author: Hardin, P. J.: KENNEDY, J.:

text:
    J. Emmett Wells, as Executor of Samuel H. Hinsdell, Deceased, Respondent, v. The Town of Salina and Others, Appellants.

      Municipal corporations —capacity of a town to borrow money — ultra vires obligations— reimbursement for moneys advanced to it — subrogation to, and equitable assignment of the claim paid therewith — equitable relief in lieu of mandamus — action at law ■upon the securities, not a. bar to an action in equity.

    It is only upon contracts which are ultra viresiw tlie true sense of that expression, that is, upon contracts relating to matters wholly outside of the chartered powers of the corporation, that no liability, legal or equitable, exists against a municipal corporation.
    When a stranger has advanced money in good faith, at the request of a town, to pay an indebtedness incurred by the town within its charter powers, and which the town ivas legally bound to pay, although it could not in its corporate capacity borrow money and contract any obligation in relation thereto, and hence was not liable in an action at law brought upon notes issued for the money so advanced, still the party so advancing the money (applied for a proper town purpose in paying a legal .liability existing against the town), becomes the equitable assignee of the claim against the town on which the money advanced by him was applied, and becomes subrogated to the rights of the original creditor on account thereof, and can enforce the same in equity against the town to the extent of the money so advanced and applied.
    A resolution was passed by the town of Salina, to assume the prosecution of an action which had been brought to test the validity of certain bonds issued by it, and for the employment of an attorney, Stephens, to conduct the same; one Hinsdell in good faith advanced money to the town, upon notes issued by its supervisor, which was used to pay Stephens for his services and disbursements; the notes not having been paid, Iiinsdell’s executor brought an action at law thereon against the town, in which the Court of Appeals decided that the notes were not obligations of the town and that the town was not bound thereby. (119 N. Y. 280.) Thereupon, Stephens assigned to Hinsdell’s executor all his demands against the town for liis services and disbursements, and the executor presented the claim to the board of town audit, at its next annual meeting, for audit and allowance, but the board refused to audit and allow the same, and adjourned line die. Thereupon, the executor, as the equitable assignee of Stephens, brought an action in equity against the town and its board of town auditors, to charge the town with the claim, to the amount advanced by the plaintiffs testator.

      Held, that by reason of the fact that the moneys, advanced by the plaintiffs testator to the supervisor of the defendant town and upon its credit, were used by the supervisor to satisfy a valid liability, of the town to one of its creditors, for legal services and disbursements, the plaintiff became in equity subrogated to the rights and demands of such creditor against the town, to the extent of his advances, and an equitable assignee thereof to that amount; and that a judgment directing the town to pay the plaintiff the amount of his advances, with interest, and directing the town board of audit to allow such judgment as a demand against the town, was correct.
    The annual meeting of the board of town audit at which the plaintiff presented the claim and at which his request for its audit and allowance was refused, was held in November, 1890/ it appeared that if the plaintiff had waited until a proceeding by mandamus could be taken at the next annual meeting, to be held in November, 1891, the'Statute of Limitations of six years would have run, as the claim of the attorney, Stephens, for payment for his services and disbursements accrued on the determination of the litigation conducted by him. for the town on April 24, 1885; the plaintiff commenced this action March 10, 1891, while there was no town board in session, ana when, under the statutes, none would be in session until the following November. The answer contained no allegation that the plaintiff had a remedy by mandamus, or an adequate remedy at law.

      Held, that the action, having been commenced within six years after the claim accrued by the determination of the action in -which the services were rendered, was not barred by the six years’ Statute of Limitations ;
    That inasmuch as the town board of audit did not act upon the claim, it could not be said that what took place before the board was an adjudication which was conclusive and formed a bar to any further proceedings on the part of the plaintiff to have his claim established ;

      That the defendants could avail themselves of all defenses to the present action, which would have been open to them in a proceeding by mandamus to compel the board of town audit to consider and allow the plaintiff’s claim. And hence, that under these circumstances, the equitable question of subrogation being involved, a court of equity had jurisdiction to ascertain the essential facts relating to the claim, and to make an adjudication thereon, and to direct, the town board to audit the claim.
    It appeared from the opinion of the Court of Appeals in the action brought by the present plaintiff against the defendant town to recover upon the notes which had been issued for the money advanced, that that was an action at law and tried as such; that the essential point discussed and decided was that the town was not liable upon the notes as it had no express authority to borrow money, and that the present equitable aspects of the transaction were not considered or the present issue iitigated under the pleadings in that action.

      Held, that the former action at law was not a bar to the present equitable action.
    Appeal by tbe defendants, the town of Salina and the members of the board of town auditors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of Onondaga county on the 10th day of November, 1892, upon a decision of the court rendered after a trial by the court at the Onondaga Special Term.
    This was an action in equity brought by the plaintiff as an equitable assignee of one Stephens, to charge the defendant, the town of Salina, for services rendered by said Stephens, and money expended by him in and about the prosecution of an action wherein one Francis Alvord and Leman B. Pitcher were plaintiffs, and the Syracuse Savings Bank and others were defendants, which latter action was prosecuted to compel the holders of bonds issued by said town in aid of the Syracuse Northern railroad to surrender them up, and for the cancellation of the same, upon the ground that the same were illegally issued and not valid obligations against said town. The services so' rendered by said Stephens were rendered by him as attorney for the plaintiff in said action, and the money was expended by him in and about the prosecution of the case.
    The contention on the part of the plaintiff was that said action, brought and prosecuted in the name of Alvord and Pitcher, was in fact so brought and prosecuted by said town, under its direction and for its benefit. The evidence justified this contention, and that the said town was, therefore, liable to pay for the services so rendered and money expended.

      The further claim of the plaintiff was that his testator, having advanced the money to pay Stephens for his said services and the money expended by him in the prosecution of said action, and the same having been appropriated at the request of the town for that purpose- — while said town could not in its corporate capacity borrow money, although used for a proper town purpose, and contract any valid obligation in relation thereto, such engagements if entered into being ultra vires ■ — yet, nevertheless, the money having been ‘used to pay Stephens for a legal liability existing against said town in his favor, that the party advancing such money, in this case the plaintiff’s testator, became the equitable assignee of the obligation against the town, in Stephens’ favor, and could enforce the same in equity to the extent of the money so advanced and applied. The plaintiff had also a formal assignment by Stephens of his demand against the town for the demand referred to.
    Additional facts in the case are stated in the case of Wells v. The Town of Salma (reported in 119 N. Y. 280).
    In the complaint it is alleged that plaintiff’s testator, in good faith, had advanced moneys upon certain notes which the Court of Appeals had decided “were not obligations of said town, and that said town was not bound thereby.” It was further alleged in the complaint that the plaintiff’s testator, “upon the advancing of said moneys as aforesaid, and the expenditure of the same in the prosecution of said action, became the equitable .assignee of said Stephens’ claims against the town for services performed and moneys disbursed in said action to the amount of said moneys so advanced by him.” It was also alleged that on the 13th of June, 1890, “ Said Stephens duly assigned to this plaintiff, as such executor, all his demands against said town for services performed and moneys disbursed as aforesaid, except,” etc. It was alleged that the town auditors “ refused to receive or consider said claim or place the same on hie, and the said claim was not received or considered by them; and that they afterwards, and after considering and passing upon other claims against said town, presented for the first time at the same adjourned meeting of said auditors, adjourned 1 sine die ’ without so doing.” It was further alleged that the plaintiff had been unable to procure the audit of the same in the manner provided by statute, and “ that he has no remedy at law in the premises.” It was alleged that the town profited by the services rendered to it, which were paid with the moneys mentioned, “ and saved many thousands of dollars ” by a compromise, using the litigation had for that purpose.
    The answer contained numerous denials and set up the action upon the notes as a bar, and also set up that the plaintiff’s supposed causes of action “ did not accrue at any time within six years next before the commencement of this action.” It did not set up as a defense that the plaintiff had a probable remedy at law; nor did it set up the ten years’ statute; nor that the plaintiff had a remedy by mandamus.
    The judgment appealed from was to the effect “ that the defendant, the town of Salina, pay to said plaintiff * * * the sum of $6,665.96 with interest,” besides the costs, and “ And that the Board of Town Audit of said town audit and allow said judgment, as a demand against said town.” It was found as a conclusion of law: “ That by reason- of the fact that the moneys advanced by plaintiff’s testator to the supervisor of said town and upon its credit, were used by him to satisfy a valid liability of said town to one of its creditors, for legal, services and disbursements, the plaintiff became in equity subrogated to the rights and demands of such creditor against the town, to the extent of his advances, and an equitable assignee thereof to that amount.” It was also found, “ That the said demands of said plaintiff, sued for herein, were duly presented to the Board of Town Audit of said town at its annual meeting in November, 1890, and audit and allowance of the same duly demanded, in compliance with the statute; that said board refused to proceed and audit the same.” It was also found that a resolution was passed by the town whereby the town assumed the prosecution of an action brought by Alvord and Pitcher “ to test the validity of said bonds issued by said town, and employed said Stephens to prosecute the same, and thereupon became liable to pay said Stephens whatever his services were reasonably worth in the prosecution of said action, and his disbursements made therein, whenever said action should be finally determined, and said services and disbursements became and were a legal obligation against said town.” It was also found as a conclusion of law, “ That said town by the passage of said resolutions hereinbefore set out, and the acts of its supervisor, became liable to said attorney, Stephens, for the value of his services and disbursements in prosecuting said action in the name of Alvord and Pitcher, and the amount and value of the same became and was a valid obligation against it.”
    Exceptions were filed to the decision of the trial court, and to refusals of certain requests as to findings of fact and refusals to find certain propositions of law.

