text:
    John E. Walls, as Administrator, etc., of Catharine Walls, Deceased, Respondent, v. Rochester Railway Company, Appellant.

      Negligence — contributory negligence — when- a verdict will not be disturbed — when not excessive.

    In an action brought by an administrator to recover the damages resulting from the death of his intestate caused by the alleged negligence of the defendant, a railroad company, it appeared that at the street intersection where the accident occurred the defendant operated a double-track street railway; that the >ntestate, a woman about seventy-two years of age, crossed the first track in safety; that when she approached the second track the car which killed her was about 100 feet away, approaching upon a descending grade at a speed • exceeding that prescribed by the city ordinance; that the railroad tracks were wet and muddy; tliat the distance between them was about four feet; that when she was about to step upon the second track she saw the car near her, and ran; and had run so nearly over the second rail that one step more would have brought her outside the path of the car, when she was struck by its outer corner; that after she was struck the car moved a distance of 100 feet before it could be stopped. Whether the motorman really tried to stop the car, was a fact in dispute.

      Held, that it was proper to submit the question of contributory negligence to the jury, and that a verdict for the plaintiff would not be disturbed;
    That a verdict of §1,500 was not excessive in view of the fact that the deceased was a strong and healthy woman, aged seventy-two years, who did general housework for a family consisting of herself and two children.
    Appeal by tlie defendant, the Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of February, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 2d day of February, 1894, denying the defendant’s motion for a new trial.

      O hables J. Bissell, for the appellant.

      Thomas Barnes, for the respondent.
   Lewis, J.:

The intestate, Catharine Walls, was killed while attempting to cross the tracks of the defendant’s railway on Monroe avenue, in. the city of Rochester, by a car belonging to and operated by the defendant.

The defendant has a double track in Monroe avenue from Clinton street easterly to a point beyond Chestnut street. Chestnut street enters Monroe avenue at right angles from the north. Between the points mentioned the railroad tracks run practically east and west, upon quite a down grade towards the east, so much so that a car will run by its own gravity.

On the 1st day of October, 1891, between three and four o’clock • in the afternoon, the plaintiff’s intestate left a store on the north side of Monroe avenue, one door west of Chestnut street. She walked to Chestnut street, and started to cross to the south side of Monroe avenue by way of the west crossing on Chestnut street. She crossed the northerly track, and when nearly across the southerly track she was struck by one of the defendant’s cars, running easterly upon the southerly track, and received injuries from which she died in a few days.

The evidence justified the jury in finding that the defendant’s negligence caused the injury to the deceased.

The serious question, and one upon which we have had some doubt, is whether the deceased was shown to have been free from contributory negligence.

The evidence on that. question is quite conflicting, as is not unusual in such cases. "Witnesses of such accidents are usually under great excitement, and are quite likely to differ when relating what they saw.

As the deceased approached the crossing she was seen to look in the direction of the approaching car. She undoubtedly saw it, and evidently concluded that she would have time to pass over the tracks with safety before the car arrived at the crossing. She presumably misjudged the speed of the car, which the evidence tends to show was running quite rapidly, at a much greater speed than the ordinances of the city permitted, and more rapidly even than was usual for cars passing along that down grade.

The witness Groh was standing in the doorway of his store, at a distance of from 90 to 100 feet west of the crosswalk on which Mrs. Walls was walking. When he first noticed her she was going south upon the crosswalk, and was about to step on the north track. She then turned her head and looked towards the approaching car and continued on, and when she liad crossed the space between the two tracks, a distance of about four feet, and was about to step on the south track, the car was passing the witness’ store, a distance of 90 to 100 feet west of the deceased. The motorman at that time commenced ringing the gong. The deceased again looked toward the car and started on a run or trot, as if to hurry across the track.

In speaking of the speed of the car, this witness stated that he noticed it was coming down unusually fast; that he was accustomed to observe the speed of cars, and that it was moving faster than cars ordinarily did, faster even than they usually ran down that grade. He further stated that the usual movement of cars down that grade was quite rapid. He did not notice any change in the speed of the car 'after the gong sounded, until after the accident.

There was evidence tending to show that the car was not brought to a stop, until it had reached a point about 100 feet east of Chestnut street.

The motorman testified that he applied the brakes when he was ■about 100 feet west of Chestnut street, and that he employed all .the means provided for stopping the car. It had been raining that .day, and the track was muddy and slijipery, which, the evidence .■ shows, made the stopping of the car more difficult. The fact that ■.the motorman was not able to stop the car, until it had run some .200 feet, tended to corroborate the testimony that the car was running at quite a rapid speed.

There was evidence tending to show that if the track had been ■■dry, the car could have been stopped in a distance of from thirty to ■forty feet.

The deceased manifestly failed to appreciate the speed of the car, ■when she concluded that she could safely cross the track. She was not in a position to form a correct judgment of its speed, as it was •coming directly towards her. Had the car not been running at a speed exceeding the rate fixed by the city ordinances, seven miles an hour, the deceased would have passed over the track safely. Had .the motorman, as was usual, slackened the speed of the car when .•approaching the .street crossing, the accident would not have • occurred. Had the deceased been one step farther on her journey, . she would have passed beyond the reach of the car. She was struck ■ by the south front corner of the car.

There was evidence permitting the jury to find that, after the intestate had passed over the north track and was about to step • upon the southerly track, the ear was from 90 to 100 feet distant ' from the crossing. If this was the situation, she, perhaps, was justified in believing that she could safely cross. After she had made up her mind to cross the southerly track, she evidently saw that ■.there was danger, but in the excitement of the moment did not judge correctly as to the situation. Had she understood that the ■ .car was running at such a rapid rate, it was a negligent act to . attempt to cross, relying upon the motorman to slacken the speed of the car.

Whether the motorman did anything to lessen the speed of the • car, after he discovered that Mrs. Walls intended to cross the Hack in front of the car, was a disputed, question. He testified' that he •did do all he could to lessen its speed. Other witnesses, who observed the course of the car, testified that they did not observe •any attempt on his part to check the speed of the car.

We are, upon the whole case, of the opinion that the question of •contributory negligence was properly submitted to the jury.

The verdict was for $1,500. It is claimed by the appellant that it was excessive. Mrs. Walls was a widow, about seventy-two years of age, in good health. She had not been subject to any sickness; was strong and healthy. She did the general housework for the family, consisting of herself, son and daughter. We cannot see that, under the circumstances, the verdict was excessive. We see no reason for disturbing the verdict.

The judgment and order appealed from should be 'affirmed.

Bradley and Ward, JJ., concurred; Adams, J., dissented.

Judgment and order affirmed.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. The Groton Bridge and Manufacturing Company, Relator, v. The Town Board of the Town of Campbell, Respondent.

      Town board — consent to the construction of a bridge — the highway commissioner has exclusive control after it is ordered — the court on certiorari may determine the amount due the contractor —1890, chary. 568, §§ 10, 11; Code Civil Proe. § 3140.
    After a town board has authorized a highway commissioner to cause a bridge to be built in the town, the duties of the board, so far as the construction of 'the bridge is concerned, are at an end.
    'The town board cannot direct the highway commissioner as to the manner of construction nor as to the method by which he shall let the contract, nor as to the person to whom it shall be let.
    It cannot, after authorizing such bridge to be built and after it has been constructed, insist that the bridge was unnecessary.
    Where a town board refuses to audit such a claim in full the appellate court has power to amend, upon the hearing had upon the return to a writ of certiorari, the determination made by the town board, and to allow the claim of the contractor for the work at the sum which the highway commissioner of the town agreed to pay him.

      Certiorari issued out of the Supreme Court and attested on the 3d day of July, 1895, directed to John S. Curtis, as supervisor; Ira M. Platt, as town clerk, and John Wilcox, Miles Woodward and D. O. Stark, as justices of the peace of the town of Campbell, composing the town board of said town of Campbell, commanding them to certify and return to the office of the clerk of the county of Steuben all the proceedings had by them concerning the audit of the bill and claim of the relator, presented to and audited and disallowed by them.

      S. D. Fallidcvy, for the relator.

      Frtmk H. Bobmson, for the respondent.
   Lewis, J.:

The town board of the town of Campbell, at a- special meeting thereof, held on the 10th day of November, 1894, passed the following resolution:

“ County of Steuben, )

Town of Campbell, )

ss.:

“Whereas, the highway bridge, known as the Cohocton river-bridge, in the village of Campbell, has become damaged and unsafe for travel, and there not being sufficient moneys in the hands of the commissioner of highways to rebuild the same, therefore, be it

uBesol/ued, that we do hereby consent that the commissioner of highways of the town of Campbell cause said bridge to be immediately rebuilt, and we do hereby empower the highway commissioner to employ an engineer to receive proposals from responsible contractors for the superstructure and substructure of said bridge, and to let the same to the lowest bidder at a cost not to exceed $8,000 for the completed bridge and approaches. Said bridge to be built of iron or steel.”

