text:
    William Youmans, Appellant, v. Sherrill E. Smith and George H. Paine, Respondents.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Nellie House, Respondent, v. Frederick Walch, Appellant.
   Judgment and order affirmed, with costs.


text:
    Ambrose Hine, Appellant, v. Norman Hine and Others, Executors, etc., Respondents.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Esther Loroman and Another, Respondents, v. George Loroman, Appellant.
   Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    Mattie Lydecker, Plaintiff, v. Samuel Gilchrist, Defendant.
   Judgment affirmed for non-submission of papers according to stipulation, with costs.


author: Dykman, J.:

text:
    Roger M. Sherman, v. Herbert L. Saterlee.
   Dykman, J.:

We think the trial judge made the proper disposition of this action at the Circuit, and that the appeal is destitute of merit. Whatever may be said about the title of the defendant to the fund in controversy there is no reason why it should be recovered by the plaintiff. The judgment should bo affirmed, with costs. Barnard, P. J., and Pratt, J., concurred. Judgment affirmed, with costs.


author: Pratt, J.:

text:
    Levi P. Rose, Respondent, v. David Hawley and Others, Appellants.
   Pratt, J.:

The facts in this case were before the court in a former action, and it was then held that they established no breach of the conditions of the deed under which defendants make title. (See 45 Hun, 592.) That question, among others, was argued before the Court of Appeals, which in 118 N. Y 502, 517, was also of opinion that the condition was not violated. As the views expressed by this court as to the legal effect of the facts have been expressly approved, we should scarcely feel at liberty to depart from our decision in 45 Hun, if we Were in doubt of its correctness. But, upon re-examination, we are confirmed in our opinion as there expressed. According to those views the plaintiff should have been nonsuited at the close of his case. The plaintiff argues that the previous judgment is not binding upon us as an adjudication. However that may technically be, the opinion of our appellate court upon a fixed state of facts, rendered upon full argument, cannot be disregarded. The judgment must be reversed upon the facts, and a new trial ordered, costs to abide the event. Barnard, P. J., concurred; Dykman, J., not sitting Judgment reversed and new trial granted, costs to abide event.


text:
    Kate B. Verplanck v. William Farrell.
   Appeal dismissed. Barnard, P. J., not sitting.


text:
    Kate B. Verplanck v. William Farrell and Others.
   Appeal dismissed. Barnard, P „ , not sitting.


text:
    James McCaldin, Respondent, v. William A Parke and Another, Appellants.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial. The' principles of this case were passed upon in a former appeal (see 66 Hun, 323. — Rep.), and, therefore, there is nothing to be examined at present except the question whether there are any valid exceptions to the rulings of the court upon the trial. No violation of the principles laid down in the opinion upon the former appeal are pointed out by the appellant, and we find none in the case, and we, therefore, refrain from discussing anything in the case except questions that were not raised in the former appeal The exception to the introduction of the bills paid by the plaintiff for repairs was not well taken, as they were merely introductory to evidence of payment which was put in with the bills. Neither was the exception to evidence that the vessel was properly loaded, error In fact, all the exceptions to the admission of evidence are without merit, the evidence objected to being a necessary part of the plaintiffs' case or proper to meet suggestions and inference made by the defendants. There are many exceptions to the charge of the judge, but we fail to find error prejudicial to the defendants in any one of them. The majority of them related to questions of fact which were properly submitted to the jury under the former General Term opinion. If that opinion properly states the law of this case there is no error. The amount of damage was fixed in the contract of employment. All the questions discussed in the brief of the defendants relate to principles raised upon the former appeal and require no discussion at this time, as we adopt and adhere to the former opinion, and affirm the present appeal upon it. The judgment should be affirmed, with costs. Judgment and order denying new trial affirmed, with costs.


text:
    William Hill, Plaintiff, v. The Prudential Insurance Company, Defendant.
   Appeal withdrawn.


text:
    Mary L. Lefurgy, Administratrix, Respondent, v. James Stewart and Another, Appellants.
   Dykman, J.:

This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiff. The action is for the recovery of stone delivered to the defendants and the principal controversy had reference to the prices of the stone. A careful examination satisfies us that the referee has made a proper disposition of the case, and his opinion shows that he examined the case with great care. The judgment should be affirmed, with costs. Barnard, P. J., and Pratt, J., concurred. Judgment affirmed, with costs.


text:
    Matter of Silas J. Owen.
   Motion for reargument to be applied for at Special Term. Barnard, P. J., not sitting.


text:
    David M. Torrey, Appellant, v. Francis A. Waters and Others, Respondents.
   Pratt, J.:

The defendants' affidavits fairly meet the plaintiff’s. Upon the whole case, we do not see that any fraud is made out. The discounts were made during so long a time that we must believe plaintiff had knowledge of defendants’ financial condition, or else that he trusted them as officers of the corporation in reliance upon its solvency Order affirmed, with costs. Dykman, J.: This is an appeal from an order vacating an order of arrest granted in this action. A perusal of the papers convinces us that the charges of fraud and conspiracy, upon which the order of arrest was based, are unfounded and an afterthought. The plaintiff had cashed many drafts similar to those in question here and must have been in possession of full knowledge respecting the parties and their mode of doing business We think the order vacating the order of arrest was right and should be affirmed, with ten dollars costs and disbursements. Barnard, P J., concurred. Order affirmed, with costs and disbursements


author: Per Curiam:

text:
    Annie A. Morss, Respondent, v. Thomas R Hawley and Others, Appellants.
   Per Curiam:

The questions involved in this appeal seem to have been fully covered by our opinion on the former appeal. We, therefore, affirm the judgment, with costs. Judgment affirmed, with costs.


author: Dykman, Jr

text:
    George Morgan, by Guardian, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Dykman, Jr

This is an action for assault and batteiy committed by an officer of the defendant upon the plaintiff. The testimony on the part of the plaintiff made a plain case for the jury, and the motion for a nonsuit was properly denied. The testimony on the part of the defendant tended to show that the officer did no more than he was justified in doing in the discharge of his duty. So the case went to the jury under a charge to which there was no exception, and which defined the rights of the parties with accuracy. As the verdict was round for the plaintiff, we must assume that the jury found facts according to the testimony he laid before them, and that made an aggravated case of assault and battery. Under such circumstances, we cannot interfere with the verdict, and the judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs. Pratt, J., concurred; Barnard, P. J., not sitting. Judgment ana order denying new trial affirmed, with costs.


text:
    Daniel Smith, Respondent, v. John Flannery, Appellant.
   Dykman, Jr

This is an action for assault and battery, and upon the trial the plaintiff introduced proof of two assaults and injuries, one committed by the defendant himself, and one committed by Glynn by direction of the defendant. There was much contradiction in the testimony. One witness, however, who was with the plaintiff testified positively that he heard the defendant say after the plaintiff was outside of the defendant's house, “Glynn, go out and do that man up.” That was denied by the defendant, and other witnesses who were present said they did not hear it said. That was a very material question upon the trial, because the serious injuries or the plaintiff were received outside of the house. Upon that sharp conflict of testimony the ease went to the jury and the verdict was found for the plaintiff for $570. The injuries of the plaintiff were very severe, and the verdict indicates the belief of the jury of the testimony introduced in his behalf. That being so, the evidence established an aggravated case, and this court cannot interfere. The judgment should be affirmed, with costs. Pratt, J., concurred; Barnard, P. J., not sitting. Judgment and order denying new trial affirmed, with costs.


text:
    Jeremiah P. Robinson and Others, Respondents, v. William H. Beard and Others, Appellants.
   Dykman, J.:

