth day of June in the year of our Lord one thousand eight hundred and twenty-eight, given and bequeathed to my daughter Harriet Wells and to her heirs and assigns, all my real estate situated in the city of Albany and county of Albany, on Washington street; also lot No. 18 in the town of Plattsburg, and county Clinton, and also thirty shares of turnpike stock, it being in the State of New Y ork;

“ Now I, the said Daniel Newcomb, being desirous of altering my said will, in respect to the said legacies, do, therefore, make this writing, which I will and direct to be annexed as a codicil to my said will, and taken as part thereof, and I do hereby revoke the said legacies, by my said will given to Harriet Wells, and give and bequeath the said legacies to my said son Daniel T. Newcomb, his heirs and assigns, except, and it is my will, that my said son Daniel T. New-comb pay to my said daughter Harriet Wells, annually, the sum of two hundred dollars in current money, and the yearly income of one-half of my Northern Turnpike stocks during her life, and that my said son Daniel T. Newcomb pay the heirs of Harriet Wells, if she leave any, who live to the age of twenty years, at her decease the sum of one thousand dollars.

“ It is my will that all the legacies bequeathed to my son Daniel T. Newcomb in this writing, and the will to which this is a codicil, should go to his wife, Patience Newcomb, during her life, should she remain a widow after the death of her husband, and if my son Daniel T. Newcomb die without heirs, the said legacies after his widow are to go to the heirs of Thomas W. Newcomb.

“ It is my will that such and all sums of money I may have at interest may be equally divided between my daughter Harriet Wells and my son Daniel T. Newcomb, and that in lieu of the three hundred dollars given to Lucina Woolman in the will to which this is a codicil, that I give her twelve shares in the Stratton Turnpike, and at her decease to her daughters Sarah and Jane, to be divided equally between them.”

After the death of the testator, and on the 26th day of April, 1832, the will was admitted to probate by the surrogate of liensselaer county, and thereafter, on the 1st day of May, 1836, Daniel T. New-comb and his wife, Patience Newcomb, executed and delivered to Henry G. Wheaton the lands in’ the city of Albany referred to in the will, and for which this action is brought, and the defendant Lush, through several mesne conveyances, has succeeded to the rights and interest therein conveyed to Wheaton by Daniel T. Newcomb and Patience Newcomb. Lush and the other defendants were in possession of the premises, claiming to hold through the Wheaton conveyance at the time of the commencement of this action.

Daniel T. Newcomb and Patience Newcomb, his wife, died before the commencement of this action, the former in 1870, the latter in 1891, leaving no children or descendants.

The principal question in controversy in this appeal is as to whether Daniel T. Newcomb took a fee in this Albany property, if he died without descendants, or whether in that event he took only ,a life estate for himself and wife, which terminated at the death of the survivor, by virtue of this will.

If he took a fee then the conveyance to Wheaton carried the same to him, and through the mesne conveyance to the defendant Lush.

If, on the contrary, he took only a life estate, then the conveyance to Wheaton and all subsequent grantees carried only the life estate, which ceased with the death of Patience Newcomb, at which time the right of the remainderman would at once attach, carrying with it the right of possession.

The wording of the will is inartificial and obscure, and in some respects the intention of the testator is not clearly expressed by the language employed in the instrument. It is quite apparent that the testator used indiscriminately the words “ devise ” and bequeath ” as referring alike to the disposition of real and personal estate, both in the will and codicil, and the same is true of the words “ legacy ” and “ devise.” When, therefore, the testator spoke of the revocation of the “ legacies ” to Harriet in the codicil, he evidently intended to embrace both the devises and bequests, and when in the same instrument lie gave the property taken from Harriet to Daniel T. Newcomb, lie intended by the use of the word “bequeath” to convey both real and personal property mentioned in that portion of the codicil to Daniel T.

This construction does not seem to be disputed by either of the parties, and it seems to be agreed that Daniel T. took the real and personal property embraced in that provision, and that by the revocation the right of Harriet to the same was divested.

But it is insisted by the plaintiffs that, in default of lineal descendants or heirs of his body, Daniel T. took only a life estate, which terminated with his life and that of his wife Patience, at whose death the fee vested in other children of the testator and their descendants, who constitute the plaintiffs in this action.

On the other hand, it is contended by the defendants that the codicil vested the entire title to the Albany property in Daniel T. and his heirs and assigns, subject to be defeated only by his death before the testator, and that, as he survived the testator, his interest became a vested estate in fee, which, by the conveyance by Daniel T. and wife to Wheaton, vested the title in him, and the grantees, from him and successors of his interest became and are the owners in fee of the premises in question.

The language of this codicil is, as we have seen, “ I * * * give and bequeath the said legacies to my said son Daniel T. New-comb, his heirs and assigns,” etc.

The learned trial court held that this devise as herein stated was absolute, but that it was cut down to a life estate by the provisions which follow, that “ if my son Daniel T. Newcomb die without heirs the said legacies after his widow are to go to the heirs of Thomas W. Newcomb.”