      Hcmcoch, Beach dc Devine, for the appellants.

      Kemiedy, Tracy, Mills éc Ayling, for the respondent.
   Hardin, P. J.:

On the 13th day of November, 1890, the plaintiff presented a detailed statement of his claim to the Board of Town Audit, and requested them to audit and allow his claim; they refused to do so and adjourned sine die. In People ex rel. Wells v. Board of Audit (4 Hun, 94), it was suggested that town auditors could not hold special meetings, and that a mandamus requiring them to reconvene and audit a claim was improper, and that it should have required them to audit the claim at the next annual meeting. If plaintiff had waited the assembling of the next annual meeting of the board in November, 1891, he would have been met with the defense of the Statute of Limitations; instead thereof, he commenced this action on the 10th of March, 1891, while there was no town board in session, and when, under the statutes, none would be in session until the following November. The answer of the defendants contains no allegations that the plaintiff had a remedy by mandamus, nor does the answer contain a defense that the plaintiff has an adequate remedy at law. (Town of Mentz v. Cook, 108 N. Y. 504 ; Ostrander v. Weber, 114 id. 95.) Inasmuch as the claim for services of the attorney accrued in April, 1885, and the same would have been barred by the six years’ statute if plaintiff had delayed until November, 1891, for the assembling of the town board, it is difficult to see why the defendants could not avail themselves of all defenses to this action which would have been open for them to present against the proceeding by way of mandamus to compel the board of town audit to consider and allow the claim of the plaintiff. Whether the plaintiff is entitled to an equitable subrogation or not is a legitimate question for the determination of a court of equity. Plaintiff has alleged that he was entitled to such subrogation, and the defendants have taken issue thereon, and it has been determined in the trial of the action adverse to the defendants. Under such circumstances, inasmuch as the town board had refused to audit the claim, it is difficult to see why a corn't of equity has not jurisdiction to ascertain the essential facts relating to the claim, and make an adjudication thereon, and to direct that the town board proceed to audit the claim. Inasmuch as the town board did not act upon the claim, it may not be said that what took place before the board was an adjudication which was conclusive, and formed a bar to any further proceedings on the part of the plaintiff to have his claim established. (The People ex rel. Myers v. Barnes, 114 N. Y. 317.) If it be assumed that the plaintiff is entitled to recover in either aspect of the case, the six years’ Statute of Limitations does not stand in his way, as this action was commenced within six years from the 24th of April, 1885, when the services of Mr. Stephens were completed. In Adams v. The Fort Plain Bank (36 N. Y. 255), it was held that until the determination of an action in which the services of an attorney have been had the Statute of Limitations does not begin to run. It is insisted that the former action, based upon the notes held by the plaintiff, is a bar to this action. By the opinion delivered in that case ( Wells v. Town of Salina, 119 N. Y. 280), it appears that that was an action at law, and was tried as such, and it was intimated that under the pleadings in that case the equitable aspect could not be considered, and the essential point discussed in the opinion was, that the town was not liable upon the notes, as it had no express authority to borrow money. It was observed incidentally in the opinion that “the bills for services and expenses have never been audited or allowed in the mode prescribed by the statutes; ” and in that opinion it was said as follows: “ But even if we should assume that it had been sufficiently established that the town had the full benefit of the money thus borrowed, that would not authorize the maintenance of this action. * * * Even if the plaintiff’s testator, by the payment of the expenses of that litigation, became the equitable assignee of the bills representing such expenses, and might have taken and presented those bills for audit to the board of town auditors, yet he never did so. He did not bring his action upon the theory that he was an equitable assignee of those bills, and be gave no proof which entitled him to recover as an equitable assignee, and the case was not tried upon that theory.” The language just quoted seems to justify an inference that that action was disposed of solely as an action at law, and that the theory upon which the present action is founded was not considered, as it was not supposed to be within the issues then before the court, and thus it is apparent that the present issues were not litigated under the pleadings in that case; therefore, that action is not a bar to the one now presented. (Embury v. Connor, 3 Comst. 511 ; Palmer v. Hussey, 87 N. Y. 303 ; Belden v. State, 103 id. 1.) The language already quoted from the opinion delivered in the Court of Appeals also seems to furnish a warrant to this court to leave the question as to the plaintiff’s light to the relief awarded to rest upon the principles and authority as presented in the opinion delivered by Kennedy, J., at Special Term. We, therefore, forbear any further discussion of the questions presented to us by this appeal. The views already expressed, as well as those contained in the opinion at Special Term, lead to an affirmance.

Merwin and Parker, JJ., concurred.

Judgment affirmed, with costs.

The opinion delivered at Special Term was as follows:

KENNEDY, J.:

It is held in Wells v. The Town of Salina (119 N. Y. 280), that the defendant in that case "was not liable to the plaintiff’s testator upon the notes mentioned, nor was it liable in an action at law for money lent and advanced by him and used to pay the costs and expenses of the action brought by Francis Alvord, at the time supervisor of said town, and Leman B. Pitcher, against the Syracuse Savings Bank and others, holders of the bonds referred to, for their surrender and cancellation, upon the ground that the special contract sued on the part of the town in relation thereto, was illegal.

One of the questions to be determined is, conceding as was held by the Court of Appeals, that the prosecution of the action of Alvord and Pitcher against the holders of the bonds issued by the town of Salina, to compel their surrender and cancellation, was assumed by said town, and that the same was prosecuted by it and for its benefit, and to relieve itself from its apparent liability on said bonds, and that such action was so prosecuted for a town purpose within the powers conferred upon town municipalities by the Revised Statutes. Is said town, although not liable in an action at law for money advanced to it at its request, because of a want of power in it to enter into said contract, still liable in equity to be charged with the money so advanced by a stranger in the proceedings, in good faith and actually expended by it in and for a town purpose ? It would seem eminently just that a town which has received the money of a party, advanced to it at its request, in good faith and relying upon its undertaking to repay the same to the party advancing it, and which money has been applied by the town to discharge its liability incurred in the prosecution of an action for a town purpose, should refund the same to the party advancing it, and the court should be vigilant in its efforts to discover a way to compel the repayment, if one in fact exists, and the town should not be able to effectually shield itself from its moral liability to pay, by invoking the principle of “ ultra 'owes? The plea of “ ultra vires ” should not as a rule prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong. (Rider Life Raft Co. v. Roach, 97 N. Y. 378.)

All corporations, whether municipal or business, are the creatures of the statute ; every powei which they possess and which' they can legally exercise is derived from the statute; and while purely artificial in this regard, the same moral obligation to faithfully discharge their undertaking honestly entered into, and being within the purpose for which they were created, exists, binds and controls them the same as natural persons. And while the same rule exists in regard to legal obligations, when applied to contracts made beyond the power and authority conferred on municipal as in business corporations, the rule “ ultra viresf it seems, is more strictly applied to the former than to the latter. (Dillon on Mun. Corp. §§ 457, 936.)

In section 936 it is said: “ When an act in its external aspect, is within the general powers of the corporation, and is only unauthorized because it is done with a.secret, unauthorized intent, the defense of ult/ra vires will not prevail against a stranger, who in good faith dealt with it, without notice of such intent. A municipal corporation, as against persons who have' acted in good faith, and parted with value for its benefit, cannot, unless by virtue of some statutory provision, set up mere irregularities in tlie exercise of power conferred.”

In the ease of Hitchcock v. Galveston (96 U. S. 341), the question of tlie liability of a municipal corporation upon contracts entered into by it, not within the provisions of the city charter, was considered. In that case the city entered into a contract with the plaintiff to pave certain streets. It had the power to make a valid contract for this purpose, but the city in the contract agreed to make payment for the work in negotiable city bonds payable at a future day, and it was objected by the city that since no express power was given to issue bonds for the purpose, the whole contract was inoperative and void. In his opinion, Justice StboNG, speaking for the court, among other things, says: If it were conceded that the city had no lawful authority to issue the bonds described in the ordinance and mentioned in the contract, it does not follow that the contract was wholly illegal and void, or that the plaintiffs have no rights under it. * * It is enough for them that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city has promised to pay; and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds because their issue is ‘ ultra v ires,'1 it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law.”

In The State Board of Agriculture v. The Citizens' Street Railway Company (47 Ind. 407), it is said that, although there may be a defect of power in a corporation to make the contract, yet, if a contract made is not in violation of its chartei’, or of any statute prohibiting it, and the corporation has by promise induced a party, relying on the promise and in execution of the contract, to expend money and perform his part thereof, the corporation is liable on the contract. To the same effect, Oneida Bank v. Ontario Bank (21 N. Y. 490). Many other cases might be cited holding the same doctrine.

It is only upon contracts which are “ ultra vires ” in the true sense of that expression, that is, upon contracts relating to matters wholly outside of the chartered powers of the corporation, that no liability, legal or equitable, exists against the municipality.

The contract in question does not relate to matters wholly outside of the chartered powers of the corporation. On the contrary, it relates to a matter within them, and is only rendered invalid in the manner adopted for procuring the money.