This is an action to compel the defendants, as executors of William Beard, deceased, to perforin specifically certain covenants contained in a lease made by their testator to Jeremiah P. Robinson and another. The action has been tried before a judge at Special Term and the facts found in favor of the plaintiff, and a judgment directed in his favor. The defendants have appealed from the judgment, and while they find no fault with the findings of fact, they yet contend that the judgment is erroneous. On the contrary, in our view, the case depends entirely upon the facts, and our examination satisfies us that the trial judge reached the correct legal conclusion upon the facts which he found, and that all his findings are fully justified by the evidence. The ease depends upon its own peculiar facts and a lengthy analyzation of the evidence will serve no beneficial purpose. The judgment should be affirmed, with costs. Barnard, P. J., concurred; Pratt, J., not sitting. Judgment affirmed, with costs*


text:
    Albert G. Howe, Respondent, v. Edward M. Oldham, Appellant.
   Action for assault Judgment reversed and new trial granted costs to abide event. Opinion by Pratt, J. (not published by direction of Pratt, J); Barnard, P. J., dissenting.


author: Pratt, Jr

text:
    New York, New Haven and Hartford Railroad Company, Respondent, v. Henry Welsh and Another, Appellants.
   Pratt, Jr

The need of plaintiff for the land sought to be condemned is fully proven. And there can be no doubt that the public interest is sub-served by granting full facilities to plaintiff to transact its business. The case of Mark (25 N. Y. St. Repr. 502) must be regarded as establishing the right of the plaintiff to condemn lands in this State. The former action, where the village sought to condemn the same land to be used as a public street, has no bearing upon this proceeding. The question then was, whether this land was needed for a public street. The present question is whether this land is needed by the railroad company to provide adequate facilities for its traffic. The case was well decided and the judgment must be affirmed, with costs. Barnard, P. J., concurred; Dykman, J., not sitting. Judgment affirmed, with costs.


text:
    Edgar L. Pierson, Appellant, v. Norman L. Munro, Respondent.
   Dykman, Jr

This is an action to recover commissions for the sale of the plant and business of the defendant in the city of New York, consisting of a printing and publishing establishment, real property, machinery, plates and planting presses, several publications and the good will of all the business. The price fixed for the property was $2,000,000, and the commission to be paid in case of a sale was fixed at $75,000, and that is the amount claimed in this action. The complaint was dismissed upon the trial because no sale was established. There was no effort to prove a sale because none had been effected, but the plaintiff claimed the right to recover without showing a sale on the ground that the defendant had overstated the productivity of the plant. The plain and conclusive answer to the proposition was that the defendant had not made any representations upon the subject. We think the judgment may be sustained upon two grounds: First, the defendant never employed the plaintiff to make the sale, and, second, that no sale was ever made. The judgment should be affirmed, with costs. Barnard, P. J., and Pratt, J., concurred. Judgment affirmed, with costs.


text:
    Charles A. Silliman, Respondent, v. The Albany and Troy Steamboat Company (Limited), Appellant.
   Pratt, Jr

There was enough evidence of employment to take the case to the jury. There is no substantial contradiction that at the first interview between Dodd and Mark the plaintiff stated that he was acting as broker, and should claim a commission if a sale was made. Nor does it appear that any denial was then made of defendant’s obligation to pay commissions in that event. The president of defendant says he answered: “ No, sir; I have nothing to do with the handling of the steamboat,’’but he also testifies that the negotiation at once engaged between one of defendant’s officers and the agent of the pin-chaser. The fact that defendants paid a commission of $1,000 on the sale to the one of their agents who came into the discussion at this stage cannot affect the plaintiff’s right. It is urged that the final sale was the outcome of a negotiation begun the year previous. At that time defendants offered the vessel for $30,000, and the offer was refused. It is plain defendants considered that negotiation abandoned, for they chartered the vessel to another corporation for the season. So the fact that the sale was for $7,000 more indicates that a new negotiation was undertaken. A vendor whose offer is refused as too high, does not ordinarily as a part of the same negotiation raise his price. It is said the proof does not show that Dodd reported his action to the purchaser. The law presumes without proof that an agent reports to his employer. (Story Agency, §§ 100,20R.) So strong is that presumption that knowledge of the agent is notice to the principal. The judgment must be affirmed, with costs. Dyioian, J.: This is an action for the recovery of commissions for the sale of the steam ferry boat F. P. James. The claim was contested upon two grounds: First, that the plaintiff was not employed to make the sale, and, second, that the sale was not .made by him. There was no direct proof of employment, but there was testimony and there were circumstances from which an employment might fairly be inferred. There was much conflict in the testimony, but the case was one peculiarly for the jury, and it was submitted in a plain and correct charge by the trial judge, and both questions were found in favor of the plaintiff. The counsel for the respondent took the position that there was no certificate that the case contained all the evidence, but the point was waived on the argument, and we have examined the case as though it contained all the testimony. There being testimony sufficient to sustain the verdict Sve cannot interfere with the verdict. The judgment and order denying the motion for a new trial upon the minutes of the court should be affirmed, with costs. Barnard, P. J., concurred. Judgment affirmed, with costs.


text:
    The First National Bank of Sing Sing, Respondent, v. Thos. H. Chalmers and Another, Appellants.
   Pratt, J.:

The testimony sustains the findings that defendants, for a good consideration, agreed with plaintiffs and with Spruce and Leary to pay the debt owing to the bank. That is the only issue in the case, and the judgment must be affirmed, with costs. Judgment affirmed, with costs-


text:
    Vernon Travis, Respondent, v. Edward L. Gallon, Appellant.
   Dykman, J.:

I his action was tried first in a court of a justice of the peace, where the plaintiff obtained a verdict. Then on appeal to the County Court of Westchester county there was another trial, and the plaintiff again obtained the verdict. The action was for service rendered by the plaintiff to the defendant, and the chief controversy upon the trial arose over the question of payments made to the plaintiff. That was an affirmative defense, and although we would have been better satisfied with a verdict for the defendant, yet we cannot say that the payments were so fully established as to justify us in reversing the judgment. There was a sharp contradiction of the testimony of the defendant, and the jury must hate disregarded it to a very great extent. We can see no reason for such unbelief, but we cannot say there was none. We reach this conclusion with hesitation, but we cannot say the verdict is so plainly against the preponderance of evidence as to justify an appellate court in interfering therewith. The judgment and order denying the motion for a new trial should be affirmed, with costs. Barnard, P. J., concurred. Judgment affirmed, with costs.


text:
    Edson C. Jennings v. The D. G. Barton Company.
   Reargument ordered. Dykman, J., not sitting.


text:
    The People of the State of New York v. John Craig.
   Appeal dismissed.


text:
    Ricot J. Dovale v. Bernard L. Ackerman, Sr., and Others.
   Having consulted with Messrs. Justices Bartlett and Barrett, we think this application should be granted.


text:
    In the Matter of the East River Bridge Company.
   Reserving all questions as to the validity and sufficiency of the statute until the coming in of the report of the commissioners to be appointed upon this application, the Court grants the motion.


author: Per Curiam :

text:
    Yellow Pine Company. Respondent, v. Thomas Kane, Appellant.
   Per Curiam :

The order must be affirmed, with ten dollars costs and disbursements. Present, Van Brunt, P. J., Follett and Barrett, JJ. Order affirmed, with costs and disbursements.


text:
    Ambrose G. Agate v. Caroline E. House, Individually and as Executrix, etc.
   Per Curiam :

We are of opinion that upon the reversal of the interlocutory judgment, and the ordering of new trial in the action, the final judgment, whose only foundation was the existence of the interlocutory judgment, necessarily fell; and that the Special Term should have stricken said judgment from the record, and upon motion being made for such relief. In view of the denial of such application by the Special Term, with- permission to apply to the General Term, although we think it was entirely unnecessary under the' prayer for further and other relief contained in the motion papers herein, we think the motion should be granted striking from the record the said final judgment. Present, Van Brunt, P. J., Follett and Barrett, JJ.


text:
    Catharine A. Faure and Others, Appellants, v. The American Society for the Prevention of Cruelty to Animals, Respondent.—Catharine A. Faure and Others, Appellants, v. Edwin Bergh, Jr., and Others, Executors, etc., Respondents.
   Per Curiam :