This interpretation can only be maintained by holding that the word “ heirs ” in the codicil relates to descendants — heirs of the body — of the devisee, and that the time of his death therein mentioned related to a period after the death of the testator.

Neither of these conclusions follow as a necessary result from the language of the codicil. While under all circumstances a child must be regarded as an heir, it by no means follows that if a person dies without children, or the descendants of children, he dies without heirs in the legal signification of that word.

Webster’s definition of the word “ heir ” is “ one who receives, inherits or is entitled to succeed to the possession of any property after the death of the owner; one in whom the title to an estate vests on the death of the proprietor; one on whom the law bestows the title or property of another after the death of the latter.” Daniel T. Newcomb, while he died without children, cannot be said to have died without heirs, in the legal sense of that term. He had a brother and sister who survived him, both of whom would answer to the definition of heirs; and who, in the absence of any testamentary disposition of his property, take the same as such.

But, while the testator by this codicil did not in terms turn this absolute estate into an estate for life, by making it to depend upon the devisee having heirs of his body, it is. insisted that a fair construction of the same, looking after the intent of the testator, leads to that construction, and in support of that contention we are referred to Kiah v. Grenier (56 N. Y. 220). In that case the word heirs ” was construed to mean descendants, both on account of the wording of the will and the unnatural disposition of the estate if it were construed to mean heirs at law.”

As another indication that the word heirs in that will meant •children of the devisee, the vesting in possession was limited to the time when the heirs became of age, thus clearly indicating that children of the devisee, and not all who might b'e his heirs at law, were meant. In the cases to which we have referred there was also an illegal supension of alienation, which differs from the case at bar.

• Again, we see no good reason in the case at bar for holding that the testator, by the use of the word “ heirs,” intended to use that word in the restricted sense contended for by the respondents.

If such had been the intent of the testator, it is reasonable to suppose that he would have used the word descendant, children, or heirs of his body, each of which would have clearly presented such intention. The devise in fee to Daniel T. can, therefore, be upheld by giving to the word heir its ordinary signification, and by so doing do no violence to the apparent intention of the testator, especially if we construe the contingency of the death of Daniel T. to relate to a period before the death of the testator.

Did the reference in the will refer to the happening of the contingency before the death of the testator %

The reasonable intendment to be drawn from the devise in fee to Daniel T., which in the same instrument imposed upon him the burden of paying legacies to other beneficiaries in the will, is, that the testator intended to do what in plain language he did do, make an absolute devise of the Albany lands.

But, when we compare the language used with the adjudications bearing upon that point, the conclusion seems irresistible that the contingency of the death of Daniel T., referred to in the codicil, by force of its legal effect, related to a period before that of the death of the testator.

In The Matter of the N. Y., Lake Erie & W. R. R. Co. (105 N. Y. 92) Rapallo, J., in discussing such a provision in a will, uses this language : “ It may be regarded as the settled rule of construction that, when there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee; that the words of contingency do not create a remainder over, to take effect upon the death at any time of the first taker, nor an executory devise, but are merely substitutionary, and used for the purpose of preventing a lapse in case the devisee first named should not be living at the time of the death of the testator.”

This doctrine is in harmony with Vanderzee v. Slingerland (103 N. Y. 47), and was reiterated in Mead v. Maben (131 N. Y. 295), and in Benson v. Corbin (78 Hun, 204) Brown, P. J., refers to the doctrine as so completely settled that ho uses this language :

“The defendants do not question the general rule that where there is a devise to one person in fee, and in case of his death to' another, the contingency referred to is a death during the lifetime of the testator; and that this rule is uniformly applied in the construction of wills, unless there is some language in the instrument indicating a different intention.”

This aspect of the case at bar does not seem to have been brought, to the attention of the learned trial judge, and in his opinion is not discussed by him.

There is much in this will to strengthen and reinforce the contention that the testator in revoking the devise of these lands made in his original will to his daughter Harriet, and devising them in the codicil to Daniel T., intended to devise them to the latter in fee, and that the qualification upon that devise was solely to prevent intestacy and the lapsing of that devise by the death of the devisee in the lifetime of the testator.

If, therefore, we are right in our conclusion that this was a devise in fee to Daniel T., charged only with the life estate of his wife, should she survive him, and that the contingency of liis death related only to the happening of that event in the lifetime of the testator, then, as he survived the testator, he became the absolute owner of these premises, and by his deed to Wheaton, in which Ms wife joined, the fee and right of possession at once vested in the grantee, and are by the various mesne conveyances in the defendants, and that Thomas W. Newcomb, the contingent devisee, never acquired any title to these Albany lands under the will of Daniel Newcomb, and that the judgment in favor of Ms descendants is erroneous, and should be reversed.

These views render a further consideration of the case unnecessary.

Judgment reversed and a new trial granted, costs to abide the event.

Putnam, J., concurred; Herrick, J., dissenting.

Judgment reversed and new trial ordered, costs to abide the event.