The town had the charter power to bring and prosecute an action to rid itself of the alleged liability it had incurred in issuing the bonds, and it had the power, in the way provided by the statute, to raise the money necessary to defray the expenses of such prosecution, viz., by tax levied and collected; but it had not the power to borrow money for that purpose, and it was not, therefore, liable in an action at law for money so borrowed.

The money advanced by the plaintiff’s testator was obtained from him for the use of the town of Salina, pursuant to a resolution passed by the inhabitants of said town, at a regular annual town meeting, held therein in the years 1881 and 1882. These seem to have been regularly and legally adopted in pursuance of a power granted the corporation by statute.

In supposed execution of the directions contained therein, notes were made, signed by the supervisor in his official capacity. These notes were discounted by the plaintiff’s testator in good faith, and in reliance upon such resolution incorporated in and forming a part of the notes, and in the belief' that the action of the electors of the town was legal and binding upon it, and that it would discharge the obligation incurred. The money was paid over to the supervisor, or to the attorney, Stephens, and was by him expended for and on behalf of the town, to defray the cost and expenses of prosecuting the action brought to annul its bonds, and for a town purpose, and it received the benefit resulting from said prosecution in the refunding of $120,000 of its bonds drawing seven per cent annual interest, and the exchange of other bonds of the town for them, drawing but four per cent interest.

Under these circumstances should the town be permitted to repudiate the moral obligation, at least, to pay the money so advanced for its use and benefit, upon the gi'ound that its contract to borrow the money was “ uli/ra, vires ? ” Or will this court, in the exercise of its equitable power, charge the town with an equitable obligation to discharge said liability, and to pay the money so advanced ? It will be borne in mind that the money in question could have been raised by the town by tax levied upon the taxpayers therein; they by their resolutions adopted expressed their willingness to be taxed for that purpose; the burden is not one, therefore, forced upon them against their will or wishes, but is one willingly assumed. The case is, therefore, one, as before stated, where the equity power of the court should be exercised to prevent injustice, if such power exists.

The broad proposition is asserted by text writers upon the subject : “ Persons who have in any way advanced money to a corporation, which money has been devoted to the necessaries of the corporation, are considered in Chancery as creditors of the corporation, to the extent to which the loan has been so expended.” (Green’s Brice’s Ultra Vires, 623 ; Talmage v. Pell, 7 N. Y. 328; Sacketts Harbor Bank v. Codd, 18 id. 242.)

The question whether a particular contract is binding on a municipal or public corporation or not, is to be tested by determining whether, in the true construction of the charter and the legislation applicable thereto, it relates to matters within the corporate powers and duties. (Dillon on Mun. Corp. [4th ed.] § 936.)

The following proposition is advanced relating, it is true, to dealings with individuals, but in principie it is suggested to be equally applicable to corporations, municipal or otherwise: “ Whenever money is loaned or advanced to a person under disabilities and incapacitated from making a binding contract, as to an infant, a lunatic and the like, and the money is thus loaned or advanced and actually used for the purpose of paying for necessaries, or necessary expenses of the party borrowing, although no legal debt arises and the lender can maintain no action at law to recover back the amount, yet, since his money was advanced and used for the purpose of paying debts which would be recoverable at law, he can sue in a court of equity and stand in the place of those creditors whose debts have been so paid, and recover back the amount of his advance. An equitable debt thus arises under the principle of subrogation.” (3 Pom. Eq. J uris. § 1300. See cases cited in note to section.)

The doctrine of subrogation being a creature of the courts of equity, is to be so administered as to secure essential justice without regard to form, and is independent of any contractual relations between the parties to be affected by it. (McNiel v. Miller, 29 W. Va. 480 ; Mathews v. Aikin, 1 Comst. 595.)

I am, therefore, of the opinion that the plaintiff in this case, as the executor of Ilinsdell, who in good faith,, and in reliance upon the action of the inhabitants of the'town legally assembled in town meeting, advanced the money for the town, and the same having been used and appropriated for the benefit of the corporation and for town purposes, is entitled to be subrogated to all the rights the creditors who received the money had against it for obligations illegally contracted by it for town purposes.

The fact that the money advanced by the plaintiff’s testator was used to pay its obligations legally incurred, did not operate to cancel such obligations so as to prevent such right of subrogation. The plaintiff’s intestate stands in as favorable position to enforce his equitable rights against the town as though he had actually paid its obligations legally incurred to the creditor and taken an assignment of the demand. The fact that instead of going to the creditor and paying him, Hinsdell furnished the money to the town or its attorney in the action, to make such payment, as it seems, to me, does not in any maimer change the right of the parties.

The plaintiff is the actual assignee of the debt owing to Stephens, its attorney in the litigation, for services rendered by him and disbursements made in and about the same, and stands in a position wdiere he can in equity enforce the obligation. In my judgment it would be the extreme of injustice, in the light of the fact that the town has received the money in question, and it is, as far as, under the circumstances it might, to discharge a legal obligation against it, to allow it to say, it is true the town was liable for the debt, it is true you, the plaintiff, advanced the money in good faith and upon our request, with which we discharged the obligations against it, but because we in fact' had no legal right to borrow your money for that purpose, we will not repay you for your advances so made. I should feel compelled to struggle long and hard to find some way under the circumstances to compel the town to do justice, and I cannot but think a court of equity has jurisdiction of the question and the power to compel justice to be done.

The more embarrassing question is whether the■ action brought by the plaintiff against the town to recover of it for money lent, advanced to it and at its request, and prosecuted to a final judgment against the plaintiff therein, is a bar to this action ? I am disposed under the circumstances of this case to hold that it is not. This action differs from the former action in that it is for a different cause of action, this being to force the demands Stephens, as attorney, had against the town for services rendered by him, and for money advanced in the prosecution of an action which the town could legally prosecute, and in which it could incur valid obligations in and about doing so, and to enforce these obligations which the holder could enforce against it, and of which the jfiaintiff has become. the owner, as the equitable as well as legal assignee of the same. (Zoeller v. Riley, 100 N. Y. 102 ; Calhoun v. Millard, 121 id. 69.)

As against the claim of Stephens, the attorney for the town, the Statute of Limitations did not begin to run until the final determination of the action in which the services were rendered and dislrarsements made.

The case of Alvord & Pitcher v. The Syracuse Savings Bank et al. was argued in the Court of Appeals on the 11th day of March, 1885, and was decided on the 14th day of April, 1885. This action was commenced on the 10th day of March, 1891. The six years’ Statute of Limitations is, therefore, not available to the defendant.

It appears that at a regular meeting of the town board of the town of Salina, held on the 13th day of November, 1890, all the members being present, a detailed statement of the demand was presented to it, with the request that said board would proceed and audit the same. This the board refused to do, upon the ground that the town was not indebted thereon or liable to pay the same or any part thereof. This seems to have been a compliance with requirements of the statute in that regard.

If right in the above conclusions, it follows that the plaintiff is entitled to judgment.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Thomas D. Penfield, Appellant, v. John L. Sage, as Surviving Partner of Chauncey S. Sage, Deceased, Respondent.

      Personal property purchased by a judgment creditor’ at an execution sale — conversion thereof by a third party — change in property by manufacture — measure of damages — referee’s conclusions upon conflicting evidence.

    A judgment creditor cannot sustain an action against a wrongdoer for taking out of tlie possession of the officer property which, has been levied upon under an execution upon his judgment, but when the judgment creditor has acquired title to personal property, by purchasing it at the execution sale, he may recover it or its value from a third party to whom it had been contracted to be sold by the judgment debtor intermediate the levy and the execution sale, and who has wrongfully taken possession of it after the execution sale.
    The General Term will not, in a doubtful case, tried by a referee, and decided upon conflicting evidence, assume the place of the referee, and determine from the mere reading of the evidence who has told the truth, or is best entitled to credit; but where there is evidence in the case tending to support the conclusion reached by the referee, his conclusion upon the facts produced before him will be accepted.
    Where, in an action for conversion, it appears that the property was taken by the defendant in the shape of raw material, and changed by him into a new form, as logs into lumber, but it is not found that the conversion was willful or an intended defiance of the plaintiff’s known title to the property, the measure of damages should be limited to the value of the original article in its original location.
    Appeal by tlie plaintiff, Tilomas D. Penfield, from a judgment of tbe Supreme Court, entered in the office of the clerk of Oneida county on the 2d day of April, 1892, upon the report of a referee in favor of the plaintiff awarding the plaintiff thirty-six dollars and eighty-five cents damages, and allowing the defendant the sum of §158.01 costs, and offsetting the damages against the costs, and leaving a judgment in favor of the defendant for $121.19.
    Plaintiff’s complaint averred that the defendant’s firm “ took and carried away birch and maple lumber, and converted the same to their own use; ” and that the plaintiff “ waives the tort growing out of the transaction aforesaid.” The answer contained denials of the allegations of the complaint. The report of the referee awarded damages in the sum of thirty-six dollars and eighty-five cents.