The resolution was signed by the members of the town board.

John King, the commissioner of highways of the town, thereafter entered into a written contract with the relator to construct-the bridge according to the plans and specifications annexed to and forming part of the contract, for the price of $5,400, to be paid upon the completion and acceptance of the bridge, the payment to be made in certificates issued by the town board of said town,, pursuant to sections 10 and 11 of chapter 568 of the Laws of 1890, known as the Highway Law. The relator constructed the bridge in accordance with the terms of the contract. The bridge was duly accepted by the highway commissioner, and thereafter, at a special meeting of the board, held in the month of June, 1895, the relator presented to said board a bill for the price mentioned for constructing the bridge. The bill was properly verified and certified as required by section 12 of said Highway Law. The hoard refused to audit the bill for the full amount, but did conditionally audit it at the sum of $4,475, the condition being that the relator should accept that amount in full payment for the bridge. Hpon. the petition of the relator a writ of certiorari was issued to the board, commanding them to certify and return to the Supreme^ Court all the proceedings had concerning the audit of said bill and claim of the relator. By their return to the writ, the respondents stated as their reasons for not auditing and allowing the claim that there, was really no need for the bridge; that the old one had not become-unsafe or impassable; and, as an additional reason, that the highway commissioner did not let the contract for constructing the bridge to the lowest bidder; that another responsible bridge company had put in a bid for the construction of a bridge like the one-constructed by the relator for the sum of $4,475, being the sum of $925 less than the contract price for which the relator agreed to-construct it, and that the price agreed to be paid the relator was excessive, and more than the bridge was worth, and denied that the town of Campbell was justly indebted to the relator in the sum of' $5,400, or any sum whatever. It was further stated in said return that the respondents, so far as they had the right and power to act,, audited the relator’s claim at $4,475 on condition that it would accept that sum in full payment for the bridge.

Section 10 of the Highway Law reads as follows : “ Extraordinary repairs of highways or bridges.— If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, the commissioner of highways of the town in which such highway or bridge may be situated', may, with the consent of the town board, cause-the same to be immediately repaired or rebuilt, although the expenditure of money required may exceed the sum raised or authorized. ±o be raised for such purposes, as hereinbefore provided, and the commissioners of highways shall present the proper vouchers for the •expenses thereof to the town board, at their next annual meeting, •and the same shall be audited by them and collected in the same manner as amounts voted at town meetings.”

Section 11 provides for the convening of the town board in special .session by the supervisor, upon the request of the commissioners of highways, and the bills and expenses incurred in the erection or repairs of bridges may then be presented to and audited by the town board.

The consent of the board was a necessary prerequisite to the right •of the commissioner to construct the bridge. The duties of the board, so far as the construction of the bridge was concerned, ended when such consent was given. The work of constructing the bridge then devolved upon the highway commissioner, the official who had been selected by the electors of the town to take charge of such matters. The resolution of the board was unquestionably sufficient to authorize the commissioner to construct a new bridge. (The People ex rel. Slater v. Smith, 83 Hun, 432.) It was too late to • raise the question as to the necessity of building the bridge, after such con.sent had been given, and the contract made and the bridge constructed. The town board -assumed, in their resolution, to direct the highway commissioner as to the course he should pursue in constructing the bridge. They incorporated in their resolution a direction, that the commissioner should employ an engineer to receive proposals from responsible contractors for the superstructure and substructure, and to let the same to the lowest bidder.

All this was surplusage, for the manner of constructing the bridge was entirely within the jurisdiction of the highway commissioner. Whether he would build it by contract or employ his own men, or whether he would invite competitive bids, and whether he would let the contract to the lowest or highest bidder, were questions for his decision. It migh£ well be that the best interests of the town would be subserved by not letting the contract to the lowest bidder. The conduct of the commissioner in letting the contract to the relator is impugned by the respondents. They charge him with having acted corruptly and collusively with the relator in accepting the .highest bid, when there was a lower one from an equally responsible concern. We fail to find in the record any evidence to sustain these allegations.

We fail to find any competent proof that the contract made with the relator was not a proper and judicious one. The relator having fully performed its contract, there does not seem to have been any good reason for the refusal of the board to audit the claim at its full amount, and when the board refused so to do, and assumed conditionally to audit the claim for a less amount than was the relator’s just due, a rule of law was violated to the prejudice of the relator. In such a case the court has the power to amend or modify the determination of the body reviewed, and like power is possessed by the court when the determination is against the preponderance of proof to such an extent that if it were the verdict of a jury it would be set aside as against the weight of evidence. (Code Civ. Proc. § 2140.) This, we think, is such a case.

The determination of the board should be so modified as to allow the claim of the relator at the sum of $5,400, with interest thereon from the 5th day of June, 1895, with fifty dollars costs and disbursements.

Ward and Adams, JJ., concurred; Bradley, J., not voting.

The determination of the board of audit so modified as to allow the claim of the relator at the sum of $5,400, with interest from June 5, 1895, with fifty dollars costs and disbursements.


text:
    Christina L. Allen and George W. Henderson, as Administrators, etc., of Jonah E. Allen, Deceased, Plaintiffs, v. The New York Central and Hudson River Railroad Company, Defendant.

      Oontributovy negligence — a railroad collision with person riding in a buggy closed at the bach and sides.

    In an action brought by administrators to recover the damages resulting from the death of their intestate, caused as alleged by the negligence of the defendant, a railroad company, it appeared that the deceased was riding at a slow trot in the day time in a buggy, which was open only in its front, towards a crossing maintained by the defendant; that when he reached a point distant two to four rods from the crossing the engine of the train whistled, the horse became uncontrollable, ran upon the track and the deceased was killed; that had the deceased looked-out he could have seen the train in question at a distance of half a mile from the crossing.

      Held, that it was the duty of the deceased to have looked for the approaching train before he had reached a point so near the crossing, and that he was guilty of such contributory negligence as prevented a recovery.
    Motion by tbe plaintiffs, Christina L. Allen and another, as administrators, etc., of Jonah E. Allen, deceased, for a new trial on ■a case containing exceptions, ordered to be heard at the General Term in the first instance upon a nonsuit granted by the court after •a trial at the Orleans Circuit on the 1st day of October, 1891.

      Whedon <& liyan, for the plaintiffs.

      Charles A. Pooley, for the defendant.
   Lewis, J.:

This action is to recover damages for the killing of the plaintiffs’ intestate at a highway crossing upon the defendant’s railroad near Medina, Orleans county. The deceased was a farmer, seventy-two years of age, and had resided in the neighborhood of this crossing for twenty-one years; was familiar with the crossing, and the running of the defendant’s trains.

On the 30th day of October, 1892, he was returning home from the village of Medina in the daytime, and drove along a highway running at right angles to the defendant’s railroad track, about one mile west of the village of Medina. He was in a top buggy, drawn by one horse. He apjiroached the crossing from the north, upon a slow trot, and as he arrived near to the railroad track his horse became frightened and unmanageable, caused by the sharp whistle of an engine of the defendant, which was approaching the crossing from the east with a train of passenger cars. The horse probably ' saw the approaching train, which added to his fright. The horse, despite the efforts of the deceased to stop him, ran across the railroad trackthe buggy was struck as it was crossiug the track by the engine, and the plaintiffs’ intestate was instantly killed.

There was evidence tending to show negligence on the part of the defendant, in that no signal of the approaching train was given until it arrived within a very few rods of the crossing, when the whistle of the engine was sharply and loudly blown.

The railroad crosses the highway at grade, and the surface of the land in the vicinity of the crossing is level. There was nothing to obstruct the view of the approaching train by the deceased as he rode along the highway'from the north, for a distance of fifty or sixty rods from the crossing.

The undisputed evidence was that had the deceased at any time while driving that distance looked toward the approaching train, he could have seen it for a distance of at least a half mile east of the highway crossing.

There was an absence of any evidence tending to show that the deceased looked during that time to see if the train was approaching.

There was affirmative evidence that for a portion of that distance he did not make any observation to discover if a train was coming.

There were side curtains upon the buggy; they were down and the top was up. The deceased was- sitting upon the seat of the buggy, and, in order to look to the east, he would have been obliged to incline his body considerably forward. This he does not seem to have done, but drove along toward the track without apparently paying any heed or attention to the approaching train.

There was evidence tending to show that the rumbling of the train, as it moved over the track, could be heard as it left the village of Medina, and all along to the crossing, by a person upon the highway. It was a clear, pleasant day. The evidence shows that there were four or five small trees on, the easterly side of the highway, but they did not, at that season of the year, obstruct materially the view to the east from the highway.

It was unquestionably negligence on the part of the deceased to drive his horse, as the evidence shows he did, to within from two to four rods of the crossing without looking to see if a train were approaching from the east.