The judgment in each case sustaining the demurrer and dismissal of the plaintiff’s complaint should be affirmed, with costs, the plaintiff having appealed and put the defendants to the labor and expense of preparing their points. But the orders granting extra allowances should be modified by reducing such allowances to $250 in each case. Present, Van Brunt, P. J., Follett and Barrett, JJ. Judgment in each case sustaining the demurrer and dismissing plaintiffs’ complaint affirmed, with costs. The orders granting extra allowance modified by reducing such allowances to $250 in each case.


text:
    The People of the State of New York, Appellant, v. Joseph Kuntz, Respondent.
   Conviction affirmed; no opinion,


text:
    Rosalie E. Forbes, Appellant, v. John E. Forbes, Respondent.
   Order affirmed, without costs.


text:
    John Cahill, as Executor, etc., v. Mary A Russell and Others.
   Motion granted.


text:
    Alexander McP. Edmond, Appellant, v. The Alexander Smith and Sons Carpet Company, Respondent.
   Motion granted by default.


text:
    The Holland Trust Company, Appellant, v. Edward S. Farron, Respondent, Impleaded, etc.
   Per Curiam :

We think the excuse presented by the plaintiff for not bringing this case to trial was sufficient to justify the denial of the motion upon plaintiff placing the case upon the calendar and paying ten dollars costs of motion. The order should, therefore, be modified by providing that upon the payment by the plaintiff of teu dollars costs of motion in the court below within ten days after the service of the order on the appeal, and noticing this case, and placing the same upon the calendar for the next circuit Court, that the motion to dismiss is denied; th:tt unless su.-h costs are paid and -the case noticed and pi iced upon the calendar as aforesaid then Y'j order is affirmed. Such modification to be without costs of this appeal. Present, Van Brunt; P. J., O'Brien and Ingraham, JJ. Order modified as directed in opinion, and as modified affirmed,without costs of this appeal.


text:
    Christian F. Schramme. Appellant, v. Edward S. Farron, Respondent, Impleaded, etc.
   Per Curiam :

We think the excuse presented by plaintiff for not bringing this case to trial, was sufficient to justify the denial of the motion upon plaintiff placing the case upon the calendar and paying ten dollars cost of motion. The order should, therefore, be modified by providing that upon the payment by the plaintiff ‘of ten dollars costs of motion in the court below within ten days, after the service of the order on this appeal and noticing this case and placing the same upon the calendar for the next Circuit Court that the motion to dismiss is denied; that unless such costs are paid and the case noticed and placed upon the calendar as aforesaid, then the order is affirmed. Such modification to be without costs of this appeal. Present, Van Brunt, P. J., O’Brien and Ingraham, JJ. Order modified as directed in opinion, and as modified affirmed, without costs of this appeal.


text:
    Union Square Bank, Respondent, v. Theodore Reichmann, Appellant, Impleaded, etc.
   Per Curiam :

The order appealed from should be affirmed with ten dollars costs and disbursements, for tbe reasons stated in tbe opinion in the case of The Hanover National Bank v. Stebbins, decided herewith. Present, Van Brunt, P. J., and Follett, J. Order affirmed, with ten dollars costs ana disbursements.


author: Mem. by Herrick, J.:

text:
    Decisions handed down May 9,1893.
    Michael Murphy, Respondent, v. Hugh Graham as Executor of the Last Will and Testament of William Carroll, Deceased, Appellant.
   Mem. by Herrick, J.:

The questions involved in this case are entirety of fact, and while there is a conflict of evidence, there is evidence to sustain the findings of the referee, and I can find no sufficient reas m t) reverse such findings. The judgment should be affirmed, with costs. Mayham, P. J., concurred. Judgment affirmed, with costs.


author: Mayham, P. J.:

text:
    William H. Townsend, Respondent, v. Albert Stewart, Appellant.
   Mayham, P. J.:

We have examined the various exceptions to the charge of the judge and his refusals to charge, and see no error in the same for which the judgment in this case should be reversed. The case was mainly submitted as questions of fact, under proper instructions by tbe court, as to the law bearing on the facts as presented by the proof on both sides. It was a disputed question of fact whether the plaintiff was properly on the defendant’s premises by his invitation, or permission, or was there as a trespasser. Under the evidence we think that that was properly submitted to the jury as a question of fact. It was also a disputed question -whether the plaintiff remained on the defendant’s premises after being ordered off, so as to make him a trespasser. We think the instructions of the court in his charge laid down the correct rule of Jaw, and that that question was also properly submitted to tbe jury. Also the question, as to which of these parties under the evidence committed the first assault, was an open question of fact properly submitted by the judge to the jury; and so of every question, which the judge was requested by the defendant to give positive instruction as to the fact, was by him properly submitted as question of fact for the jury under procer instruction as to the law. On the whole case the charge of- the judge seems entirety fair and impartial, and we discover no error of law in it, for which the judgment should be reversed. The questions of fact ■were for the jury, and the evidence although conflicting was sufficient to uphold the verdict, and the refusal of the judge to grant a new trial upon the minutes was not error for which his order can be reversed. The judgment and order must be affirmed, with costs. Putnam and Herrick, JJ., concurred. Judgment and order affirmed, with costs.


author: Mem. by Herrick, J7:

text:
    Aaron M. Stevens and Others, Respondents, v. Central National Bank of Boston and Other Certificate Holders, Appellants, Impleaded with Others.
   Mem. by Herrick, J7:

This case has been once before this court (57 Hun, 499), upon substantially the same facts. Upon the new trial the court in its decision followed the judgment, and opinion of the General Term, and I can see no reason for differing from that decision. The judgment appealed from should be affirmed, with costs. Mayham, P. J., concurred; Putnam, J., not acting. Judgment affirmed, with costs.


text:
    Decisions handed down May 25, 1893.
    William F. Rodgers, Respondent, v. Edward J. Whalen, Appellant.
   Judgment affirmed; no opinion.


text:
    William Moore, Respondent, v. Maria Moore, Appellant.
   Order affirmed, without costs; no opinion.


text:
    Hiland B. Fairbrother and Thomas Dunn, Plaintiffs, v. Mary Devlin, Defendant.
   Order affirmed, with costs; no opinion.


text:
    John H. Haskell, Respondent, v. The Northern Adirondack Railroad Company, Appellant.
   Motion for reargument granted, costs of motion to abide event; no opinion.


text:
    The People of the State of New York, Respondent, v. Edmund Post, Appellant.
   Judgment affirmed; no opinion.


text:
    Henry Morton, as Trustee, etc., Respondent, v. Peter Callanan, Appellant.
   Order affirmed, with costs and printing disbursements; no opinion.


text:
    Cornelia Kane Rathbone, as Executrix of the Last Will and Testament of Lewis Rathbone, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs; no opinion.


text:
    Orrando P. Dexter, Appellant, v. William Dana Dustin, Leroy M. Wardner, George W. Dustin and Milton Heath, Respondents.
   Judgment affirmed, without costs to either party; no opinion. Putnam, J.. not acting.


text:
    Julius V. Burgevin, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Motion for leave to go to the Court of Appeals denied, with ten dollars costs; no opinion.


author: Haight, J.:

text:
    The People of the State of New York, Respondents, v. William A. McDowell, Appellant.

      License granted ly a de facto excise commissioner — a protection to the licensee, in selling liquor thereunder.

    The rule that a third person or stranger, whose rights are dependent upon the official acts of another, is protected hy showing that the person who performed the official act relied on was an officer defacto, extends to a person who, in gqod faith, has taken out, and sold liquor under, a license granted hy a de facto excise commissioner.

      Cronin v. Stoddard (97 N. Y. 271), distinguished.
    In March, 1890, Lemuel C. Hendricks was elected a town commissioner of excise for the term of three years, hut neglected to take and file the oath required hy chapter 168 of the Laws of 1890 within the time prescribed hy that act (although he afterwards on June ninth did so), and on June seventh of that year the town hoard declared the office vacant and appointed David Thompson an excise commissioner, who qualified and entered upon the discharge of his duties as such, and at the next annual town meeting, in March, 1891, was elected excise commissioner for the term of two years in the place of Hendricks, and qualified and continued to act as such.
    At a meeting of the hoard of commissioners in May, 1892, at which Thompson acted as a member of the board, licenses were granted, signed by him as one of the commissioners, Hendricks not acting or offering to act as a commissioner at that time.