      A. C. & E. C. Woodruff and William Kernan, for the appellant.

      8. O. JSuntmgton dc Son, for the respondent.
   Hardin, P. J.:

Barker v. Mathews (1 Den. 335) is an authority to the effect that the plaintiff, a judgment creditor, “ cannot sustain an action against a wrongdoer (the defendant here) for talcing property out of the possession of the officer.” That case was adverted to by Gridley, J., in Marsh v. White (3 Barb. 523), but the doctrine was not disturbed. Plaintiff’s execution upon a judgment against Burritt, having been issued to the sheriff of Oswego county, was levied on the property of and in the possession of Burritt on the 19th of March, 1888, and full notice thereof was given to Burritt, the judgment debtor. The sheriff posted his notices of sale, and in pursuance thereof sold the logs lying in the yard at Burritt’s mill on the 22d of May, 1888, to the highest bidder, being the plaintiff; and whatever title the plaintiff acquired was derived under such sale and the purchase by him under the execution. Although the logs, after the purchase thereof by the plaintiff, were cut into lumber and hauled to Williamstown, some nine miles distant from the mill, which was at Redfield, the -plaintiff, in virtue of the title acquired by him, was authorized to pursue the lumber and take possession thereof, he not having given Burritt or anyone else any authority to convert the logs into lumber, pr to make sale of the lumber. (Silsbury et al. v. McCoon et al., 3 Comst. 379 ; Dudley v. Hawley, 40 Barb. 397; Hughes v. U. P. Lines, 119 N. Y. 426.) In March, 1888 (intermediate the levy and the sale), Burritt entered into a contract with the defendant’s firm whereby he agreed to sell and deliver a quantity of lumber to the firm, and in pursuance thereof he delivered a quantity to the defendant’s firm, and at the trial a question arose as to how much of the lumber arising from the logs bid off by the plaintiff was delivered to the defendant’s firm subsequent to the 22d day of May, 1888, the day of the plaintiff’s purchase. That question seems to have been sharply and resolutely litigated at the trial before the referee. There was a conflict in the evidence which called upon the referee to exercise his judgment as to where the truth was to be found after considex-ing all the evidence before him on the question. He reached the conclusion that the defendant’s firm only received 5,000 feet derived from the logs purchased by the plaintiff at the sale after the plaintiff acquired title under the execution sale. We are asked to overturn his finding, and reference is made to quite a volume of evidence given by the plaintiff warranting a conclusion contrary to the finding of the referee; but as there was evidence given in behalf of the defendant which tends to support the conclusion reached by the referee, we are constrained, upon giving such influence to the findings of the referee as we think they are entitled, to accept his conclusion upon the facts produced before him. (Roosa v. Smith, 17 Hun, 138.) In the course of the opinion delivered in that case Boardman, J., said: “ But we think it very clear that a General Term cannot in a doubtful case upon conflicting, evidence, like the one under review, assume the place of the referee and determine from the mere reading of the evidence who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which in such cases would review nothing but the evidence, giving such a decision as in its judgment upon the evidence is just.” The rule as thus stated has been adopted, approved and applied in numerous cases by this court. (Teeter v. Teeter, 47 N. Y. St. Repr. 579, and cases cited in the opinion.)

(2) The referee in awarding damages to the plaintiff allowed the value of the lumber which he finds was converted by the defendant’s firm according to the value of the plaintiff’s interest therein at the mill in Bedfleld, where the same was sawed, instead of at the value thereof enhanced by the expense of drawing to "Williamstown, nine miles distance from the mill; thus awarding to the plaintiff the value of the thirty-five birch and maple logs containing the 5,000 feet, and the referee states the value thereof to be thirty dollars, and for that sum, with the interest thereon, he awards the plaintiff damages and a judgment therefor, and he finds that the defendant’s firm “ converted the same to their own use; ” and he also finds that, “ on May 22d, 1888, said firm of S. Sage & Son had knowledge and notice of said levy and sale, and Chauncey S. Sago, one of the members thereof, forbid the sale on that day.” The referee did not find that the conversion by the defendant’s firm was willful and an intended defiance of plaintiff’s known title to the property.

In section 503 of Sedgwick on Damages (8th ed. vol. 2, p. 88), in speaking of the rule of damages, he states that the prevailing view is tbat if the defendant acted in good faitli the measure of damages is the value of the property as it was just before the defendant’s wrongdoing began.” Tire author then proceeds to refer to Forsyth v. Wells (41 Penn. St. 291, 294), and in the course of the opinion in that case it is said : “ Where the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence or willful negligence or wrong, the value of the property taken and converted is the measure of just compensation. If raw material has, after appropriation and without such wrong, been changed by manufacture into a new species of property, as grain into whiskey, grapes into wine, furs into hats, hides into leather, or trees into lumber, the law either refuses the action of trover for the new article or limits the recovery to the value of the original article. Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies; ” after the quotation which we have given, the author adds, This case is generally followed.”

A discussion of the rule is found in Hyde v. Cookson (21 Barb. 92). In that case it was held : Where a manufacturer has expended his money and labor, in good faith, upon property, in pursuance of a contract with the owner, he cannot be regarded as a wrongdoer or deprived of the enhanced value which he has given to the property, in an action by the owner, sounding in damages.”

We think the plaintiff was not prejudiced by allowing a witness to testify that it was worth four dollars per thousand to draw the lumber from Redfield to Williamstown, nor by evidence that it was worth three dollars per thousand “ to saw such lumber in 1888.” The foregoing views lead us to an affirmance.

MeewiN and PARKER, JJ., concurred.

Judgment affirmed, with costs.


text:
    Frederick W. Puff, as Administrator of William H. Erway, Deceased, Respondent, v. The Lehigh Valley Railroad Company, Appellant.

      Negligence — personal injury — railroad, crossing — evidence as to lohether the locomotive hell was rung■— questions of contributory negligence.

    In an action brought against a railroad company to- recover the damages resulting from the death of the driver of a vehicle-at a highway crossing, caused . by a collision with a rapidly moving passenger train, several witnesses, on the part of the plaintiff, testified that they did not hear the locomotive bell ring when the train was approaching the crossing, and stated facts and circumstances explanatory of their opportunities for hearing it ring, and of determining whether it was rung, and one witness testified that the bell did not ring. Several witnesses, on behalf of the defendant, testified that the bell was rung.

      Held, that, under the evidence in the case, it was not error to submit to the jury the question whether the omission to ring the- bell, if it existed, constituted, under the circumstances, negligence on the part of the defendant.
    Where, from the nature of the circumstances, the demonstration cannot be made absolutely certain, contributory negligence on the>part of a person killed by a passing train, at a highway crossing, in not looking and seeing the approaching train at a point where he could have saved himself from the accident, is not to be deemed so established as to take the- consideration of the question from the jury, merely by calculations made at the trial, based upon the speed of the train and the estimated speed of the decedent’s team when approaching the point of collision, which it is claimed showed that by looking at a proper point the deceased could have avoided the accident.
    Contributory negligence is not imputable to the mere fact of attempting to cross a railroad soon after the passage of a train, which prevents an unlimited view of an approaching train, when the person waits until the first train has passed so far as to leave an unobstructed view of the tracks for a sufficient distance to authorize the jury to find that a person of reasonable caution might believe that the tracks were free, and that it was safe to attempt to cross them.
    Appeal by the defendant, the Lehigh Yalley Eailroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of Chemung county on the 18th day of January, 1893, upon a verdict in favor of the plaintiff, rendered at the Chemung Circuit.
    The action was brought to recover the damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence.

      JDiven <£ lieclfield, for the appellant.

      JBdboock, Baxter & Gibson, for the respondent.
   Hardin, P. J.:

"When the plaintiff rested the defendant moved for a nonsuit on the following grounds: (1) That the evidence does not clearly show negligence on the part of the defendant. (2) That the evidence does not affirmatively show freedom from negligence on the part of the deceased. (3) That the evidence does clearly show negligence on the part of the deceased.” The court remarked, viz;.: “ I think I will postpone the decision of the motion until after the evidence of the defendant is in.” At the close of the defendant’s evidence the counsel for the defendant renewed the motion on the same grounds, and it was denied, and the defendant took an exception. When the accident occurred defendant’s passenger train was moving south on the “ east-bound track ” at a speed of forty miles per hour, or fifty-eight and one-half feet per second, and when the locomotive of that train reached Oak Bidge crossing, it collided with the team and wagon being driven by the deceased in the highway which crossed the track. When the deceased had reached a point twenty-eight feet from the east rail of the west-bound track, he stopped his team and waited until a freight train, which was moving in the opposite direction, had crossed the highway; and when the rear of the freight train had passed 266 feet from the crossing, the deceased “ then raised up and looked both ways, up and down, east and west. He was standing up when looking up and down the track, six or seven car lengths, I should think, from the highway where he crossed. Then he started his team over the track, and just as his team was on the track he looked up, and saw this train coming so fast that he just raised up his hands and made a spring to escape with his life, and the train struck him just as he jumped. * -x- * The body of Erway lay between the two tracks, about ninety feet from the crossing where he was struck.” The witness from whose testimony the quotation has just been made, added: “ When this train was approaching this crossing I did not hear any whistle blown or bell rung by this passenger train going east. The train was a Lehigh Valley passenger train. It was running very fast.” The freight train was moving at about twelve miles per hour, and it is claimed that it was distant from the highway 518 feet when the collision occurred. In the course of the charge delivered to the jury, the trial judge instructed them that the question for them to consider was, whether the defendant had been, tinder the circumstances of the case, guilty of negligence, and did reasonable prudence require the ringing of the bell or the blowing of the whistle; ” he said: If it did, gentlemen of the jury, and this defendant has failed to do that which reasonable prudence would require under the circumstances surrounding this case, then the defendant has been guilty of negligence, but if they have done all that reasonable prudence required under the circumstances surrounding this case, then the defendant is not guilty of negligence, and this plaintiff cannot recover.” It is now insisted in behalf of the appellant, that the evidence did not warrant the jury in finding that the bell on the engine which caused the injury was not rung, and our attention is called to the rule as laid down in Culhane v. N. Y. C. & H. R. R. R. Co. (60 N. Y. 133) ; McKeever v. N. Y. C. & H. R. R. R. Co. (88 id. 667); Hoffman v. The Fitchburg Railroad Co. (51 N. Y. St. Repr. 245); and it is claimed that because several witnesses in behalf of the defendant testified that the bell was rung, that the evidence given on the part of the plaintiff was insufficient to carry the question to the jury. Several witnesses were called on the part of the plaintiff, who testified they did not hear the bell rung, and gave facts and circumstances explanatory of their positions and opportunities for hearing it rung, and to enable them to determine whether it was rang. Besides these witnesses, the plaintiff called the witness Zachariali Roy, who testified that he was on the wagon next to the deceased, and that he saw the freight train and that the deceased stood at the crossing at the time the freight train was passing, and that “ he was sitting down against the corn, and he sat there until the freight train had passed west and the caboose had gone by. Then he raised up and looked up and down the track, east and west; then he started his team.” After detailing the particulars of the collision, the -witness added: “ This passenger train was going very fast. When it was passing or approaching this crossing, that passenger engine did not ring the bell or blow the whistle.” With this testimony in the case, as well as the other evidence bearing upon the question, we think it was not error to submit to the jury the question as to whether the bell was rung or tlie wliistle sounded, and whether the omission thereof, under the circumstances, was negligence on the part of the defendant.