It was a passenger train, which left Medina daily about the time it did the day in question, so that we must assume that the.deceased knew that a train might be expected to arrive at the crossing at about that time,.

• The trial court, upon these facts, held that the plaintiffs had failed to show that the deceased was free from negligence contributing to his death, and, hence, directed a nonsuit. We think the direction was clearly right.

The plaintiffs’ motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

Bradley, J., concurred; Ward, J., not sitting.

Motion for a new trial denied, and judgment directed for the defendant upon the nonsuit.


text:
    The People of the State of New York, Plaintiff, v. The Life and Reserve Association of Buffalo, N. Y. Herman Waterman, as Receiver of The Life and Reserve Association of Buffalo, N. Y., and John P. Riley, Appellants; Ella Royce and Frank Spooner, Respondents.

      Assessment life insurance — reserve fund and death fund- — -provision for the increase of the latter — who may share in the death fund — rights of different classes of certificate holders.

    The court, in dissolving a corportion and distributing its property, does so upon the basis and considerations which exist when the action is commenced, and the rights of all the parties interested are adjusted as of that date.
    In an action begun to dissolve the defendant, a co-operative insurance company, and distribute its assets, a receiver was appointed and certain claims against the corporation were heard by a referee. Two of the claimants, Frank Spooner and Ella Royce, were beneficiaries under life reserve certificates, and one claimant, John P. Riley, was a beneficiary under a life certificate. It appeared that the defendant issued two kinds of certificates, one being known as a life reserve certificate and the other as a life certificate; that the life reserve certificates provided for the formation of a reserve fund while the life certificates did not that the constitution of the association created three different funds, known, respectively, as the reserve fund, the death fund and the safety fund; that the reserve fund was created by assessments levied upon the holders of life reserve certificates; that eighty-two per cent of the net death assessments levied upon all the members constituted the death fund, and that the remaining eighteen per cent was employed to create the safety fund.
    It was further provided by the constitution that there should be accumulated in the death fund a permanent sum, to be obtained either from any surplus resulting after the payment of death claims, or in certain emergencies by transferring from the reserve fund a sum, whose minimum was fixed at $10,000. IS appeared that when this action was begun there were death claims of both classes of policyholders, amounting together to §48,000; that there was no death fund whatever, and that there had been no transfer made to the death fund from the reserve fund of §10,000, or of any sum whatever.

      Hold, that as the transfer of this sum of §10,000 from the reserve fund to the death fund was directed to be made by the constitution of the association in certain stated contingencies which had arisen, the court would presume that such transfer had been made and would regard such sum as being in the death fund at the commencement of the action;
    That, upon the exhaustion of such sum, the court would not resume the operation, to be repeated until all the death claims were paid;
    That when the transfer was made the money, passing by means of it, lost its character as constituting part of the reserve fund, became a death fund, and must be distributed pro rata among the death claims of both classes of certificate holders;
    That the holders of life reserve certificates, and the representatives of such holders who had died, had an equitable lien upon all the reserve funds in the proportion which the amount they had contributed bore to the amount of the reserve funds left in the hands of the receiver ;
    That this rule applied to the balance due upon the death claims arising out of life reserve certificates, after deducting the amount received by the holders, thereof respectively, as well as to those life reserve claims upon_ which nothing had been paid;
    That the holders of mere life certificates, or of death claims arising from such certificates, did not share in the reserve fund except to the extent of the §10,000' transferred to the death fund, and that this rule would apply to any balance due upon death claims arising from life certificates, which would receive a pro rata distribution of the §10,000.
    Appeal by Herman "Waterman, as receiver of Tbe Life and Reserve Association of Buffalo, N. Y., from orders of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 14th day of May, 1895, by which orders the motions made by said receiver to confirm the report of a referee upon the claims of Ella Royce and Frank Spooner against the defendant were denied, the exceptions to said report filed by the said Ella Royce and Frank Spooner were sustained, and the receiver was directed to pay the said claims.
    Also, an appeal by John P. Riley, as beneficiary under a life certificate issued by the defendant, from an order made at the Erie Special Term on the 22d day of July, 1895, overruling the exceptions filed by him to the report of the referee.

      This action was commenced by the Attorney-General on the 23d of September, 1892, to dissolve the defendant, a co-operative insurance company, and distribute its assets. A receiver was appointed in the action, who took possession of the assets. Controversies having arisen among the different claimants to the funds and property of the corporation, the court appointed the Hon. Henry P. Allen a referee, who took proof concerning the same and made a report to this court under date of April 2, 1895. The particular claims upon which the report was made were those of Prank Spooner and Ella Royce, who were beneficiaries under certificates known as life reserve certificates held by members of tire association. The two cases are exactly similar as to the questions involved, and were considered together by the referee, by the Special Term and by this court.
    The company is a co-operative insurance company. It issued certificates to its members entitling them to certain rights and privileges in the corporation, the certificates being available in part ■during the life of the certificate holder, in case of partial or total disability, and being entirely available to the beneficiary named therein upon the death of the holder of the certificate. The constitution of the association provided for the issuing of two kinds of certificates or policies, one of which was known as a life reserve certificate and the other as a life certificate. The life reserve certificate provided, in effect, that in consideration of warranties and statements made in the application therefor, and the annual dues and all assessments to be paid at the office of the association within thirty days from notice of assessment, the holder became a member of the life and reserve association, and that the death fund of the association was set apart from assessments for the exclusive and sole purpose of paying claims arising from death or total disability.
    The certificate was for $1,000, and provided that a certain reserve fund should be created which should be securely invested in United States bonds and other securities, and that after four years of continuous membership an interest-bearing bond would be issued to the holder of the certificate, for the reserve fund set apart for it. It further provided that the interest accruing on such bond was to be applied semi-annually to the payment of future assessments; that thé principal was to be paid in six years, and that the certificate was issued and accepted subject to the provisions of the constitution and by-laws of the association.
    The life certificates were in the same form, excepting the provisions as to the reserve fund and the bonds that might be given therefor.
    The constitution of the association created three funds, known as the death fund, the reserve fund and the safety fund. The reserve fund was created by assessments made exclusively upon the holders of life reserve certificates. The death fund was created by equal assessments upon all the members of the association, whether holding life and reserve certificates or life certificates; that is to say, by -eighty-two per cent of the net avails of • the death assessments; the balance, eighteen per cent, constituted the safety fund, and the constitution further provided, in providing for the creation of the death fund and for its continuance to pay death losses, that “ there ■shall be accumulated in the death fund a permanent sum from surplus of death assessments after the payment of claims assessed for, or from transferring from the reserve fund, of not less than the proceeds of one death assessment of the maximum death claim •(ten thousand dollars), which shall be invested in such security as the laws of the State permit insurance companies to invest -their capital in, or deposited to the credit of the association in a bank or trust company, and which, together with all interest ■and accretions thereto, shall be held in trust unimpaired for the benefit of policy or certificate holders for the purpose of paying ■death or disability claims only.”
    At the commencement of this action there had accrued a number of death claims, duly proved, under life reserve certificates, amounting to about $23,000. There had also accrued death claims under life certificates to an amount exceeding $25,000. There had been no actual transfer by the officers of the association at the time of the commencement of this action from the reserve fund of an amount not less than the proceeds of one maximum death claim ($10,000), as authorized by the constitution of the association. The great bulk of the property of the association consisted of bonds, mortgages and other securities embracing the reserve fund of the association. As matter of fact, the corporation was insolvent, unable to pay the various claims upon it and fully protect the certificate holders living and the beneficiaries of those dead, and there was no money or funds in the death fund unless the said sum of $10,000 should be regarded and treated as a part of such death fund.
    The claimants, Spooner and Royce, demanded payment in full of their respective claims as being death claims due at the time the action was commenced and as entitled to be first paid out of the reserve fund. The referee reported against this claim and held that “ the reserve fund should be distributed to the living members- of the association of the life and reserve class in good standing and the representatives of the deceased members of such class of like standing dying either before or after the commencement of these proceedings, in the proportion which the amounts contributed by such members thereto respectively bear to the amount of such fund left in the hands of the receiver for distribution.” lie further reported that the holders of death claims under the life certificates were not entitled to share in the reserve fund and based that conclusion upon the provisions of the constitution which provided as follows (Art. 2, § 3): “No person holding a life certificate shall be entitled to, or shall in any manner derive any benefit from, the reserve fund, but such fund shall be and is for persons holding life reserve certificates only.”
    A motion was made at the Erie Special Term of the Supreme Court to confirm this report. Opposition was made to the confirmation by the counsel for Royce and Sjiooner; opposition was also made by those holding death claims growing out of life certificates on account of the exclusion of these certificates by the referee from payment out of the reserve fund. The Special Term made an order sustaining the referee in excluding the death claims under the life certificates, but refused to confirm that portion of the report with relation to the claims of Royce and Spooner, and held that Royce and Sjiooner were entitled to “ an equitable lien upon the reserve fund, for there was a promise and an agreement that the fund might be resorted to in certain contingencies. In the case of this claim that contingency arose; the positive provision of the constitution that its officers should transfer to the death fund from the reserve fund sufficient to meet such claim was disregarded by the officers of that association ; it was their duty to make such transfer; they have neglected to do so. Hnder the provisions of the contract and in equity, the officers of that association should have transferred sufficient moneys from the reserve fund to meet this death claim, and the fact that the transfer was not made during the life of this association gives to the beneficiary an equitable lien upon the reserve fund now on hand, to pay the death claims,” and the court ordered these claims paid in full.
    The reserve fund that passed into the hands of the receiver exceeded $1?5,000, more than sufficient to pay all the death claims that had matured before the commencement of this action. Prom the order of the Special Term John P. Riley, one of the death claimants under the life certificates, appealed. The receiver was directed to appeal from the said order by the court at Special Term.