      Held, that Thompson was, at the time of granting such licenses, a commissioner de facto, so that a license signed by him as one of the board of commissioners was a defense to the person who had received it in good faith against a prosecution for selling liquor without a license during the time covered thereby.

      Appeal by the defendant, William A. McDowell, from a judgment of the Court of Sessions of Allegany county, rendered on the 15th day of September, 1892, upon the verdict of a jury, convicting the defendant of the crime of selling liquor without a license, and from an order denying the defendant’s motion for a new trial.
    Chapter 163 of the Laws of 1890, which took effect on its passage, April 22, 1890, prohibits excise commissioners and certain other officers from being interested in the manufacture or sale of liquors, ales, wines or beer, and prescribes that every excise commissioner and other officer named shall, “ within thirty days after the passage of this act, make and subscribe an oath, * * * to the effect that he is neither directly or indirectly interested in the manufacture or sale of any spirituous or malt liquors, ales, wine or beer.”

      & S. Taylor, for the appellant.

      Charles H. Brown, District Attorney, for the respondents.
   Haight, J.:

The defendant was indicted for selling liquor without a license in the town of Cuba, Allegany county, N. Y., on the 30th day of May, 1892. Upon the trial, the defendant admitted the selling, but claimed that it was done under a license duly issued to him by the commissioners of excise of that town.

The facts are substantially as follows: At the town meeting held in and for the town of Cuba on the 10th day of March, 1890, Lemuel T. Hendricks was elected commissioner of excise for the term of three years; The board of commissioners was then composed of Henry C. Petitt, who was elected in 1888, John Armstrong, who was elected in 1889, and Lemuel C. Hendricks, who was elected, as we have seen, in 1890. They entered upon the discharge of their duties as such commissioners of excise and granted some licenses. They neglected, however, to take and file the oath required by the Laws of 1890, chapter 163, within the time required by that statute. On the Jth day of June, 1890, the town board declared the offices of commissioners of excise vacant and appointed Prank B. Lyon, Martin N. Butts and David Thompson, commissioners of excise to hold office until the next regular town meeting. These persons so appointed qualified as such commissioners and entered upon the discharge of their duties as such and served until the next annual town meeting. After the appointment and qualification of the new board of commissioners and on the 9th day of June, 1890, Petitt, Armstrong and Hendricks took the oath required by chapter 163 of the Laws of 1890, and filed the same in the town clerk’s office. At the annual town meeting held in the town, in March, 1891, Tobias Snyder was elected commissioner of excise for the term of three years in the place of Petitt, whose term of office had expired. David Thompson was elected such commissioner for the term of two years in the place of Hendricks and James Ormiston was elected for the term of one year in the place of Armstrong. The new board so elected qualified and entered upon the discharge of their duties as such officers, received the applications and granted licenses for the year 1891. Ormiston and Armstrong resigned in July, 1891. At a meeting of the board of commissioners held on the 1st day of May, 1892, a license was issued to the defendant signed by Commissioners Thompson and Snyder, and the defendant paid them therefor the sum of fifty dollars.

Snyder having been elected to succeed Petitt, at the expiration of his term, and having duly qualified and complied with the requirements of the statute, became a commissioner of excise de jure, and there is no question but that he had the right to act as such commissioner. Thompson, as we have seen, was elected for the term of two years to succeed Hendricks whose term had not then expired, and the contention is that his election was void, and that he had no right to serve as commissioner. The determination of this question involves a construction of chapter 163 of the Laws of 1890, and an adjudication as to the validity of the action of the town board on the Tth day of June, 1890, in declaring the offices of commissioners of excise vacant and the appointment of new commissioners. "We, however, have concluded to dispose of this case upon other grounds, and inasmuch as the terms of office of the old commissioners have now expired, there is no necessity, public or otherwise, for the determination of that question.

It appears, as we have seen, that Thompson had served as commissioner two years, one by appointment and one by election. It further appears that during this time Hendricks had not acted or offered to act as commissioner, until May 1, 1892. At the town meeting in 1891, at which Thompson was elected, Hendricks was present and advocated the election of Thompson, voted for him and asked others to vote for him. Hpon the trial Hendricks was sworn as a witness, and testified: “ I did not file my oath of office within the thirty days required by statute. I was advised by Mr. Todd that I had forfeited the office by my failure to take the oath. That Mr. Todd is the one that, as supervisor of the town of Cuba, called the town board together to nominate a board of excise. From that time until to-day I have .never known whether I was an excise commissioner of the town of Cuba or not. I have believed, and have stated that I was not an excise commissioner from that time on, from the time the new board was appointed by Mr. Todd. I have never granted any licenses. I have said repeatedly, when interrogated upon that subject, that I did not know whether I was excise commissioner or not, and so did not propose to act until I found out; I did not propose to get into any trouble. The time I said I met once as a board of excise, and Mr. Todd had to make a motion to adjourn, was in Mr. Straight’s office the first Monday in May, 1892.”

When a person comes into court asking for the enforcement, of a right, or the recovery of property, which he claims by virtue of an office, he must show that he is an officer de jure. If he only shows that he merely acts in the office,' or is an officer de faeto, it is not enough to support a recovery. (People v. Nostrand, 46 N. Y. 375-382; People v. Hopson, 1 Den. 574.)

But as to third persons or strangers, whose rights are dependent upon his official acts, it is sufficient for them to show that he was an officer de facto.

Chancellor Walworth, in People v. White (24 Wend. 539), says: An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment or election to that office; and as the duties of the office must be discharged by some one for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been properly elected or appointed, before they submit themselves to his authority, or call upon him to perform official acts which it is necessary should be performed.”

In Adams v. Tator (42 Hun, 384, 387), Landon, J., says: “ The general rule with respect to de facto officers is that the office is so far void as to prevent the officer from asserting it to his own advantage at the expense or to the injury of another, but is valid so far as to protect third parties from injury, in other words, void, as to himself, and valid as to strangers.” (Nichols v. MacLean, 101 N. Y. 526-538; Matter of Kendall, 85 id. 302; Weeks v. Ellis, 2 Barb. 320.)

It is said that there cannot be an officer de ju/re and another in the same office defacto at the same time. (Cronin v. Gundy, 16 Hun, 520-524.)

Perhaps not, for a defacto officer is one who is in possession of the office, discharging its duties, under color of an appointment or election, acting under such circumstances as to induce third persons or strangers to believe that he is the real and true officer. We are aware that in the case of Cronin v. Stoddard (97 N. Y. 271), a' remark appears to the effect that one who desires to enjoy the privileges afforded by the excise law must see to it that they are granted by one duly authorized. This remark was made in connection with the statement that the person alluded to “ had not even apparent authority or color of title to act as excise commissioner,” and was doubtless intended as applying to the circumstances of that case. It cannot be that it was intended to overrule the old and well-established rule protecting third parties, who in good faith have relied upon the action of a defacto officer, believing that he was an officer de jure. In that case the cle jure commissioner was in the possession of the office performing its duties, when the person who signed the license assumed to act as commissioner.

As we have seen, Thompson had acted as commissioner of excise for two years. Hendricks during that time had not acted as commissioner. Thompson in 1892 was acting under color of an election, he was in possession of the office recognized by Snyder, the de jure commissioner, as the proper commissioner; and if the defendant believed him to be such, and in good faith applied to the board for a license, obtained, the same and paid the fee required therefor, he is entitled to protection.

We think this question was raised hy the exceptions taken. After the evidence closed the defendant’s counsel insisted that he had the right to have the jury determine, that the people having elected Thompson as successor to Hendricks, based upon Hendricks’ refusal to act, that Thompson thereby had a legal right to issue licenses, in accordance with the law for the year 1892, and having so issued a license to the defendant, it is a protection against any charge contained in the indictment. The court thereupon held that the commissioners of excise of the town of Cuba, at the time the license in the case was granted to the defendant, were Hendricks and Snyder, and that the only question to go to the jury was as to whether there was a sale. The defendant’s counsel thereupon excepted to the ruling.