(2) The defendant insists that the plaintiff was guilty of contributory negligence, and that the facts and circumstances disclosed did not warrant the jury in finding the intestate free from contributory negligence. A careful statement has been made of the speed of the train and the estimated speed of the team when approaching the point of collision, and upon calculations based thereon it is insisted that the deceased was guilty of negligence either in not looking and seeing the approaching train, or in having looked at a point where he could have saved himself from accident, and that he, therefore, was guilty of contributory negligence. From the nature of the circumstances referred to, the demonstration cannot be made absolutely certain, and, therefore, the trial judge was warranted in refusing to take the question of contributory negligence from the jury.

In Massoth v. The D. & H. Canal Co. (64 N. Y. 524), Allen, J., said: “ It does not necessarily follow from the fact that a skilled engineer can demonstrate that from a given point in a highway the track of a railroad is visible for any distance, that an individual in charge of a team approaching the track is negligent because he does not from the same point see a train, approaching at great speed, in time to avoid a collision; and it is not enough to disturb a verdict of á jury in this court, in which legal errors only can be corrected, that the questions of fact are doubtful and that a different result might have been reached. There was no error in the refusal to nonsuit on account of the alleged contributory negligence of the deceased or Smith, his employer.”

(3) Appellant calls our attention to Heaney v. The Long Island Railroad Company (112 N. Y. 122); in that case, the deceased started to cross the defendant’s track just after a train had passed, and the smoke from its engine settled down behind it upon the road so as to temporarily obscure objects in the line of vision. The deceased, however, appears to have gone ahead, and while upon the north track was struck by a west-bound train and killed; ” and, under those circumstances, the court, in the course of its opinion, observed that it was his duty to await the disappearance of the smoke, and thus be reasonably sure that he had a clear crossing.” The features of that case are different from this one.

Our attention is also directed to Foran v. The N. Y. C. & H. R. R. Co. (64 Hun, 510); that ease also differs from tlie one before us, as it appeared in that case that “ except for the smoke the plaintiff, wlio went onto the track and was injured, could have seen the train,” and it was, therefore, held that it was his duty to wait until the smoke lifted. And it was held that his failure to do so amounted to contributory negligence. In the case in hand, the deceased waited until the train had passed, so as to leave an unobstructed view of the tracks .for a sufficient distance to authorize the jury to find that a person of reasonable caution might believe that the tracks were free, and that it was safe to attempt to cross them. If the defendant had sounded the whistle or rung the bell his attention might have been arrested at a point where he could have escaped the collision, and the jury may have found that the negligence of the defendant in the premises was the occasion of the collision. This case differs from Daniels v. S. I. R. T. Co. (125 N.Y. 407), as in that case it affirmatively appeared the deceased proceeded to cross the track immediately after the down train passed the crossing, without looking up the road.”

(4) After the delivery of the body of the charge to the jury the counsel for the defendant called attention to the expression in the charge as to the care of an ordinarily prudent man; ” and asked the court in connection therewith, to charge that he must take all precautions which the surrounding circumstances would permit, and that it is his duty to rise every precaution, and make use of his senses, both of sight and hearing, so far as he can ; ” and in response thereto the court observed, I will so charge; ” thereupon the defendant’s counsel requested the court “ to charge that if any obstruction to the view existed just as he approached the track it was his duty to look when those obstructions were' passed, and if they were of a temporary nature that it was his ditty, as matter of law, to wait until they ceased to obstruct his view before taking the observation required of him.” In response to that request the court said: “ I decline, except as already charged.” It is to be observed that the court had just instructed the jury “ that he must take all precautions which the surrounding circumstances would permit,” and that it is his duty to use every precaution.

We are of the opinion that the judge was not called upon to repeat the substance of bis charge, nor to use the exact words of the request, having already embodied in the instructions given to the jury the essential rules of law relating to the obligations of the defendant and of the deceased. We think the exception is unavailing, and that the verdict should remain.

Merwin and Parker, J J., concurred.

Judgment affirmed, with costs.


text:
    Ellen I. Ballard, as Executrix of William P. Ballard, Deceased, Respondent, v. The Hitchcock Manufacturing Company, Appellant.

      Master cmd servant — eo-sermnts — duty of the master to furnish a safe working place — defective stearn, boiler — injury to cm employee by the explosion of a boiler — liability of the master for negligent acts of the engineer in repairing the boiler — charge to disregard certain evidence.

    An employer owes to his employee tire duty of using reasonable care and diligence to keep the place where the employee is required to perform tlie services in which he is engaged reasonably safe.
    An employee of a manufaeturiD f corporation was fatally injured by the explosion of a steam boiler, used to operate the machinery in his employer’s factory, while engaged in tending a mason, who was laying up a brick partition wall between the boiler room and the adjoining building, at a point about twenty-five feet from the boiler. The executrix of the deceased employee brought an action against the employer, a corporation, to recover damages, on the ground that the employee’s death was caused by the.defendant’s negligence in maintaining a defective and unsafe boiler, and gave evidence tending to show that for several months before the accident, a seam of the boiler had leaked, and that it had been calked in an improper manner, which the plaintiff claimed tended to weaken it.

      Held, that it was the defendant’s duty to keep its boiler in suitable repair, and that in the discharge of that duty it became incumbent upon the defendant to make use of the proper instrumentalities in causing the repairs to be made.
    Evidence was given to the effect that after a leaky horizontal seam in the boiler had been calked by two men, employed for that purpose, and a director of the defendant corporation had been informed that the seam was defective and needed repair, the leak continued, and the calking was done thereafter down to the time of the explosion in question, a period of some four months, by the defendant’s engineer, who was engaged in operating the engine and boiler under a superintendent and assistant superintendent. The plaintiff claimed, and introduced evidence tending to show, that the calking was imperfectly done, and produced grooves in the boiler along the leaky seam, which weakened the boiler and led te the explosion.

      Reid, that, upon all the evidence, it was a question whether the corporation defendant, by any of its agents, failed to exercise due care to prevent injury to the plaintiff’s testator, from defects in or improper repairs to the boiler, near which he was required to discharge his duties;
    That the evidence warranted the submission to the jury of the questions whether the boiler exploded at the horizontal seam through the grooves, caused by the improper calking, and in consequence of the improper calking ; by whom this . negligent calking was done; and if done by the engineer, whether he was authorized by the defendant to do the calking ; and whether the engineer represented the defendant in respect to the matter complained of, or occupied the position merely of co-servant with the deceased ;
    That the jury having found that the engineer, as well as the two persons who first calked the boiler, were discharging the duties of the master in calking the boiler, and that a failure to perform that duty was the failure of the master rather than the failure of a co-servant, the defendant was chargeable with the engineer’s negligence.
    Where the court instructs the jury to disregard testimony improperly received, and there is other evidence to support the verdict, it will be assumed that the instructions were obeyed and the error in the admission of the evidence will be cured.
    . Appeal by the defendant, the Hitchcock Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Cortland county on the 14th day of January, 1892, upon a verdict rendered at the Cortland Circuit, and from an order of Special Term denying the defendant’s motion for a new trial made oil a case and exceptions.
    The defendant is a domestic corporation carrying on business in the village of Cortand, owing two large buildings “ full of machinery, viz., punches, shears, trip hammers, saws, planers, shapers, sanders and mortise machines. For the purpose of creating the power to run such machinery, and of the steam to heat said two buildings, defendant had in said two buildings three tubular boilers and three engines, one of which boilers was known as the big boiler and the other two as the old boilers.” On the 30th of May, 1S8Y, William P. Ballard died, leaving a last will and testa•ment which was proved in Cortland county and letters testamentary thereunder were issued to the plaintiff. Plaintiff’s complaint alleges that her testator, on the 30th of May, 188Y, “ was in the employment of the defendant, tending a mason by the name of Franklin H. Scott, wlio was laying up a brick partition wall immediately in front of and near by said big boiler and between the boiler room and the adjoining building. That plaintiff’s testator was employed by defendant to perform services in a part of the said wooden building remote from the place where said big boiler was situated ; * * he commenced upon the performance of said work unwarned by defendant of the defective condition of said boiler.” It is also alleged “ that for want of due care and attention to its duties towards its employees, * * * and while the plaintiff’s testator was in the employ of defendant, and in said employment was working within a few feet of said boiler, in the capacity as aforesaid, and without any contributory negligence or fault of plaintiff’s testator, the boiler known as the big boiler, by reason of said unsafeness, said defectiveness, of said neglect of defendant, * * * exploded * * * and plaintiff’s testator received severe and mortal injuries therefrom,” and in consequence of said injuries died on the 30th of May, 1887.
    The answer of the defendant denies that the injuries were received by plaintiff’s testator through the carelessness, negligence or improper conduct of the defendant, etc.