      John Qxmneen, for the receiver, appellant.

      Hamilton Ward, Jr., for John P. Riley, appellant.

      William E. Prentice and George BaJker, for the claimants, Royce • and Spooner, respondents.
   Lewis, J.:

We concur with the Special Term that at the commencement of this action there should be regarded as in the death fund and as taken from the reserve fund, the amount of one maximum death assessment, being $10,000, but we do not concur with the conclusion that the claimants, Royce and Spooner, should be paid in full from- the said fund to the exclusion of other death claimants, whether of the life reserve or the life class. When the $10,000 is taken from the reserve fund and becomes a part of the death fund, it ceases to have any of the qualitiés or attributes of a reserve fund and becomes a common fund for the payment of death claims, and under the constitution and the certificates issued by the association, all the members of the association are entitled to share equally in the death fund, whether holders of life certificates or life reserve certificates.

The corporation was dissolved by proceedings taken in this action, and the effect of that dissolution reached back to the commencement of the action, so that the functions of the corporation ceased at that time; the $10,000 should be distributed pro rata upon all the proved and accrued death claims existing at that time.

But one transfer of the amount of a maximum death claim from the reserve fund to the death fund can be made at a time, and when no transfer has, in fact, been made before the commencement of the action, only one is made by the application of the equity doctrine that what should be done has been done. The operation cannot be repeated after the action is commenced, to meet the balance of the death claims then unpaid, or such as might arise after that time. The court in winding up a corporation and distributing its property, does so upon the basis and considerations that exist when the action is commenced, and the rights of all the parties interested are adjusted as of that date.

The holders of life reserve certificates, and the representatives of such holders who have died; have an equitable lien upon all the reserve funds of the association in the proportion which the amounts contributed by the holders thereof respectively bear to the amount of such fund left in the hands of the receiver for distribution. This-statement applies to the balance due upon the death claiips arising out of life reserve certificates after deducting the amount received by the holders thereof respectively on the distribution of the said $10,000, as well as to those life reserve claims upon which nothing has been paid.

Those holding life certificates only, or death claims arising from life certificates, do not share in the reserve fund aside from the said $10,000,, and this statement applies to the balance due on such death claims arising upon life certificates as will receive a pro rata distribution of the said $10,000.

The order of the Special Term should be modified to conform to-the foregoing vie <vs, and as so modified affirmed. Costs and disbursements of the appeal should be allowed to each of the parties represented by counsel, as heretofore stated, but not more than three bills of costs and disbursements in all, which should be paid out of the funds of the association in the hands of the receiver.

Bradley and "Ward, JJ., concurred.

Order modified, as indicated in memorandum of Lewis, J.


text:
    Ellen S. Luce, Respondent, v. Arthur S. Gray and Charles Lafferty, Appellants, Impleaded with Others.

      Deed by a father to his son —promise by the son to pay $700 to another child — power of the father to satisfy a moi'tgage given by the son to secure the agreement — the liability of the father to support the child is a sufficient consideration.

    Upon the trial of an action brought to foreclose a mortgage given by the defendant, Sylvester Gray, to his father, Zebina Gray, and to have vacated and canceled of- record a discharge of said mortgage executed by the mortgagee, Zebina Gray, it appeared that in 1855 Zebina Gray owned a farm which was subject to a mortgage of $500 ; that his children consisted of Sylvester Gray, the plaintiff, Ellen S. Luce, then an infant, and Lucy J. Gray, afterwards Lucy J. Swift; that Sylvester Gray wishing to leave home, Zebina Gray, in. order to induce him to remain, promised to deed to him the farm, provided Sylvester would pay his parents §120 a year while both lived, and §98 a year if only one were living, and would also make certain payments to each of the daughters. Under this agreement Zebina Gray deeded the farm to Sylvester Gray, who gave to Zebina Gray the mortgage in question, which contained a condition complying with the verbal agreement in regard to the payments to the two daughters, to which agreement both daughters assented. Sylvester Gray compromised and settled the claim of Lucy J. Gray and paid a part of the sum due the plaintiff, but there remained unpaid to her the sum of $700. In 1870 Sylvester Gray mortgaged a part of the premises to Spencer Lyon; and in August. 1871, he and his wife reconveyed the .property to 'Zebina Gray, who, in September, 1871, satisfied of record the mortgage in question, without the knowledge or consent of the plaintiff, who was then of full age. In December, 1872, Zebina- Gray and his wife mortgaged the premises to Maria C. Bull. Zebina t died in 1888 and his wife in 1884.
    The Bull and Lyon mortgages were both foreclosed and the defendants in the present action claimed under them.

      Held, that the plaintiff took under the agreement an immediate vested interest in the mortgage, given in 1855 by Sylvester Gray to his father, to the extent of $700;
    That this was not in the nature of a testamentary provision, made for her by her father, revocable before his death, and revoked when he satisfied the mortgage;
    That as the plaintiff was an infant when the mortgage was given, and as her father was bound to support her, this constituted a .consideration for the promise for her benefit W'hich was contained in the mortgage.
    Appeal by the defendants, Arthur S. Gray and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Allegany on the 29th day of April, 1895, upon the report of a referee.

      James C. Leggett, for the appellants.

      O. D. Da/oie and J. J. Inman, for the respondent.
   Lewis, J.:

This action was brought to foreclose a mortgage, made by the defendant Sylvester Gray to his parents, Zebina and Zoah Gray, deceased, upon certain premises in Allegany county, and to have vacated and canceled of record a discharge of said mortgage which had been executed by the mortgagee, Zebina Gray, and recorded in the clerk’s office of said county.

The action was tried before a referee.

It was found by the referee, upon evidence sustaining the findings, that Zebina Gray was, in the year 1855, the owner of a farm situated in the county of Allegany, (containing 125 acres, upon which he had resided, with his family, for many years. He had three children, the defendant Sylvester Gray, Lucy J. Gray, now Lucy J. Swift, and the plaintiff, Ellen S. Gray, now Ellen S. Luce. The son and the daughter Lucy were then of full age and were married. The plaintiff was a minor of about the age of fourteen years. Sylvester and his family, at the time of the conveyance, were living in a house upon the farm, with his parents. He had a desire to move to the west, and so informed his parents.

They were anxious that he should remain at home. Sylvester made it a condition of his remaining that he should have a deed of the farm, and it was arranged between the parents and Sylvester that the parents should convey the farm to him upon condition that he should remain at home, and that they should be permitted to live upon the farm, and Sylvester to pay them $120 a year so long as they both lived, and, in cáse of the death of one of them, he should thereafter pay to the survivor $98 a year; and that he should pay to Lucy J. Gray the sum of $700 and also pay Ellen S. Gray the sum of $900, $700 of which was secured to be paid by the condition in the mortgage and $200 of which was secured to be paid by the notes of Sylvester Gray.

The agreement, so far as it appears from the case, does not seem to have been committed to writing.

The farm was accordingly deeded to Sylvester, and he remained in possession, and in the year 1861 he executed and delivered to his father the mortgage in question upon the farm deeded as aforesaid, and, in addition thereto, a lot owned by Sylvester, containing some twenty-five acres of land, was included.

The deed to Sylvester was subject to a mortgage of $500 upon the farm.

The mortgage given by Sylvester to his father contained the following condition: “ This grant is intended as a security for the payment of the sum of $120 annually, during the natural lifetime of the said Zebina and Zoah Gray, and, in case of the decease of either the said Zebina or Zoah Gray, thereafter such decease the said Sylvester Gray is to pay $98 annually, and at the decease of the said Zebina and Zoah, the said Sylvester Gray is to pay Ellen S. Gray the sum of $700.”