The court then proceeded to charge the jury, and in the charge stated that the license which was granted to the defendant to sell under was not granted by a legally constituted board of excise of the town of Cuba, and hence it affords no protection to him upon the indictment. An exception was taken by the defendant’s counsel to this charge.

The judgment and order appealed from should be reversed and a new trial granted, and for that purpose the case should be remitted to the Court of Sessions of Allegany county.

Dwight, P. J., Lewis and Maoomber, JJ., concurred.

Judgment and order of the Court of Sessions of Allegany county appealed from reversed, and a new trial granted, and for that purpose the case is remitted to that court.


author: Bradley, J.:

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    Philip Becker, Respondent, v. The Town of Cherry Creek, Appellant.

      Place of trial — action to recover the a/mount due upon town bonds issued in aid of a railroad.

    An action brought against a town to recover tbe amount due upon its town bonds, alleged to have been duly issued pursuant to tbe statute in aid of a railroad, is not an action to establish a lien on the real property of the town and for that reason a local action within the provision of section 899 of the Code of Civil Procedure which requires an action brought to establish a lien on real property to be tried in the county in which the subject of the action is situated:
    Appeal by the defendant, the town of Cherry Creek, from an order of the Supreme Court made at the Erie Special Term and entered in the office of the clerk of Erie county on the 13th day of December, 1892, denying the defendant’s motion to change the place of trial of the action from Erie county to Chautauqua county.
    The action was brought in Erie county. The defendant town is situate within the county of Chautauqua. The town bonds in suit were issued under chapter 907 of the Laws of 1869, entitled “ An act to amend an act entitled ‘ An act to authorize the formation of railroad corporations and regulate the same,’ passed April 2,1850, so as to permit municipal corporations to aid in the construction of railroads. After providing the manner in which the proceedings might be instituted, the act of 1869 directed certain notices to be given by the county judge, and then declared: “ It shall be the duty of the said judge, at the time and place named in the said notice, to proceed and take proof as to the said allegations in said petition, and, if it shall appear satisfactory to him, that the said petitioner, or the said petitioners and such other taxpayers of said town as may then and there appear before him and express a desire to join as petitioners in such petition, do represent a majority of the taxpayers of said municipal corporation as shown by the last preceding tax list or assessment roll, and do represent a majority of the taxable property upon said list or roll, he shall so adjudge and determine, and cause the same to be entered of record. And such judgment and the record thereof shall have the same force and effect as other judgments and records in Courts of Record in this State.”
    The complaint alleged that proceedings were duly instituted by petition and notice pursuant to statute, and that thereupon “ the county judge of Chautauqua county did determine and adjudge, that a majority of all the taxpayers of the town of Cherry Creek, taxed for and representing a majority of the taxable property upon said last assessment roll or tax list, who were taxed or assessed for property, not including those who were taxed for dogs or highway tax only upon the last preceding assessment roll or tax list of the town, had signed the petition or petitions aforesaid, which had been duly verified by one of said petitioners; that due notice had been given of application thereon to him to appoint commissioners for said town of Cherry Creek to issue the bonds of said town for $44,000, according to law.”

      “ That judgment to the effect aforesaid was duly entered in the clerk’s office in Chautauqua county, on the 15th day of July, 1872.”

      O. li. Lockwood, for the appellant.

      Adeibert Moot, for the respondent.
   Bradley, J.:

The action was brought to recover the amount due upon 131 town bonds of the defendant alleged to have been duly issued pur' suant to the statute in aid of the Buffalo and Jamestown' Railroad Company in the year 1874.

The defendant, by its answer, puts in issue the allegations of the complaint in support of the validity of the bonds and of the right of the plaintiff to recover upon them.

The motion to change the place of trial from Erie to Chautauqua county was founded upon the contention on the part of the defendant that it was a local action within the provisions of section 982 of the Code of’ Civil Procedure, which provides that certain actions must be tried in the county in which the subject of the action or some part thereof is situated, and after mentioning some actions it includes “every other action to recover or procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real.” It is urged that this action comes within that provision of the section, because by the statutory adjudication, if effectual and duly executed by the issue of town bonds, they became a charge upon the real property in the town. If they are such they became so when they were issued. The purpose of the action is to enforce the liability to pay which it is alleged the town assumed by the issue of the bonds pursuant to such adjudication. They, with a view to that purpose, are the subject of the action. It is an action at law to recover a sum of money upon a contract which the plaintiff alleges was duly entered into and by which the town undertook to pay the amount mentioned in the instruments known as its bonds. It is true that the trial may involve the consideration and determination of the question of the validity of the statutory adjudication pursuant to which the bonds were issued, and that if a recovery be had the amount of it, for the purposes of collection, will be chargeable upon the property, real and personal, in the town subject to taxation.

But the subject of the action is not the establishment of a lien upon real property, although the effect of a recovery by the plaintiff would be founded upon the fact that the bonds were such by force of the adjudication of 1872, and the judgment representing such recovery would be the means through which the performance of the undertaking to pay may be enforced.

The object of the statutory adjudication was consummated when the bonds were issued for the purpose in view, and in the present action it and the proceedings upon which it was founded, are facts bearing upon the question of authority to issue them, which authority sought to be conferred or created for that purpose was effectual or not so, to give validity to the bonds which are the subject of the action in the sense applicable to that term. (Knickerbocker Life Ins. Co. v. Clark, 22 Hun, 506; Hogg v. Mack, 53 id. 463.)

The only' question to be tried and determined upon the issues made by the pleadings is whether or not the bonds were pursuant to the statute duly issued as such and are valid obligations of the defendant, and the fact that the authority to issue them was dependent upon the preliminary proceedings, including the statutory adjudication, may within the issues be contested, is not important for the purposes of the question presented upon the motion.

The order should be affirmed.

Dwight, P. L, concurred; Lewis and Haight, JJ\, not sitting.

Order appealed from affirmed, with ten dollars costs and disbursements.


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    William A. Granger, Respondent, v. Thomas A. Smyth and Another, Appellants.

      Tempora/ry injunction —final determination that the plaintiff was not entitled, thereto — ascertainment of the defendant’s da/mages.

    When a temporary injunction has been granted upon the complaint, and issue is joined upon an answer denying the allegations of the complaint and setting up a counterclaim, and the case is referred, and on the day appointed for the trial the parties appear by their attorneys, and, the plaintiff offering no evidence, the defendant produces testimony sustaining his counterclaim, and the referee thereupon makes a report upon which judgment is entered dismissing the complaint, such judgment is a final determination that the plaintiff was not entitled to the temporary injunction and entitles the defendant to an ascertainment of the damages sustained by him by reason of the injunction, under section 6S3 of the Code of Civil Procedure.
    Appeal by the defendants, Thomas A. Sniyth and William J. Smyth, from an order of the Supreme Court, made at the Monroe Special Term, and entered in the office of the clerk of Monroe county on the 7th day of April, 1893, denying a motion to confirm the report of a referee appointed to ascertain the damages sustained by the defendants by reason of a temporary injunction issued in the action.

      Richard Van Voorhis, for the appellants.

      John M. Mwrphy, for the respondent.
   Haight, J.:

This action was brought to dissolve a copartnership and for an accounting. The plaintiff asked for a temporary injunction restraining the defendants from collecting,. receiving or in any manner interfering or meddling with or disposing of the partnership debts, moneys, notes or other property, and that a receiver be appointed. A temporary injunction was issued upon the complaint and the affidavit of the plaintiff verifying the matters alleged therein which was served .with the summons and complaint. The defendants answered, putting in issue the allegations of the complaint upon which the plaintiff’s right of action depended, setting up a counterclaim. Upon a stipulation of the parties the case was referred to a referee to hear, try and determine. Upon the day appointed for the trial before the referee the parties appeared by their. attorneys, but the attorney for the plaintiff submitted no evidence in support of the allegations of his complaint. The defendants produced testimony sustaining their counterclaim, and thereupon the referee made his report upon which judgment was entered dismissing the plaintiff’s complaint and awarding judgment in favor of the defendants for the amount of their counterclaim. Thereafter upon the motion of the defendants an order of reference was made to ascertain the damages sustained by them by reason of the temporary injunction. A hearing was had before the referee, who made his report to the effect that the defendants had suffered damages in the sum of $173. A motion was thereupon made at the Monroe Special Term to confirm the report, and it was thereupon ordered that the motion to confirm said report be, and the same is hereby, denied upon the ground that it does not appear from the judgment in the action that the court has decided that the plaintiff was not entitled to such injunction order and, therefore, the defendants are not in a position to demand any damages by reason of such an injunction order.” From this order the defendants appeal to this court.