      B. A. Benedict, for the appellant.

      Franklin Pierce, for the respondent.
   Hardin, P. J.:

On the morning of the 30th of May, 1S87, when plaintiff’s intestate received the injuries from which he died, he was at work attending a mason, who was building walls for a room, and was at a point about twenty-five feet from the large boiler used by the defendant for running its machinery. Defendant’s large boiler, which had been in use some two years and was sixty-six inches in diameter and sixteen feet long, containing 103 three-inch tubes, exploded, causing the death of plaintiff’s testator. His body was found about twenty feet from where the front end of the boiler was when it exploded. Evidence was given tending to show that the boiler had been out of repair for at least four months before the time of the explosion. In January, one Osborn was called upon to repair the first horizontal seam on the right side of the boiler looking from the front, which seam ran along underneath the dome of the second section of the boiler; be repaired tbe whole length of the seam by calking it.” Upon attempting to use the boiler, the calking was blown out, and some evidence was given tending to show that it was weakened along the seam. Thereafter Adams was called, and again calked the boiler along the horizontal seam. The boiler was leaking steam, and it was difficult for him to make a firm job, and he used a testing-tool, going along the seam to stop the leaking. Osborn stated, as a ■witness, that the calking done by him “ was not a good job.” He made explanations, and attempted to show 'William Howard, the engineer, how to do the calking. Before Osborn left he called upon Gleason, one of the directors, and informed him that this seam in question was defective, and needed repair. Evidence was given tending to show that after the calking was done by Osborn and Adams, the boiler continued to leak steam along the horizontal seam more or less down until the time of the explosion ; and that Howard continued calking along the horizontal seam from January until the time of the explosion. During the trial, a portion of the horizontal seam claimed to have been injured by the calking, was brought before the jury, and the injuries thereto were pointed out by the witness, Professor Thurston, an eminent writer on the subject of boiler explosions, and he testified that the calking along the edge of the lap was not -well done; also, “ the metal being chipped first by a chisel to a smooth, even bevel, from the upper to the lower surface of the sheet, and then the calking tool would be applied so as to produce a change in the thickness of that bevel, by forcing the iron on the lower edge against the iron on the lower sheet so as to seal that leak. Improperly done, the calking would produce an irregular edge such as is seen at these several points upon which’ I place my finger, where the iron has been forced back and the straight line on the edge has been broken and the edge of the sheets upset, and the metal forced in between it and the lower sheet. The depth of the cut in the lower sheet, I should say from its appearance as lying there on the table, it was nowhere more than one-sixteenth of an inch, and in many places less. The tendency in that cut,- of expansion and contraction, would be to produce a line of fracture, * * * and the effect -would be to produce a fracture such as is seen in bending a piece of tin along a certain definite line. "* * The calking is designed to close tliat seam and prevent the leak, but tbis wedging action would open it still further.” He also testified that an explosion only occurs where there is a general weakness along considerable line of space, and that he found such a line of weakness along the horizontal seam; and he added that the break from rivit to rivit would contribute to make this a general line of weakness and cause the explosion. Other evidence was given tending to indicate that the horizontal seam had been badly calked, and the weakest part of the boiler was in the horizontal seam. When this action was before the court on the first appeal (51 Hun, 188), in the course of the opinion delivered by Kennedy, J., it was assumed that the defendant f£ was required to exercise reasonable care and diligence to ascertain that the machinery is reasonably safe and fit for the purposes to which it is to be applied.” Plaintiff’s testator was entitled to “ a safe and proper place in which to prosecute his work; ” and it was the duty of the defendant to furnish him such a place, and the defendant is liable for a failure to discharge such duty if the injury was occasioned by the non-performance of such duty. (Pantzar v. Tilly Foster Iron Mining Company, 99 N. Y. 368.) The rule is repeated in Probst v. Delemater (100 N. Y. 272), by Ruger, Ch. J"., in the following language : The duty of the master to furnish safe, suitable and sound tools, machinery and appliances for the use of the servant in the performance of the work of the master, and to keep them in repair, is not an absolute one, and is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection and repair of such appliances. This is a duty which cannot be delegated to a servant, so as to excuse the master from damages occurring through an omission to perform it, yet when the master has exercised all of the care and caution which a prudent man would take for the safety and protection of his own person, the law does not hold him liable for the consequences of a defect which could not be discovered by careful inspection or the application of appropriate tests to determine its existence.” The doctrine was again repeated in Fredenburg v. Northern Central R. R. Co. (114 N. Y. 582), in which case it is asserted to be the duty of the master to use care to make the place reasonably safe for its employees.

The ride is again approved in Dobbins v. Brown (119 N. Y. 188), and it is there said the neglect must be proved by direct evidence, “ or by proof of facts from which the inference of negligence can be legitimately drawn by the jury; ” and it is added: “ The mere fact that an accident occurred which caused an injury, is not generally of itself sufficient to authorize an inference of negligence.”

In Butler v. Townsend (126 N. Y. 110), Finch, J., in delivering the opinion, says: “The rooms in a factory have been deemed ‘ places5 for work which the master was bound to make safe by the exercise of reasonable care.” From these cases it is apparent that the duty that the defendant owed to the deceased was to use reasonable care and diligence to keep the place where he was required to perform the services in which he was engaged reasonably safe and shielded from injuries like the one caused by the explosion. It is,, therefore, the defendant’s duty to keep its boiler in suitable repair,, and in the discharge of that duty it became incumbent upon the defendant to make use of the proper instrumentalities in causing the repairs to be made. The trial judge submitted to the jury the question of whether the duty of keeping the boiler in proper repair was discharged; and incidentally in that connection he submitted to the jury to say whether Adams, Osborn and Howard, in then-efforts to put the boiler in a suitable condition, were the efforts of the defendant. Defendant, by delegating the performance of that •duty to Osborn, Adams and Howard, made them its representatives, and for the time being they stood in the place of the defendant in the discharge of that duty.

When this case was before us on the second appeal (39 N. Y. St. Repr. 842), it was said in the course of the opinion that “ The evidence was not * * * sufficient to authorize the finding that 'Howard had sole charge, and it should have been so held as matter of law. (Crispin v. Babbitt, 81 N. Y. 516.) He was there as an engineer, running the engines and boiler. There was a superintendent and an assistant, both of whom were the superiors of Howard,, and who had charge of the entire works, including the boilers and engines. They, and not Howard, stood in the-place of the master; ”' and later on in the opinion it was said: “ So far as the ordinary running of the engine and boilers was concerned, Howard was only a. •co-employee. As to the repairs, it is quite clear that he didn’t have full or sole charge; it was not a part of his duty, personally, to make the repairs, nor was the duty on him to select and employ the parties who should do it.” While we adhere to the opinion then delivered, we are also now of the opinion that the evidence warranted the judge in submitting to the jury the question whether the boiler exploded at the horizontal seam through the groove, caused by the improper calking and in consequence of the improper calking, and whether this negligent calking was done by Osborn, Adams or Howard, and, if it was done by Howard, whether he was authorized hy the defendant to do the calking, and that upon all the evidence the verdict of the jury finding favorable to the plaintiff on those questions should be supported. While there is much adverse evidence in the case upon the subject, we think, under all the circumstances, that the question was one of fact for the jury to consider. It was said in Mullan v. Philadelphia & Southern Mail Steamship Co. (78 Penn. St. 25), that whether the servant represents the master in respect to acts complained of, or occupies the position merely of a co-servant, is a question of fact to be determined by the jury upon sufficient evidence warranting a finding to that effect. Upon all the evidence, it was a question “ whether the corporation, by any of its agents, failed to exercise due care to prevent injury to the plaintiff’s testator from defects ” and improper repairs to the boiler in question, near which he was required to discharge his duties. (See Bushby v. N. Y., L. E & W. R. R. Co., 107 N. Y. 383.)