Sylvester, prior to the execution of the mortgage, by an arrangement with his sister Lucy, had compromised and satisfied her claim of $700, and $200 of the $900 due the plaintiff had been paid to her, leaving unpaid to her the sum of $700, the amount mentioned in the mortgage. The mortgage was duly recorded in the clerk’s office, and was returned to Zebina Gray, who retained possession thereof until the 23d day of August, 1871. It was understood and agreed between the parties to the mortgage that the same was in full settlement and payment for the purchase price of the land conveyed to Sylvester. The plaintiff and her sister, Lucy, were aware at the time the contract was made of the provision for their benefit, and assented thereto.

On the 17th day of December, 1870, Sylvester Gray incumbered ninety acres of the premises mentioned by a mortgage to one Spencer Lyon of $1,700, which was duly recorded. ■.

On the 23d day of August, 1871, Sylvester Gray and his wife,. by a warranty deed containing full covenants, conveyed the home farm covered by the first-mentioned mortgage to his father, Zebina Gray. The consideration expressed therein was $2,700.

The deed was duly recorded, and Zebina Gray, by a paper dated the same day, and acknowledged on the fifteenth day of September thereafter, certified that the mortgage first described was redeemed, paid off and discharged, which paper was recorded in the proper clerk’s office. Ellen at this time was of full age, and was married. The discharge of the mortgage was without her knowledge or consent; no pai’t of the $700 lias ever been paid. Zebina Gray and Zoali, his wife, thereafter, and on the 20th day of December, 1872, executed and delivered to one Maria 0. Bull a mortgage upon said premises for the consideration expressed of $1,200, which was duly recorded. The defendants appealing derived title to their portions of the premises under the foreclosure and sale of the two mortgages mentioned as given by Sylvester Gray to Lyon and by Zebina Gray Bull.

Zoah Gray died in the year 1884, and Zebina in the year 1888.

There was an absence of any direct evidence showing the actual value of the farm at the time it was conveyed to Sylvester.

The referee found as a conclusion of law from the foregoing facts that the plaintiff had a vested interest in the mortgage to the amount of the sum mentioned, $700, and that her father had no power or authority to discharge the lien of said mortgage so far as plaintiff’s interests were concerned, and he directed judgment for the sale of the premises for the satisfaction of the plaintiff’s claim, with costs of the action; from which judgment defendants, Arthur S. Gray and Charles Lafferty, grantees of the premises, appealed. The question is presented, was the transaction described designed and intended by the parties thereto to vest in the plaintiff a present right to'the $700, or was the transaction in its nature testamentary, and, therefore, revokable at the pleasure of the mortgagee.

An examination of the case has led our minds to the same conclusion as that reached by the referee.

The parents owned this farm. It was probably of the value of from $3,000 to $4,000, incumbered, as stated, to the amount of $500. Their son, upon whom they relied to work and manage the farm, presented the alternative to them of giving him title to the farm or of his leaving them and moving to the west. So far as appears from the case the farm, with the tools and stock thereon, constituted the entire property of the parents. They had two daughters. One had arrived at age, was married and was living in a home of her own. The other was biff fourteen years of age; she was living with her parents, and was dependent upon' them for her means of support and education. The parents very naturally wished and intended, in making a disposition of their property, that the daughters should have an equitable portion thereof.

At the time of the giving of the mortgage in question Lucy had already received her portion, and provision was made in the mortgage for the payment to the plaintiff of the balance of the $900-which had been set apart for her. It was altogether improbable that the father, under the circumstances, had in mind to make the payment of the $700 to the plaintiff dependent upon any other condition than the one mentioned in the mortgage, the death of the father and mother. The father did in fact subsequently satisfy the mortgage of record, and that is urged as evidence that he originally intended the provision for the plaintiff to be of a testamentary character.

The circumstance does not impress us as being very significant. He was a farmer and probably unacquainted with the rules of law governing such a transaction. He being the mortgagee, and having possession of the mortgage, may very naturally have concluded that he had the power to satisfy it of record, without having given any thought, or attention to the question of his power so to do. Living as he did in the same house with Sylvester, he presumably was aware at the time the mortgage was executed that Lucy’s claim had been satisfied;. it is quite improbable that he at that time had in mind to retain to-himself the right and power to thereafter cut off the provision he had secured for the plaintiff. The situation of the plaintiff had somewhat changed at the time the mortgage was discharged of record. She was then an adult. She had married; had left her former home, and her father probably thought her husband could. care for her. '

The son Sylvester was a party to all these transactions. He was living in .the same house with his father when the mortgage was executed, and presumably was entirely familiar with his father’s. wishes and intentions at that time. His subsequent conduct shows, that he must have understood that it was a gift m prcesenti, for it appears from the eviden.ce, and is so found by the referee, that after the execution of the mortgage in question, and before the same was satisfied of record, he offered to pay the $700 to the plaintiff. The plaintiff and her husband declined to receive the money for the reason, as stated by them, that they had no means of investing it, and that they considered it perfectly safe, and preferred to have it remain as it was.

It is very improbable tliat tliis offer would have been made by Sylvester had he not understood that the provision made for the plaintiff in the mortgage was intended as a present gift to her, and not dependent upon any action which might thereafter be taken by her father.

Yery little assistance is afforded us in the decision of the questions here presented by other adjudications, the decision of each case depending so largely upon its'own facts.

The respondent’s counsel relies upon Townsend v. Rackham (143 N. Y. 516) as an authority for his contention. The trial court in that, ease found that the mortgages involved in that action were executed upon the understanding and belief that the whole arrangement was testamentary in its character, and in the nature of a will. Here the exact reverse of that is found.

The plaintiff being at the time of the giving of the mortgage an infant, her father was required to support and provide for her. This obligation furnished a sufficient consideration for the provision contained in the mortgage for her benefit.

We fail to find any reason for disturbing the judgment appealed from. It should be affirmed, but without costs of this appeal.

Bradley, Ward and Adams, JJ., concurred. ■

Judgment affirmed, without costs of this appeal.


author: Hardin, P. J.:

text:
    Elizabeth O’Gorman, Appellant, v. James R. O’Gorman, Respondent.
    Order affirmed, with ten dollars costs and disbursements.— Appeal from an order of the Oswego Special Term, which required the plaintiff to deliver to the defendant sworn copies of her bank pass books, verified, described in the petition, within five days after the service of a copy of the order, or at her option give the defendant a written authorization directed to the Oswego City Savings Bank and the Oswego County Savings Bank, authorizing the officers of the said banks to permit the defendant and his attorney to inspect and make a copy of the bank pass books of the laintiff, now in the possession of the anks.—
   Hardin, P. J.:

There was some conflict in

the affidavits used at the Special Term, and the judge presiding has resolved the conflict in favor of the petitioner. It appears that the laintiff had an account in the respective anks mentioned in the petition, and that the pass books used in connection with the account have been returned to the savings banks, and that the banks have a custom of retaining pass books after dosing accounts with a customer, andaré disinclined to allow inspection of such pass books without the consent of the party in whose favor they were made while the account was current. The bank officers’ affidavits furnish no good reason why the pass books should not be inspected. It is apparent from the affidavit of the plaintiff that she has no serious or important objection to the inspection of the pass books, or to a copy being delivered thereof. The Special Term was called upon under all the proofs before it, to exercise its discretion in respect to whether an inspection should be ordered. We are not prepared to say that the Special Term exceeded its discretion in the premises. (Sibley v. New York Times Pub Co , 80 Hun. 561; Finlay v. Chapman, 119 N. Y. 404.) We think the order should be affirmed with ten dollars costs. Order affirmed, with ten dollars costs and disbursements. Martin and

Merwin, JJ., concurred.


text:
    William Seward Webb, Respondent, v. William H. Morrison and Another, Appellants.
    Judgment affirmed, with costs.—
   Appeal from a judgment entered in Herkimer county on the 13th day of August, 1894, upon findings of fact and conclusions of law made at Special Term. The action was brought to reform and then enforce specific performance of a contract for the purchase of lands known as lots 6 and 7 of township 38, Totton & Crossfield’s purchase, in the town of Long Lake, Hamilton county.— Per Curiam: From the appeal book it would seem that the defendants sought to prepare a bill of exceptions upon which'to obtain a review of the decision made at Special Term. However, it appears that considerable portions of the evidence given at the trial are inserted in the appeal book. Findings of “ fact were made, which are very full and elaborate, and upon looking into the evidence found in the appeal book, it is quite apparent that the evidence, though conflicting, fully sustains the findings of fact made by the trial judge. He delivered an opinion which extensively considers all the essential questions of law which arose during the progress of the trial, and which form the basis for the conclusion which he reached, and the opinion is satisfactory upon the' essential questions of law involved in the case, and renders it unnecessary that a further discussion should be had of the facts or of the law involved in the case. (Southard v. Curley, 134 N. Y. 148; Allison Brothers Co., v. Allison, 63 N. Y. St. Repr. 1.)