It has been held that where the parties voluntarily settle the action, or where the same has been discontinued upon the application of the plaintiff, or where the same has abated on account of the death of a party, an order of reference will not issue to ascertain the damages sustained by reason of the injunction under section 623 of the Code of Civil Procedure, for the reason that the court has not finally decided that the plaintiff was not entitled thereto under the provisions of section 620. (Palmer v. Foley, 71 N. Y. 106-111; Hall v. Sexton, 19 N. Y. St. Repr. 677; S. C., 3 N. Y. Supp. 549; Johnson v. Elwood, 82 N. Y. 362; The N. Y., W. S. & B. R. Co. v. Omerod, 29 Hun, 274.)

But in the case of The Pacific Mail Steamship Company v. Toel (85 N. Y. 646), it was held that where a plaintiff who has obtained a preliminary injunction, after it has been seiwed, enters an order vacating it, and subsequently, without. the consent of the defendant, obtained an ex pa/rte order discontinuing the action, these orders are equivalent to a determination that the plaintiff was not entitled to the injunction and defendant is entitled to an order of reference to ascertain his damages by reason thereof. In Amberg v. Kramer (8 N. Y. Supp. 821), it was held by the first department, that where a temporary injunction had been vacated upon the application of the defendant, the plaintiff consenting thereto and the action having been discontinued by the plaintiff, that there had been a determination that the plaintiff was not entitled to the injunction and that the defendant was entitled to his order of reference. And in Manufacturers & Traders' Bank v. Folk (21 N. Y. Supp. 806; 50 N. Y. St. Repr. 802), it was also held by the first department, that where the temporary injunction is granted upon the complaint, that the plaintiff’s right thereto depends upon the establishment judicially of the facts pleaded and the dismissal of the action for want of prosecution is a final decision within the provisions of the Code. (See, also, Weeks v. Southwick, 12 How. Pr. 170; Taaks v. Schmidt, 19 id. 413; Cunningham v. White, 45 id. 486; Carpenter v. Wright, 4 Bosw. 655.)

In the case of Benedict v. Benedict (15 Hun, 305; affd., 76 N. Y. 600), the action was brought to compel a specific performance of a verbal agreement to convey real estate, and a temporary injunction was obtained restraining the defendant from incumbering the place or Collecting rents thereon pending the trial. Upon the trial the referee decided that the agreement was void, but held that the plaintiff had a vendor’s lien upon the land, which he directed to be foreclosed and ordered a sale as in case of a mortgage, making no reference or direction as to the injunction. In that ease it was held that the judgment did not determine .that the plaintiff was not entitled to the injunction. This, however, was made upon the ground that the judgment was really a determination in favor of the plaintiff and is not in conflict with the cases above cited.

Upon the case under consideration as we have seen, there has been a judgment entered after trial, dismissing the plaintiff’s complaint. This is a final determination that the plaintiff had no cause of action. If he had no cause of action he had no right to a temporary injunction. It follows that the judgment is a final determination by the court that the plaintiff was not entitled to the injunction within the meaning of the provisions of the Code referred to.

The order of the Special Term should be reversed, with ten dollars costs and disbursements, and the motion granted.

Lewis and Brad let, JJ., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to confirm the report of the referee granted.


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    Atlas Furniture Company, Respondent, v. George P. Freeman and John W. Chesebro, Appellants.

      Attachment on the ground, that the defendant is about to assign his property with intent to defraud creditors — false statement of solvency — threat to make an assignment pi'ef erring other creditors.

    A warrant of attachment against property will not be issued upon a mere suspicion ; the intent to do the wrongful act, relied on as the ground of the attachment, must appear from the facts disclosed by the affidavit.
    The making, even dishonestly, of a false statement of solvency by a debtor to a creditor, upon which an extension of credit is obtained, followed by a threat to make an assignment preferring other creditors, is not proof that the defendant is about to assign his property with a fraudulent intent.
    Nor is a threat to make an assignment, giving preferences to other creditors, which would cover all the debtor’s property, made proof of the fraudulent ' intent by reason of the statutory limitation upon the payment of preferred claims under assignments.
    The affidavit for an attachment stated' in effect, that on a certain date the defendants, who were partners, being then indebted to the plaintiff, falsely stated that they were solvent, making money and able to pay theij; debts if time was given; upon this statement they obtained from the plaintiff an extension of credit; one month thereafter they wrote to the plaintiff announcing their insolvency and inability to pay their debts in full; when questioned in reference to their prior statement of solvency, one of the defendants stated that they had not at that time completed their inventory and did not know how their matters stood, and said further that if the plaintiff undertook to collect its claim by suit it would get substantially nothing, for they would make an assignment preferring the claim of their landlord for rent. A warrant of attachment was issued, upon the ground that the defendants were about to assign, dispose of or secrete their property with intent to defraud their creditors.
    Meld, that the affidavit was insufficient and that the attachment must be vacated. Anthony v. Btype (19 Hun, 265), distinguished.
    Appeal by tbe defendants, George P. Freeman and John W. Cbesebro, from an order made at a Special Term of tbe Supreme Oourt, and entered in tbe office of the clerk of Ohautauqua county on tbe 14th day of April, 1893, denying tbe defendants’ motion to vacate an attachment.

      F. A. Burnham and Morris Morey, for tbe appellants.

      A. O. Wade, for tbe respondent.
   Haight, J.:

The affidavit upon which the warrant was issued shows that the plaintiff was located in Jamestown, N. Y., and the defendants in the city of New York; that the defendants were indebted to the plaintiff in the sum of $1,715 ; that upon the tenth day of February a payment was made thereon, reducing the same to the sum of $1,433.29; that for that sum, notes of the defendants were accepted and an extension of time given‘for the payment thereof upon the representation as stated in the affidavit that the defendants were perfectly solvent and able to pay their debts; that they had taken an inventory which showed that their business had been profitable and they had been making money, and that if they could secure the further time in which to pay their indebtedness it would be a great accommodation to them. Thereafter and on the 9th day of March, 1893, the defendants wrote the plaintiff as follows : “ On completing our inventory we find that we have lost a considerable sum of money during the past year, due in a great measure to the enormous expense of the building which we have been occupying. The rent provided for in the lease of this building amounted to $5,400 a year and the lease has four years to run from the first of May. With this lease on our hands we should be immediately compelled fro suspend and to turn our property over to an assignee for division among our creditors. We have, however, after considerable difficulty, convinced the landlord of the premises that it is for his best interest to cancel this lease and to terminate it on the first of May next. Rut our losses have been so great that even this relief will not place us in a position to meet our obligations in full. Our Mr. Freeman started west on the 7th inst., to confer with our largest creditors, and we hope within a very few days to submit to you and the rest of our creditors a proposition of compromise which will be acceptable to you. In the meantime rest assured that our only desire will be to protect the interests of all our creditors and that no one will be permitted to gain an advantage over another.”