In Penn. & N. Y. Canal Co. v. Mason (109 Penn. St. 296), it was held: A master is bound to furnish his servants with such machinery as is reasonably safe and suitable for the work. If he employ other servants to construct or repair such machinery, he is responsible to his servants, who use the machinery, for any negligence in the work of construction or repairing.” In the course of the body of the charge, the trial judge submitted the question to the jury to determine whether the defendant, by its principal officers, had knowledge “ and permitted Howard to do the calking; ” and he added: Then I charge you that that is equivalent to an authority. So that, if there was negligence in the calking of this seam, and it was done by Howard, under permission of the defendant, then the negligence of Howard is the negligence of the defendant and for which the defendant is liable; ” and he added: “ If you shall find, however, that the seam was negligently calked and the calking was done by someone with the authority or permission of the defendant, then I charge you, gentlemen of the jury, that you shall find that the defendant has been guilty of negligence. If you find that the defendant has been guilty of no negligence, your verdict must be for the defendant.” At the request of the defendant he also, charged: “ The evidence must establish personal fault on the part of the defendant and master, or its equivalent thereto, and that the defendant is entitled to the benefit of the presumption that he has performed his duty until the contrary appears; ” and he also charged: “ That if the fault has been by an agent authorized to make these repairs by the defendant, that that is equivalent to a personal fault of the master.” In various other expressions the judge repeated the substance of his charge, and refused in some instances special requests which he deemed a call from the counsel to express in different language the same idea which he had delivered to the jury in the body of his charge.

Our attention is called to Brick v. Rochester, N. Y. & P. R. R. Co. (98 N. Y. 211). The duties that Thompson was performing at the time of the injuries “ were those of a fellow-servant and not of the master, and hence if he was chargeable with negligence, it was that of a fellow-servant and not of the master, within the principle of well-considered cases.” It was, therefore, held in that case that it was error to hold the defendant liable for the negligence of Thompson. In the case in hand the jury have found that Howard, as well as Adams and Osborn, were discharging the duties of the master in calking the boiler, and that a failure to perform that duty was the failure of the master rather than the failure of a co-employee. Therefore, the case in hand differs from the Brick case.

Our attention is called to Hussey v. Coger (112 N. Y. 614), and in considering the facts in that case, the opinion at page 620 states: “It was no part of the duty of the master to remove hatches or direct the particular mode of doing so, any more than to direct workmen in the use of the tools with which they performed their work. There were customary and established modes of performing such services, and each employee was expected to do his work in the manner and style to which he was accustomed, without special directions in respect thereto. It was entirely immaterial whether the superintendent undertook to perform the work of removing hatches or ordered it to be done by others; he was, in either case, engaged in performing the duty of a workman.” "We think that case differs from the one before us. ~We are of the opinion that no error was committed in refusing to grant a nonsuit at the close of the evidence.

(2) The trial judge permitted the jury to find that the defendant or its officers knew that Howard was calking the boiler at different times. The defendant asked the court to charge that there was no evidence that the defendant knew it, and that the affirmative evidence was that the defendant did not know it. The court declined and an exception was taken. We thinic the court was not in error. There was proof that defendant’s officers were in and about the boiler room frequently, if not daily. There was proof that steam was seen or heard escaping on many different times and days, and the witness Cady says: “Mr. Howard would take the calking tools that was left there by this boiler maker, and an armful of gunny sacks and go up on the boiler. He would go up on the boiler with his gunny sacks and bags, and sit on them, and use the calking tools • for calking, and would calk the seam more or less for several days; and sometimes when he came down off the boiler you couldn’t see or hear scarcely any escape of steam, but it wouldn’t last long before it would appear again, and he would go up again; sometimes it would be one day right after the next day; sometimes it would skip three or four days or a week.” The witness Bailey testified that he had heard steam escaping; and the witness Barton says he noticed it on several occasions; and the witness Shirley says he heard it occasionally; he was in the boiler room nearly every day and heard steam in the direction of the dome. The witness Bunn testifies that he saw it several times; saw small quantities of steam. It is true that witnesses were called to gainsay the testimony given upon that subject by the plaintiff, and the evidence of the employees and officers presented to the contrary produced a conflict upon that subject which we think was properly referred to the jury, and that the verdict ought not to be disturbed, finding the essential facts as claimed by the plaintiff in that regard.

(3) We think the defendant, was not prejudiced by allowing the witness Hitchcock to state in the course of his cross-examination in answer to the following question: “ Did you know Mr. Howard was absent from the boilers and left Mr. Fuller there in charge ? ” The answer of the witness was : “ I presume he was out more or less.” We think the statement made by the witness did not prejudice the defendant.

(4) A. witness was called who testified that he went to Mr. Gleason and told him the condition the boiler was in. Thereupon the court observed : “ The general statement that he told him of the condition of the boiler is not competent, and the part of the answer that he told him of the condition of the boiler may be stricken out, but you can read anything he said to him as to the condition of the boiler.” An exception was taken to the ruling which we think presents no error. The witness then proceeded to state what condition he told him it was in, to wit, that it was In a dangerous condition; I thought it would have to be repaired; I told him I had just been calking it; I stated to him the condition the boiler was in; I can’t tell you what he asked me; I can’t tell the words exactly I said to him now and remember to word it word for word; I can’t do it, but I can tell what he did say; I said to him the boiler was in a condition it would have to be repaired, and that right away; and then he wanted to know how and in what way, and what it would cost, and I went on and gave him an explanation.” Considerable more evidence was given touching the conversation had with Gleason in respect to the condition of the boiler and its need of repairs. Gleason was secretary of the company and was frequently in and out. of the boiler room down to about the twenty-eighth of April. It seems to have been proper to give the information that was communicated to Gleason wfitli a view of determining the extent of the knowledge of the defendant as to the condition of the boiler antecedent to the accident. (Stephens v. Hudson Valley Knitting Co., 52 N. Y. St. Repr. 795.)

(5) It is claimed by the defendant that some error was committed by receiving evidence on the trial as to communications to Howard. "When the defendant was about to give evidence to show that Howard wras a competent man to do the work, the court stated that it had ruled that the communications to Howard were immaterial, and the plaintiff’s counsel stated that “We are willing that all the testimony bearing upon the competency of Howard may be stricken out.” Thereupon the court observed to the jury: “You are to disregard all evidence as to Mr. Howard’s competency, because the question as to the competency of Mr. Howard is no longer in the case.”

Among the requests made by the defendant to charge the jury was the following: “ That the declarations in evidence, made to or by Howard, as to the condition or safety of the boiler in question, are not the slightest proof of the condition or safety of the boiler, and the jury must not use or consider them in determining its condition or apparent safety.” In response to that request the court observed: “ I so charge you. And, gentlemen, there has been stricken out of the case all evidence of the declarations of Osborn and Adams to Howard in reference to the safety or defects of the boiler.” To that response exception was taken by the defendant. .Thereupon the defendant made the following request: “ That said declarations to Howard, or Howard’s failure to make them known to the defendant, or its officers, are not competent evidence as bearing upon the question of the defendant’s having discharged its duty towards the deceased in the enqiloyment of competent fellow-workmen or otherwise, and the jury must not use or consider them in determining that proposition.” The court responded: “ I so charge you.” It is to be presumed that the instruction to the jury was complied with. (Holmes v. Moffat, 120 N. Y. 159.) It was also held in that case that “ Where the court instructs the jury to disregard testimony, improperly received, and there is other evidence to support the verdict, it will be presumed that the instructions were obeyed, and the error in its admission cured.”

The foregoing views, as well as those expressed by Smith, J., in an opinion delivered at Special Term, lead us to advise an affirmance of the judgment and order.

Merwin and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Louisa Hayden, Respondent, v. Mary R. Pierce, as Executrix of Eliza W. Brown, Deceased, Appellant.

      J&xecntoi's and administrators — ■ actions against them upon, rejected clwims — Statute of Limitations — sections 401 and 1822 of the Oode of Givil Procedure.