Present —Hardin, P. J., Martin and Merwin, JJ.


text:
    Arthur McKeown, Respondent, v. The Utica City National Bank, Appellant, Impleaded with Others.
   Order affirmed, with ten dol-

lars costs and disbursements.

Hardin, P. J., not sitting.


text:
    Peter A. Ward, as Receiver of the Property and Effects of Norman Petrie, Respondent, v. Norman Petrie and Flora Petrie, Appellants.
    Judgment and order affirmed, with costs.
   Hardin, P. J.:

The jury were instructed that ■ unless fraudulent intent was found to exist on the part of both defendants the mortgage should be found to be valid. The evidence is sufficient to sustaiji the finding that the mortgage 'was fraudulent as t'o both mortgagor and mortgagee, and made to hinder and delay the collection of the debt represented, by the plaintiff, as receiver. (Billings v. Russell, 101 N. Y. 227; Baldwin v. Short, 125 id. 553; Syracuse Chilled Plow Co. v. Wing, 85 id. 421.) We think the plaintiff, as receiver, was in position to attack the mortgage. (Code Civ. Proc. §2469; Alden v. Clark, 86 Hun, 357; Stephens v. Perrine, 143 N. Y. 482.) The action was to recover damages sustained by fraud. (Buffalo Lub. Oil Co. v. Everest, 30 Hun, 586; Quinby v. Strauss, 90 N. Y. 664; Murtha v. Curley, Id. 372; Pilcher v. Levino, 80 Hun, 399; Mandeville v. Avery, 124 N. Y. 377; Otis v. Crouch, 89 Hun, 551.) We think none of the exceptions taken upon the trial present an error requiring, us to interfere with the verdict. Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concurred.


author: Per Curiam:

text:
    Mary E. Beckwith, as Administratrix, etc., of James S. Beckwith, Deceased, Respondent, v. New York, Ontario and Western Railway Company, Appellant.
    Judgment and order affirmed, with costs.—
   Per Curiam:

When before this court on a former appeal it was held in this case that the questions whether the plaintiff’s intestate was free from contributory negligence, and whether the defendant was guilty of negligence which caused the plaintiff’s intestate’s injury, were questions of fact which should have been submitted to the jury. As on the last trial the evidence on the part of the plaintiff was essentially the same as on the former trial, and as the evidence given by the defendant was not controlling upon those questions, the former decision was followed and they were properly submitted to the jury. After a careful perusal of the evidence contained in the record nowbefore us, we again reach the conclusion that the questions whether the defendant was negligent, whether such negligence caused the injury which resulted in the death of the plaintiff's intestate, and whether the plaintiff’s intestate was free from contributory negligence, as well as the question of damages, were all questions of fact and properly submitted to the jury. We have examined the various exceptions to which our attention has been called by the appellant’s brief, but have found none that would justify us in disturbing the judgment or that requires special consideration. Judgment and order affirmed, with costs.

Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    Frank L. Vosburgh, Respondent, v. George A. Armstrong and Another, Appellants.
   Judgment and order affirmed, with costs.


text:
    The People of the State of New York, Appellant, v. Charles Ames, Respondent.
   Interlocutory judgment reversed and the demuiTer disallowed and proceedings remitted to the Court of Sessions of Oswego county.


text:
    John Darwin Barrett, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Judgment and oi*der affirmed, with costs.—
   Per Curiam:

A careful examination of the ■evidence contained in the appeal book has led us to the conclusion that the question whether the defendant was liable in this action under the doctrine of Rounds v. D., L. & W. R. R. Vo. (64 N. Y. 129); Cohen v. D. D., E. B. & B. R. R. Co. (69 id. 170); Hoffman v. N. Y. C. & H. R. R. R. Co. (87 id. 25); McCann v. Sixth Ave. R. R. Co. (117 id. 505): Hogan v. C. P., N. & E. R. R. R. Co. (124 id. 647); Ansteth v. Buffalo Railway Co. (145 id. 210), and other kindred cases was a question of fact, was properly submitted to the jury and that its verdict should be upheld. Nor do we think that the judgment should be disturbed upon the ground that the plaintiff’s recovery was excessive. In this case the plaintiff lost his right hand and one of his legs was seriously injured. After examining the evidence, which shows the extent and character of the plaintiff’s injuries, we find no reason to believe that the jury was misled by passion or prejudice or was coerced by any improper influence. We have examined the various exceptions to which our attention has been called by the appellant in its brief, but have found none which requires us to reverse thejudgment. Judgment and order affirmed, with costs.

Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    Julia T. Munroe, Respondent, v. Jacob Crouse and Another, Appellants, Impleaded with Others.
   Judgment and order affirmed, with costs.


text:
    Hezekiah Howe and Others, Appellants and Respondents, v. William H. Clark and Others, Respondents and Appellants.
   Judgment affirmed, without costs of the appeals to either party.


text:
    Hezekiah Howe and Others, Respondents, v. William H. Clark and Others, Appellants
   Judgment reversed and a new trial ordered with costs to abide the event.


text:
    In the Matter of the Petition of Morris S. Lewis for Letters of Administration upon the Estate of Charles Wolff, Deceased; Morris S. Lewis, Appellant; John A. Rider, County Treasurer of the County of Broome, Respondent.
   Decree or order reversed, with ten dollars costs and disbursements payable out of the estate. Held, that the petitioner was a creditor of the deceased within the provisions of section 2660 of the Code of Civil Procedure, and as such entitled to letters of administration in preference to the county treasurer.


author: Parker, J.;

text:
    Walter Walrath and Others, Appellants, v. William H. Abbott, Respondent.
    Judgment reversed and a new trial ordered, with costs to abide the event.—
    Appeal from a judgment entered upon the decision of the court at Special Term in favor of the defendant, dismissing the plaintiffs’ complaint, with costs.—
   Parker, J.;

We do not think that the facts of this case are materially changed from those which appeared when the case was before us on a former appeal. (See 75 ITun, 445 ) It is true that it now appears that the defendant did gi\’e the mortgage upon the premises required by order of the court to be given by him upon receipt of his conveyance of the lunatic’s lands. It also appears that such mortgage passed into the custody and control of Walrath, the committee, and that the $500 mortgage against Nelson was given to and received by him as a payment thereon; that subsequently the balance due upon such purchase-money mortgage was paid to the committee in cash, and such mortgage discharged, but the question still remains whether the receipt by such committee of the worthless $500 mortgage against Nelson must be deemed a j>ayment to that extent, upon the purchase price which the defendant contracted to pay. It is conceded that such purchase-money mortgage must be treated as real estate in the custody of the committee, and it is also plain that a committee has no authority to sell or dispose of a lunatic’s real estate except by order of the court. (§ 2339, Code.) For that reason any act of the committee which practically operated to exchange the purchase-money mortgage, so in his custody, or any portion thereof, for another and a worthless one, was without authority and in excess of his powers. It would hardly be contended that if the committee without any order of the court had conveyed a farm of the? lunatic’s to the defendant in exchange for such mortgage, a title could be so acquired by defendant which he could hold against the lunatic or his heirs, nor that such a title could be sustained upon the theory that defendant had the -right to presume that the committee had procured the proper order. And inasmuch as the committee had no more authority to dispose of this mortgage than he had to sell a farm, it is difficult to see how he could lawfully accept the transfer of any property in exchange for, or asa satisfaction of it. It is because this mortgage in the committee’s hands must be considered as real estate, that the case of Pickersgill v. Read, (5 Hun, 170) is not applicable. It was said by Justice Martin when the case was here before, that Walrath (the committee) being at most amere agent of the court, had no power to discharge the defendant’s indebtedness without actual payment. It was also there said that it was not apparent “ how the defendant could discharge his liability to pay the purchase price by an assignment of a mortgage to walrath, who was not authorized by the court to receive it.” These remarks seem as applicable to the case now as they were then and seem decisive of this appeal. (75 Hun, 452.) Moreover, it is apparent from the facts now before us that both the defendant and the committee were ignorant of the worthlessness of the Nelson mortgage, hence the case is one of a mutual mistake of facts, and the receipt of the Nelson mortgage under such circumstances cannot be considered as payment on defendant’s original debt. Such was the decision when the case was here before, and it is as applicable now as it was then. (See75 Hun, 453, and cases there cited.) As to the right of these plaintiffs to maintain this action, that question was settled in their favor when the case was here before, and is not now an open one. We, therefore, conclude that the court below erred in holding that the purchase price had been fully paid and for that reason dismissing the plaintiff’s complaint. The judgment should be reversed and a new trial granted, with costs to abide the event.