Upon the receipt of this letter, the secretary of the plaintiff visited New York, and on the fifteenth day of March called upon the defendants and saw the defendant Chesebro, and was informed by him that the defendant Freeman had gone west; that they had been losing money for quite a long time; that they had their inventory completed, and that they could not pay to exceed forty cents on the dollar on their indebtedness; that Freeman was out trying to get a compromise with their creditors, and on being asked by the secretary of the plaintiff why they had informed him on the tenth of February that their inventory was completed and that they were doing a prosperous business, he replied that they did not then have it completed, and that they did not then know just how their matters did stand. The defendant Chesebro further stated “ That if the plaintiff undertook to collect its claim by suit, it would get substantially nothing on it, for if the plaintiff commenced suit, the defendants would make an assignment preferring their landlord, and the plaintiff would get nothing.” He also stated “ That his partner, Freeman, when he left home, had left with him, said defendant Chesebro, a power of attorney authorizing him to make such a general assignment in behalf of the firm at any time, if he, Freeman, should telegraph him to do so.” He further stated in substance That the plaintiff had better keep still and do nothing, as it would get nothing if it attempted to enforce the collection of its claim.”

The warrant of attachment was issued upon the ground that the defendants were about to assign, dispose of or secrete their property with the intent to defraud their creditors.

Does the matter stated in the affidavit show such intent? We think not. It may, perhaps, be sufficient to create a suspicion that such disposition of their property was intended, but a warrant of attachment will not issue upon a mere suspicion. The intent to do the wrongful act must appear from the facts disclosed by the affidavit. (Thompson v. Dater, 57 Hun, 316.)

On the tenth of February, the defendants falsely stated that they were solvent, making money and were able to pay their debts if time was given. Upon this statement, they obtained from the plaintiff an extension of credit. One month thereafter, they wrote the plaintiff announcing their insolvency and their inability to' pay their debts in full. When questioned in reference to their statement of February tenth, the defendant Chesebro stated that they had not at that time completed their inventory, and did not then know how their matters stood. The defendants, in making the representations upon which an extension of time was procured, may have been dishonest and they may not. Possibly, they at that time supposed themselves solvent and able to pay. But whether the representations were made innocently or dishonestly is unimportant, for in either case they do not establish a fraudulent intent to assign, dispose of or secrete their property. (Johnson v. Buckel, 65 Hun, 601; Kibbe v. Herman, 51 id. 438; Fleitmann v. Sickle, 13 N. Y. St. Repr. 399.)

The further facts disclosed by the affidavit are in substance that if the plaintiff undertook to collect its claim by suit that it would get substantially nothing, for the defendants would make an assignment preferring the claim of their landlord. This they had the right to do; and the doing of that which is lawful is not fraudulent. (Farwell v. Furniss, 67 How. Pr. 188; Hallenbeck v. Coenen, 34 N. Y. St. Repr. 689; Stamp v. Herpich, 8 id. 446; Evans v. Warner, 21 Hun, 574.)

But it is claimed that the false representations made by the defendants in order to procure an extension of time within which to pay the plaintiff’s claim characterizes the threats subsequently made that they would make an assignment and indicated a fraudulent intent. Such representations were made in the case of Stamp v. Herpich (supra). But, notwithstanding, it was held that the threat to make an assignment with preference to others was not fraudulent under the law.

Again, it is claimed that under the statute as it now stands a preference cannot be made of all of the assignor’s property. Yery true, claims cannot be preferred to a greater extent than one-third, of the assigned assets after paying the expenses of the assignment and the wages and salaries due employees. But the statute limiting-the amount to be paid on preferences is addressed to the assignee, and prevents him from paying more than that portion of the assets upon, the preferred claims. And it is not apparent how this provision changes the effect of the threat that was made to make an assignment.

The case of Anthony v. Stype (19 Hun, 265), is distinguishable. In that case the affidavits upon which the warrant was issued showed that he kept his store open, continued to dispose of his goods and to appropriate the proceeds thereof to other purposes than to the payment of his debts, refusing to pay anything either in goods or money to his creditors.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the attachment granted.

Lewis and Bradley, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate the attachment granted.


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    Homer Knapp, Respondent, v. Leo J. Hall, Appellant.

      Building restrictions attached to land — notice of, to a purchaser under an uwre• striated deed.

    To entitle a purchaser of a city lot under a deed containing building restrictions to enforce the same restrictions against the purchaser of an adjoining lot from the same original common grantor under a deed containing no restrictions, on the ground that the defendant had notice that the restrictions were imposed by the original common grantor upon' all the lots in the tract, it is not enough for the plaintiff to show that the original common grantor stated and represented to each purchaser of lots in the tract that all the lots would be sold subject to such restrictions and that the defendant knew that prior purchasers of lots had taken them subject to such restrictions, but the plaintiff must also show that the defendant knew that at the time the plaintiff purchased his lot he was induced to make such purchase under the representations of the grantor that the same restrictions were to be extended to the lot purchased by the defendant.
    The purchaser of a lot under a deed containing no building restrictions is not required to look up the original purchasers of the other lots in the same tract from the original common grantor, and learn from them what oral representations were made to them to induce them to purchase, or, on failure so to do, be deemed affected with notice of, and subjected to, restrictions upon the use of his premises based upon such oral representations.
    Appeal by the defendant, Leo J. Hall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Monroe county on the 19th day of August, 1892, on a decision of the court rendered upon a trial at the Monroe equity term.

      Theodore Bacon, for the appellant.

      John F. Dor thy, for the respondent.
   Haight, J.:

This action was brought to enjoin the defendant from building a house within fifteen feet of the street line.

. In 1887 Fred. S. Mings and Cass ‘Williams were the owners of a parcel of land in the city of Rochester known as the Beechwood 'tract, which they caused to be surveyed and mapped dividing it into 117 city lots. The lots were then placed upon the market, and the firm of Culver & Crane, real estate agents, was employed to conduct the sale. This firm sold a number of the lots subject to the following conditions : That the building or dwelling house to be erected on said lot shall stand not less than fifteen feet back from the front of said lot and from the line of said avenue, and shall not be of less value than $1,500, and the main part to be two full stories high, and the barn and other buildings or structures appurtenant to such building or buildings shall be put on the rear portion of said lot; * * * that no wines, spirituous or malt liquors shall be made, manufactured, kept for sale or sold on said premises for a profit or otherwise.” On the 5th day of October, 1888, one James Marden purchased four lots, including lot No. 77, subject to the conditions and restrictions aforesaid, which last-mentioned lot he conveyed to the plaintiff on the 18th day of December, 1890. On the 10th day of April, 1891, the defendant purchased adjoining lots, Nos. 76 and 78, without conditions or restrictions of any kind, and commenced to build thereon, within fifteen feet of the street line.

The trial court found as facts, that the defendant, before he purchased lots 77 and 78, had knowledge and notice that the covenants and restrictions mentioned had been imposed by the grantors upon all the lots of the tract lying west of Chamberlain street. An exception has been taken to this finding, and the only question which we shall consider is, as to whether it is against the weight of evidence.

The conditions and restrictions mentioned were inserted in the deeds of the purchasers of lots in this tract, but there is nothing in their deeds as to any covenant or agreement on the part of the grantors that the other lots in the tract shall only be sold upon like conditions and restrictions. We shall assume, however, that to each purchaser the agents of the grantors stated’and represented that all of the lots would be sold subject to the conditions and restrictions named. We .shall also assume that the defendant knew that prior purchasers of lots had taken them subject to these conditions and restrictions. This, however, is not enough to entitle the plaintiff to maintain his action. He must show that the defendant also knew that at the time the plaintiff purchased his lot he was induced to make' such purchase under the representations of the grantors or their agents that the same conditions and restrictions were to be extended to the lots purchased by the defendant. Has this fact been established ? As we have seen, there is nothing in the deeds or in the records thereof that show that such representations were made. The plaintiff testified to an admission on the part-of the defendant to the effect that he knew of the restrictions on the Beechwood tract before he purchased, that he paid a big price for the lots and proposed to utilize them as he saw fit, or to his own personal advantage. The defendant did not, however, admit that he knew that the conditions and restrictions covered all of the lots of the tract, including those pru’chased by himself. On the other hand, he testified that he did not know that there were any restrictions upon the lots purchased by him; that he inquired of Mings, the grantor, and was informed that there were not; that he also inquired of the grantors’ attorneys who had drawn the deeds conveying the lots in the tract, and was informed that they were all right; that he had the title examined by attorneys, and received a like report. Mings testified that shortly after the tract had been surveyed and put in the hands of Oulver & Crane to sell, and before any of the lots had been sold, he withdrew from the agents lots 77, 78, 115 and 116, and informed them that these lots were to be withdrawn from the market, and were to be reserved for business purposes; that lots 115 and 116 are separated from lots 77 and 78 by Ohambejlain street; that in 1887 lots 115 and 116 were sold to the Rochester and Grlen Haven Railroad Company, without restrictions, which company has constructed a depot thereon; and, that as he understood it, it was generally known that no restrictions were to be placed upon lots 77 and 78. Williams, the other grantor, also testified to the withdrawing of these lots, that they were to be reserved for business purposes, and were not to be restricted. Their testimony is corroborated by other witnesses.