    Section 401 oí Hie Code of Civil Procedure, which excludes the period of non-residence and absence ot a defendant from the State of New York from the time within which actions must be commenced, applies to the short Statute of Limitations imposed by section 1822 of the Code, which prescribes that when an executor or administrator disputes or rejects a claim against his decedent’s estate, and the claim is not referred, “the claimant must commence an action, for tlic recovery thereof, against the executor or administrator, within six months after the dispute or rejection,” etc.
    Appeal by the defendant, Mary R. Pierce, as executrix, etc., of Eliza "W. Brown, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Otsego county on the 28th day of December, 1892, upon a verdict in favor of the plaintiff rendered at the Otsego Circuit, and from an order denying the defendant’s motion for a new trial made upon a case and exceptions.
    Appellant is executrix of Eliza "W. Brown, deceased. The action was brought upon a “ promissory note or instrument in writing,” bearing date, Milford, January 23, 1882, which contained the following language: “ On or before one year after my death, for value received, I promise to pay to Louisa Hayden one thousand dollars, with interest from April 1, 1882, at the rate of six per cent per annum, semi-annually. This note is given in consideration for services in full from March, 1864, to April 1st, 1882, and for services to be rendered for me from April 1st, 1882, until my death. * * * ” The no^e was given to the plaintiff, who continued in the employ of the maker thereof until the time of her death, which occurred on the 1st day of January, 1890. She left a last will and testament, in and by which the defendant was named as executrix. On the 9th of April, 1890, the will was admitted to probate by the surrogate of Otsego county, and defendant, as sole executrix, filed her official oath and consented to act as executrix of said will. The answer contains several denials and alleged payment of the note, and that on the 2d day of October, 1886, the testatrix conveyed by warranty deed a house and lot to the plaintiff, which the testatrix had just previously purchased for the sum of $1,600. The consideration named in the deed from the testatrix to the plaintiff was one dollar.
    The defendant in her answer alleged that “ the real and true consideration for the said conveyance to the plaintiff was the said written instrument and the aforesaid agreements of the plaintiff.” The answer also alleged that the plaintiff exhibited her said claim upon the written instrument on or about the 5th day of J anuary, 1891, and that the same was disputed and rejected, and that notice of the rejection of the claim was personally served on the plaintiff on the 26th day of January, 1891. That at the time of the presentation of the claim, the publication of notice to creditors requiring the presentation of claims against the estate of Eliza Brown had been commenced, and that the claim was not referred as prescribed by law, “ and more than six months elapsed after the rejection of said claim before the commencement of this action, or any action for the recovery thereof against this defendant. That this action was not commenced within six months after any part of the alleged debt became due, nor did the alleged cause of action accrue within six months before the commencement of this action. And the defendant pleads, as a bar to this action, the short Statute of Limitations provided in section 1822 of the Code of Civil Procedure.”
    An order made by the surrogate of Otsego county, dated the 29th day of December, 1890, in The Matter of the Personal Estate of Eliza W. Brown, was granted on the application of the executrix, which provided as follows: “ It is ordered that she cause to be published in the newspaper called the Otsego Bepubliecun, published at Cooperstowu, in said county, a. notice requiring all persons having claims against said deceased, to present the same, with vouchers thereof, to the said executrix, at the law office of Ediclc & Smith, in the village of Cooperstqwn, N. Y., on or before a clay to be specified in such notice, which shall be at least six mouths from the day of the first publication of said notice.” A notice was published. January 13, 1891, in the city of Chicago, the defendant wrote a letter to Messrs. Ediclc & Smith, in which she stated: “ I desire that you, as my attor- ■ neys, immediately serve upon said claimant a notice of rejection and disallowance;” and about the twenty-fifth of January the attorneys served upon the plaintiff a written notice, referring to the claim presented by tbe plaintiff, which, among other things, contained the words: “ That the annexed alleged claim presented against the estate of Eliza W. Brown, deceased, is rejected and disallowed by Mary R. Pierce, as executrix of the last will and testament of Eliza W. Brown, deceased,” which notice stated the grounds upon which it was rejected, and was dated January Y, 1891, and signed “ Mary R. Pierce, executrix of the last -will and testament of Eliza W. Brown, deceased.” It was conceded “ that this action was not commenced until after December 14th, 1891; that the action was commenced by the service of the summons on the defendant without the State of New York, pursuant to an order obtained for the service thereof by publication, and that such order for service by publication was made on December 24,1891.” At the close of the evidence the defendant moved the court to direct a verdict in favor of the defendant on the ground that the action was barred by the Statute of Limitations; the motion was denied and the defendant excepted. Thereupon the defendant asked to go to the jury upon the question of whether or not the house and lot were conveyed to the plaintiff in payment of the note, which the court allowed. At the close of the charge the defendant’s counsel asked the court “to hold that the defense of the Statute of Limitations is fully established, and that a verdict should be directed for the defendant.” The court declined and an exception was taken.

      Mooney & Shipman, for the appellant.

      H. M. Ucvrris, for the respondent.
   Hardin, P. J.:

Whether the note was paid or not by the conveyance of the house and lot mentioned in the pleadings and the evidence was a question of fact for the jury. Mrs. Margaret B. Wilber testified in behalf of the plaintiff, and, in the course of her evidence, said: “ Mrs. Brown was -wheeled up to our house, and she said she did not think she had done enough for Louisa; that she, Mrs. Brown, had become paralyzed since she gave plaintiff the note, and she wanted to do something more for her, and she thought the best thing she could do would be to buy the plaintiff a house and lot. Then she said that with the note the plaintiff had and with a house and lot the plaintiff could, by doing what little work she could, could make a living, -x- -x- -x- Mrs. Brown said: I don’t want to change my will, but I want to deed her, the plaintiff, this house. Mrs. Brown was to have the rentals during her lifetime; and said, I have money enough to give her this house and not change my will. 'x' * * Mrs. Brown said she wanted to give the house and lot besides the $1,000 note, and felt she had not given Louisa as much as she ought to do. I knew of Mrs. Brown giving the plaintiff the $1,000 note. She, Mrs. Brown, asked me how much she ought to give Louisa. She asked me if I thought $500 was enough, and I said no. She then asked me if I thought $1,000 was enough, and I said it was none too much. I told her, Mrs. Brown, that was not as much as plaintiff had earned.” In giving evidence of the declarations of the testatrix the witness Diefendorf said: “ She said she didn’t think she had done enough for Louisa, and she had bought a house and lot and wanted to know of me what I thought about her giving her the house and lot; I told her that she couldn’t do too much for Louisa; then she said she concluded to give her a deed of that place, but to be hers as long as she lived; that is, Mrs. Brown’s. I attended to the execution of the deed.” Ye think the evidence just quoted, together with the other testimony bearing on the subject, amply justified the jury in finding that it was not the intention of the testatrix to satisfy and cancel the note by the conveyance of the house and lot to the plaintiff; we must, therefore, accept the verdict upon the question involved, as it is predicated upon evidence ample and sufficient to justify a finding that the note had not been paid by the testatrix.

(2) It appears by the evidence that the defendant resided in the city of Chicago, in the State of Illinois, when she took letters testamentary, and she has continued to reside there. Ve think the defendant failed to make out a defense under section 1822. of the Code of Civil Procedure, and that the trial judge did not err in refusing to hold that the defense of the short Statute of Limitations was established. (Code Civ. Proc. § 401 ; Titus v. Poole, 60 Hun, 1 ; S. C., 38 N. Y. St. Repr. 627; Wilder v. Ballou, 63 Hun, 118 ; S. C., 43 N. Y. St. Repr. 514 ; Hill v. Supervisors, 119 N. Y. 344.) In the latter case, at page 347, Judge Gray said: “ Section 405 was enacted with reference to the enforcement of the civil remedies prescribed by the Code, and its application is to actions generally, and which the Code of Civil Procedure was enacted to regulate.” The defendant was absent from the State, “ and resided out of the State when the cause of action accrued.” The proof and admissions upon the trial are abundant upon that subject. (Wheeler v. Webster, 1 E. D. Smith, 1 ; Bennett v. Cook, 43 N. Y 537.)

(3) We think no error was committed in rejecting the declaration of the deceased which the defendant sought to prove by the witness Parshall. It does not follow that because her declarations were received in evidence against her executrix that the declarations of the deceased could be used in her own behalf. The opinion delivered at Special Term by Parker, J., properly disposes of the questions involved in the case.

The judgment and order should be affirmed, with costs.

Merwin, J., concurred; Parker, J., not sitting.

Judgment and order affirmed, with costs.

       The Special Term opinion discusses the question of the Statute of Limitations as follows:
      Parker, J.;
      The claim upon which this action is brought was presented to the attorneys for the defendant, at Cooperstown in this State, and rejected in January, 1891. At that time the defendant was and ever since has been a resident of Chicago, Illinois, and at no time prior to the commencement of this action had she been within this State.
      This action was not commenced until considerably more than six months had elapsed since such rejection, and the claim itself has never been referred. The defendant, therefore, claims that a recovery thereon was barred by the provisions of section 1822 of the Code. The plaintiff claims that the provisions of that section do not apply to this case, because of the non-residency and continued absence of the executrix from this State. I. so held at the Circuit and such is the question that I am now asked to review.
      The argument is that the provisions of the section 401, in chapter 4 of the Code, do not apply to cases provided for in section 1822 ; that the cases provided for in such last section are expressly excepted from the operations of section 401 by the provisions of subdivision 1 of section 414.
      In other words, that a claim presented to an executor and rejected is “a case where a different limitation is specially prescribed by law,”- within the subdivision 1 of section 414, and, hence, the non-residency of the defendant has no effect upon the omission to bring suit within six months after the rejection of the claim.
      It seems to me that tliis argument has been rejected by our General Term, and that the question presented is no longer an open one in tjps department.

        In Titus v. Poole (60 Hun, 1), the defendant sought to defeat the claim against him because it was not brought within six months after its rejection. But the court held that although not brought within such period, the provisions of section 1822 did not control, because an action for the same claim had been commenced within the six months in which the plaintiff was nonsuited, and that, hence, the provisions of section 405 authorize him to commence a new action notwithstanding the limitation prescribed in section 1822.
      In Wilder v. Ballou (63 Hun, 118), the defendant sought to defeat the action on the ground that it was barred by the short limitation contained in section 1822. But the court held that it was not barred, because the commencement of.the action on the claim was “stayed by an order of court,” and that, hence, under the provisions of section 406, the time of continuance of such stay was no part of the six months’ limit fixed by section 1822.
      Here are two distinct decisions, that the limitation provided for in section 1822 may be modified and overcome by the- provisions of sections 405 and 406 in chapter 4.
      In other words, that a claim presented to an executor and rejected, is not such a case as is excepted from the operation of the provision of chapter 4 by section 414.
      If, by virtue of the provision of section 406, the time during which an action is stayed by order of court is no part of the six months’ limit provided by section 1822, clearly section 401 can apply and the time during which this defendant was a non-resident and out of the State is no part of such limitation.
      On the authority of the cases above cited I must hold that this action was not barred.