Menvin, J., concurred. Hardin, P. J., not voting.


author: Parker, J.:

text:
    Priscilla Stoddard, Respondent, v. Jane D. Brazell, Appellant.
    Judgment of the Justice’s Court and that of the County Court reversed, with costs.—
   Parker, J.:

It is impossible to determine from the evidence just how the justice made up his judgment of sixty dollars and forty-nine cents damages against the defendant, but it seems very clear that no such amount is warranted by the proofs before him. The plaintiff swears that on August25,1891, there was a balance duo her of eighty-four dollars and four cents, and she put in evidence Exhibit A, as showing the items of debit and credit upon which she based that claim. Conceding that all such items are correct, and properly proven, yet that balance falls short of the amount allowed by the justice, and his right to add to that balance must be found in the plaintiff’s evidence, • wherein she claims that there were certain other items not included in that account, and to which she was entitled. Upon none of these ■additional items, save, perhaps, the item of interest, has she made proof sufficient to entitle her to recover for them. Thus no evidence is given of any fact showing that defendant owed eight dollars and eighty cents for surplus paid her for use of her premises. The only evidence is that a charge was made for that amount, which, of course, is no proof of a liability to pay it. Also the plaintiff shows no facts whatever tending to prove the defendant liable for any injury her horse may have .sustained in defendant’s barn. There is a total failure of any evidence of negligence or of liability for such injury; yet she has added an item of twelve dollars for such damage. So the evidence does not show that the defendant had anything whatever to do with the pitcher broken at plaintiff’s house and for which she has charged five dollars. Nor could she be charged ninety -cents for a jar left by plaintiff at her house. It was left there with butter in it, and there •is nothing to show but that it is still awaiting plaintiff’s call for it, or, indeed, that it was not sold with the butter. As to the jar, I and the whip, and the rubbers, and measure, and bags, there is no proof that defendant took them, nothing whatever to connect her with their loss, nothing to show that she was under the slightest obligation to protect them. The item of three dollars for keeping defendant’s family and horse at plaintiff’s house is not sufficiently proven to show any liability on defendant’s part to pay it. The plaintiff merely swears that she made the charge, and that it was worth that to keep them. She does not tell how many there were, how long they were kept, nor any fact upon which she bases her conclusion that it was worth that sum, nor does she give any fact showing why defendant, a married woman, living with her husband, should pay for the keep of his family. The credits which the plaintiff allows against these ad-, ditional items, and which are not on her bill, Exhibit A, amount to six dollars and sixty cents. These stand conceded as items for which she should have been credited. They are so much of defendant’s counterclaim which plaintiff concedes to be correct. Clearly giving defendant the benefit of these credits, there are no items proven that should run the balance of forty-eight dollars and four cents up to sixty dollars and forty-nine cents. We do not attempt to modify this judgment by adjusting the account between those parties. The evidence is very conflicting as to defendant’s counterclaims, and as to the amount she claims to have paid upon the account, and for which she has received no credit. Several items of the account, Exhibit A, are also disputed by her, and the proof as to the accuracy of the account is also very slight on plaintiff’s part. Neither does it very clearly appear why defendant, and not her husband, should be liable for the items .of such account. We think the merits of the case can be more certainly determined by a new trial, and since the judgment appealed from is evidently not warranted by the proof it must be reversed. The judgment of the justice and that of the County Court reversed, with costs.

Hardin, P. J., and Merwin, J., concurred.


text:
    Charles McLouth, Respondent, and Pliny T. Sexton, Appellant, v. George C. Hunt anOthers, Respondents.
   Judgment affirmed on the opinion of the referee, costs of this appeal to the parties respectively, payable out of the income of the fund.


text:
    John J. P. Read, Appellant, v. August Simon, Respondent.
   Judgment and order affirmed.


text:
    In the Matter of the Disposition of the Real Estate of Edward Howard, Deceased; Phœbe J. Hogan, Contestant, Appellant; Daniel Kavanaugh, Petitioner, Respondent.
   Judgment affirmed, without costs.


text:
    Charles R. St. John, and Another, Respondents, v. Oliver A. Colvin, Appellant.
   Judgment affirmed.


text:
    Joao Francisco De Freitas, Respondent, v. William H. Greenhow, Appellant.
   Judgment affirmed.


text:
    Fall Brook Coal Company, Appellant, v. Robert C. Hewson, Respondent.
   Judgment and order affirmed.

Bradley, J., not voting.


text:
    Jaccheus Colby and Others, Appellants, v. James H. Doty and Others, Respondents.
   Interlocutory judgment affirmed, with costs.


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    First National Bank of Perry, Respondent, v. Joseph E. Cole, as Receiver, etc., Appellant, Impleaded with Others.
   Judgment affirmed, -with costs.


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    John N. Church, Respondent, v. The People’s Building, Loan and Saving Association, Appellant.
   Judgment reversed and new trial granted, costs to abide the event, unless the plaintiff within twenty days stipulates to reduce the recovery of damages to 8371, and interest from December 2,1894, and. in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.

Adams, J., not sitting.

See opinionin O'Malley v. Same (ante, p. 572.)


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    Mary D. Wall, Respondent, v. John C. Howk, as Executor, etc., of Elisha M. Wall, Appellant.
   Judgment affirmed, with costs, payable out of the estate.


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    George Weber, Respondent v. Nancy R. Houck, Appellant.
   Judgment and order affirmed.


author: Adams, J.:

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    David Watters, Respondent, v. Waring S. Weed and Others, Appellants.
    Judgment and order reversed and new trial granted, costs to abide the event.—
   Adams, J.:

The defendants in this action, at the time of its commencement, were engaged in the business of manufacturing lumber. Their mill was located at Glen Hazel, Penn. On the 19th day of October, 1891, they entered into a contract with the plaintiff, by the terms of which the plaintiff agreed to cut and deliver on board tram cars, all the lumber of a certain kind therein described, which was located upon a tract of land in the vicinity of defendants1 mill, at the rate of eight dollars per thousand feet. The day following, the plaintiff took possession of the land upon which this timber was standing, and commenced operations under this contract. Preliminary to the work of cutting and removing this timber the plaintiff constructed slides down the sides of the mountain; he also constructed camps and barns and a house, and built a tram road, and he thereupon proceeded to cut the timber, and did actually cut and load upon the cars about 537.000 feet of logs, for which he was duly paid in accordance with the terms of the contract. While in the process of cutting the timber in question, and about the middle of December, 1891, the sheriff of Elk county, Pennsylvania, served upon the plaintiff an order in the nature of an injunction, restraining him from proceeding any further in the work of cutting said timber. In obedience to the mandate of the court the plaintiff did abstain from any further attempt to cut the timber upon said premises, and before the injunction order ivas vacated the season for cutting timber had expired. The plaintiff was unable to proceed any further in the fulfillment of his contract. He was prevented from cutting the timber which remained, and which amounted, as he alleges, to about one and one-half million feet, and he claims to have’ sustained damages in the sum of $3,000 by reason of loss of profits in not being permitted to cut the same. This action was brought to recover that amount, and was tried upon the theory that the defendants availed themselves of the injunction order in question, which it appears was obtained at the instance of a stranger to the action, to prevent the plaintiff from the performance of his contract, and the principal question submitted to the jury was whether or not the plaintiff’s inability to avail himself of his contract was attributable to improper interference on the part of the defendants. On this issue the nury rendered a verdict in favor of the plaintiff for the sum of $609. We have examined , the record in this case with great care, and as a result of that examination have reached the conclusion that the verdict of the jury was against the weight of evidence. So far as we are able to discover, the plaintiff entered upon the performance of his contract with every indication of a desire on the part of the defendants that it should be fulfilled in accordance with the terms thereof, and he was proceeding to fulfill the same when he was prevented by the injunction order, issued out of a Pennsylvania court, at the instance of a party who, so far as the record discloses, bore no relation whatever to any of the parties to this action. There is not tne slightest evidence that the defendants instigated or were in any manner instrumental in procuring that order. No motive whatever is disclosed for any such action upon their part, but, upon the contrary, the fair inference seems to be that it was quite as annoying in its effect upon them as upon the plaintiff, and that upon being in- • formed of its service they undertook at once in good faith, to procure its vacation, but were not immediately successful in the attempt. It is true that they instructed the plaintiff not to cut any more timber after the order was served, but this direction appears to have been cautionary merely, and the fact that the order was served upon them several days before it was upon the plaintiff, and that they did not attempt to prevent his cutting timber until it was actually served upon him, furnishes a pretty strong evidence that they were not very anxious to avail themselves of it as an excuse for any interference on their part. Considerable stress seems to be laid upon the fact that when the plaintiff handed the injunction order to the defendant Mundy, the latter stated that it was what he had been wanting, and the inference sought to be drawn from this interview .is that Mundy had been anticipating the service of the paper, and intended to express his satisfaction that it had been served. It is doubtful, however, if the evidence will warrant the construction contended for by the plaintiff, and apparently given to it by the jury, for the plaintiff himself testified that in connection with this remark Mundy directed him to go right back over there, and said that he would furnish a bond and have the timber released by the following Monday so that he, the plaintiff, could go on cutting. It is true, as has already been suggested, that the defendants were not at first successful in tlieir attempt to have the order vacated, but there is no proof that they did not do all that lay in their power to accomplish that object. Ultimately, however, the order was vacated, but it was then too late in the season to cut any more timber because, as was stated to the plaintiff by Mundy, the timber was not of much'value when cut with the sap in, and in such statement the plaintiff seems to have fully concurred. Another fact appears in the case which is uncontroverted, and to which the jury does not appear to have attached the importance it deserves; that fact is that before this action was commenced, and possibly before the plaintiff had conceived the idea of charging the defendants with any responsibility, he had testified in another proceeding in the State of Pennsylvania, that he was prevented from fulfilling his contract solely by reason of the injunction. Upon the whole case, therefore? we are inclined to> think that if there was any evidence upon which the plaintiff could fairly rest his contention, such evidence, in view of all the facts of the case, was hardly sufficient to warrant the jury in reaching the conclusion it did, and that, consequently, there should be a new trial' of the action, with costs to abide the event.

All concurred.


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    Adelbert P. Little v. Alfred W. Gallus and Others.
   Reargument ordered.


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    Joseph R. Guernsey, as Executor, etc., of Lydia A. Guernsey, Respondent, v. Elias R. Gault and Others, Appellants.
   Judgment affirmed, with ten dollars costs and disbursements.


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    Frank M. Stearns, Appellant, v. Harvey W. Tew and Another, Respondents.
   Judgment affirmed, with costs.

Ward, J., not sitting.


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    Peter A. Porter, as Receiver, etc., Appellant, v. James F. Murphy. Respondent, Impleaded with Others.
   Order affirmed, with ten dollars costs and disbursements.


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    John R. Langworthy, Respondent, v. Elverton R. Crissey, Appellant.
   Judgment and order affirmed.

Ward, J., not sitting.


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    Mary Jane Campbell, Appellant, v. Joseph B. Robinson. Respondent, Impleaded with Others.
   Judgment affirmed, without costs.


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    Anne Robinson, Respondent, v. Alexander Ferguson, Appellant.
   Judgment affirmed, without costs.


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    Albert Brock, as Administrator, etc., of Archie S. Brock, Deceased, Respondent, v. The Rochester Railway Company, Appellant.
   Judgment and order affirmed.


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    Catharine Mahoney, Appellant, v. City of Niagara Falls, Respondent.
   Order affirmed, costs of this appeal to abide the event.


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    The People of the State of New York v. The Life and Reserve Association of Buffalo, New York.
   Order modified as indicated in memorandum of Lewis, J. (See opinion in Same v. Same, ante, p. 592.)


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    Edwin E. Whitcomb, as Administrator, etc., of Frederick L. Whitcomb, Deceased, Respondent, v. Postal Telegraph Cable Company, Appellant.
   Judgment and order affirmed.


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    Charles E. Woodward, Respondent, v. Fifteenth Ward Loan Association, Appellant.
   Judgment and order affirmed, with costs.


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    D. F. Rose and H. R. Rose, Respondents, v. Thomas J. Reynolds, Appellant.
   Judgment of Monroe County Court affirmed, with costs.


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    Ida S. Brockett and Willis J. Brockett, Respondents, v. Flynn Whitcomb, as Executor, etc., of Samuel Whitcomb, Deceased, Appellant.
   Judgment affirmed, with costs payable out of the estate.


author: Ward, J.

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    Jonathan Osmun, Appellant, v. Albert N. Barker, Respondent.
    Judgment affirmed.
   Ward, J.

(dissenting): This action was commenced in Justice’s Court in the county of Monroe, by the plaintiff (the appellant), to recover a quantity of wheat straw, and the complaint set forth a cause of action for the recovery of the same and for damages for the detention thereof; the answer denied the plaintiff’s complaint, and alleged that on the 29th of November, 1893, one Howard Carmel being the owner of the growing crop of wheat, situate on the premises of the plaintiff, leased by Carmel, executed and delivered to the Milsom Rendering and Fertilizing Company a chattel mortgage on the growing crop of wheat to secure a debt due the company of fifty-five dollars and fifty cents; that Carmel had never paid the debt, and when the wheat became ripe and ready to harvest, Carmel refusing to harvest it, the defendant harvested the wheat and took possession thereof as the agent of the company, and was entitled to the possession thereof by virtue of such chattel mortgage, and demanded a judgment for a return of the property with damages for its detention. It appeared in evidence that the plaintiff had leased his farm by a written lease for a year from the 1st day of April, 1893, for a cash rental of $250 to said Howard Carmel. The lease provided that all the grain grown on said farm should be hauled to the barn and threshed there and the straw stacked in good order. In the summer of* 1894, when the wheat was ready to cut, the defendant, as the agent of the mortgagee, harvested the wheat, there being about eight acres of it, and drew it (including the straw), to a barn on another farm near by, claiming to own it under the chattel mortgage which had become due. The plaintiff demanded, of the defendant that he return the wheat to the barn on the premises, which the defendant refused to do, and while the straw, including the wheat unthreshed, was thus in the defendant’s possession, it was taken by the plaintiff by proceedings in replevin in Justice’s Court and delivered to the plaintiff. The justice rendered a judgment awarding the possession of the property to the plaintiff, with costs. The defendant appealed to the County Court of Monroe county, where a new trial was had before the court without a jury, and the County Court held that the defendant was entitled to the possession of the property until the wheat was threshed and gave judgment for the defendant. The County Court found as a fact that the plaintiff was the owner of the straw; that by the lease in •question the tenant from whom the mortgagee derived its title owned the wheat in the straw, with the right-to harvest it and thresh it on the plaintiff’s premises, and that there was sufficient room m the barn of the plaintiff on those premises to store and thresh the grain. These facts are supported by the evidence. It was uncontradicted in the case that the defendant persisted in taking the straw, including the wheat, off the premises of the plaintiff, notwithstanding that he was told by a member of the plaintiff’s family that under the lease he had no right to do so. The defendant in no manner stated or claimed that he was simply talcing the straw off to a neighboring barn to thresh the wheat and return the straw after such threshing, but insisted on a full ownership under the mortgage, which covered the straw as well as the wheat. The plaintiff had the right under these circumstances to treat the defendant as a wrongdoer, who claimed the straw and had converted it to his own use and to replevy the straw, and if as an incident to the straw or as contained in it, the wheat, not having been separated by the defendant from the straw, when and where the defendant had the right to separate it, the defendant could not complain. The plaintiff had the right to have the straw threshed upon his own land, where he could have the benefit of the whole of it and the chaff that came therefrom for the uses of his farm. This could not be fully secured if tlie wheat was threshed elsewhere. The fact that the defendant removed this straw from the plaintiff’s premises when it was not necessary, for the purpose of threshing or storing the wheat, claiming title under the mortgage, indicated the defendant’s intention to convert to his own use the property in controversy, and the plaintiff was not bound to wait until the straw was beyond his reach or bring his action for damages. He could seize the property itself, as he did, to await the determination of the action. The learned county judge favored us with an opinion in which he ably presents the view taken by the County Court in the matter, and cites Colville v. Miles (127 N. Y. 159, and Hawkins v. Giles (45 Hun, 318). These were cases where the tenant had agreed to feed out certain farm produce to the stock upon the farm, creditors of the tenant levied upon this produce, and it was held that notwithstanding the contract between the tenant and his landlord that the produce was to be fed out on the farm, still such products being the property of the execution debtor could be taken by the creditor on execution. The difference between those cases and the one before us is manifest, inasmuch as here the straw was the property of the landlord and not of the tenant. We have reached the conclusion that the judgment should be reversed and a new trial granted, with costs to abide the event.


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    In the Matter of the Estates of Lucinda Rogers and William Rogers, Deceased; Pliny T. Sexton, as Executor, etc., of Lucinda Rogers, Deceased, Appellant; Ruth E. Moore, as Administratrix de bonis non of William Rogers, Deceased, Respondent.
   Decree affirmed, and. groceedings remitted to the Surrogate’s ourt of Wayne county, with costs payable outof the estate of Lucinda Rogers, deceased.


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    Nellie E. Sauer, Respondent, v. Samuel G. De Coursey, as Receiver of the Western New York and Pennsylvania Railroad Company, Appellant.
   Judgment and order affirmed.

Adams, J., not voting.


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    Joseph A. Barr, Respondent, v. Henry L. Fish and Another, Appellants.
    Motions.
   Motion to reconsider the order previously made and for leave to appeal to the Court of Appeals granted.


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    Edward H. Throne and Another v. Lehigh Valley Railroad Company.
   Order of Monroe Special Term reversed.


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    Manderville J. Barker and Another, as Executors, etc., v. Mary K. Laney.
   Motion for re-argument denied.