The trial judge, in his opinion, says, that when Mings and Williams reserved these lots, nothing “ was said as to their exemption from such restrictions, and it seems that Culver & Crane continued thereafter to assure purchasers, and in one instance at least in Mr. Mings’ presence, that these restrictions covered the entire tract.” Assume this to be so; but where is the evidence that the defendant knew of such representations ?

Again, the trial judge says: But the most conclusive evidence upon this point is defendant’s own admission, upon his cross-examination, that when he purchased lots YY and Y8 he knew that all the other lots had been sold subject to restrictions.” Tery true. He knew this, but, as he testified, he did not know that they purchased under the representation that the restrictions should also cover the lots that he purchased.

The trial judge further states: “ "With this information in his possession, the duty was certainly imposed upon the defendant of ascertaining whether or not the restrictions which applied to the other lots, in any manner affected those he was negotiating for.” He did inquire. He inquired of the grantors, and of the attorneys who had done the conveyancing upon the tract for the grantors; he had the records searched, and attorneys pass upon the title. But it is said: “ He appears to have scrupulously avoided making any inquiries of parties who were in a position to know the precise situation of affairs.” Did not the grantors know the precise situation of affairs ? They were the parties who had exacted the conditions, and imposed the restrictions. And again: “ Had he spoken to the owners of adjoining lots, he might easily and speedily have ascertained that they had made their purchases upon assurance that all the lots were to be restricted alike, and his omission of this plain duty, it seems to me, establishes such negligence on his part as cannot be attributed to an ordinarily prudent man, and consequently charges him with the knowledge he ought to have possessed.” The present owners would have known nothing of the oral representations made by Mings and Williams to induce purchasers to take the lots unless they were the original purchasers. It follows, therefore, that it was the duty of the defendant to look up the original purchasers of the Jots and get their version as to what oral representations were made to them to induce them to purchase ; that failing in this, he must have conditions and restrictions imposed upon the use of his premises.

This case was once considered by this court upon an appeal from an order denying the defendant’s motion to vacate and set aside an injunction pendente lite. (43 N. Y. St. Pepr. 95.)

Lewis, J., in delivering the opinion of the court, says: “ If the rights and interests of the appellant to the lands which he holds under a deed containing upon its face no restrictions, are to have easements or servitudes imposed upon them by the parol declarations and promises made to others by his grantors, the proceedings should not be based upon shadowy and uncertain evidence.” And yet the trial court has found that beeause the defendant neglected to look up the original purchasers and to question them as to what oral representations were made, that he is chargeable with knowledge that such representations were made. We think this is going too far. It would practically nullify the recording act and would permit titles to lands to be defeated if the purchaser neglects to inform himself as to the oral understandings of his neighbors. A purchaser of lands is chargeable with notice of facts affecting the title which could be discovered by an examination of the deeds or other muniments of title, and where there is an outstanding mortgage or lien unrecorded and he has had notice of its existence, it becomes his duty to inquire and ascertain the extent of the rights of the person holding the same. (Williamson v. Brown, 15 N. Y. 354; The Cambridge Valley Bank v. Delano, 48 id. 326; Ellis v. Horrmam, 90 id. 466.)

But these cases do not go to the extent of sustaining the respondent’s claim.

It appears to us that the defendant, made all of the inquiry usually made by prudent men, and that the finding that he knew that the sales made to the plaintiff and other purchasers were made under the oral representations that the conditions and restrictions named should cover all of the lots in the tract, including those purchased by him is against the weight of evidence.

Judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Judgment appealed from reversed and new trial granted, costs to abide the final award of costs.


author: Lewis, J.:

text:
    Timothy Sheehan, Respondent, v. Albert H. Pierce, Appellant.

      Slcmder — countercharge of slander.

    In an action for slander, in which, the complaint alleged that on a certain occasion, in the presence of a third party named, the defendant, in words addressed to the plaintiff, maliciously accused the plaintiff of stealing wood and of being a thief, the defendant set up in his answer by way of counterclaim, that on the same occasion and in the presence of the same person as stated in the complaint, and in the course of the same conversation on which the plaintiff’s cause of action was founded, the plaintiff maliciously charged the defendant with being a wood thief and stealing the plaintiff’s wood.

      Eeld, that the slander pleaded by the defendant as a counterclaim could not be said to have arisen out of the “transaction” set forth in the complaint as the foundation of the plaintiff’s cause of action, within the meaning of section 501 of the Code of Civil Procedure, and, therefore, did not constitute ^ counterclaim.
    Appeal by tbe defendant, Albert H. Pierce, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Niagara county on the 3d day of January, 1893, sustaining the plaintiff’s demurrer to the counterclaim set forth in the defendant’s answer, and from the order on which the judgment was entered.

      George P. Judson, for the appellant.

      P. F. King, for the respondent.
   Lewis, J.:

The action is for slander. It is alleged in the plaintiff’s complaint that on or about the 3d day of January, 1892, the defendant in the presence of one Harriet Pierce, maliciously accused the plaintiff of stealing wood from the defendant and of being a thief. It is charged in the complaint that the words were addressed to the plaintiff personally. The defendant in the fifth count of his answer sets up by way of counterclaim to the plaintiff’s cause of action, that on the occasion referred to in the plantiff’s. complaint, the plaintiff was upon the defendant’s premises engaged in removing therefrom wood belonging to the defendant, without his consent. That the plaintiff knew that it was defendant’s wood, and that he had no right to remove the- same; that defendant ordered him to desist from moving the wood; whereupon the plaintiff maliciously charged the defendant with being a wood thief and stealing plaintiff’s wood. It was further alleged that the cause of action against the plaintiff in favor of the defendant consisted of the same facts and circumstances and conversation and subject-matter upon which plaintiff based his cause of action, and none other, and arose out of the same transaction set forth in the plaintiff’s complaint as the foundation of the plaintiff’s cause of action, and occurred at one and the same time and place, in the presence of the same persons and in one connected and uninterrupted conversation. Plaintiff demurred to the counterclaim on the ground that it is not of the character specified in section 501 of the Code of Civil Procedure; is not a cause of action arising out of the transaction and claim set forth in the complaint herein as the foundation of the plaintiff’s claim, and is not connected with the subject of the action herein.” The demurrer was sustained.

It is provided in sections 500 and 501 of the Code of Civil Procedure, that the defendant may set up in his answer any new matter constituting a defense or counterclaim which tends in some way to diminish or defeat the plaintiff’s recovery; if the cause of action set up as a counterclaim arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or is connected with the subject of the action. The purpose of these sections is to facilitate the disposition of controversies between parties, and to try them in one action.

“ The theory and policy of the statute providing for the disposition of controversies by actions, is that the rights of all the parties to an action, as between the plaintiff and all or any of the defendants, and as between the defendants themselves, shall be adjusted and declared by the judgment when the relation between them and the subjects involved are such as to permit it to be done within the practice prescribed.” (Met. Trust Co. v. Tonawanda R. R. Co., 43 Hun, 526.)

It has been the policy-of the law in recent times to allow parties to bring into a single action, so far as it can conveniently be done, all the controversies between them for final and complete adjustment. The Statute of -Set-off and the doctrine of recoupment have been from time to time extended and enlarged in view of this policy. The Statute of Counterclaim is a still further advance in the same direction, and should be liberally construed to accomplish the benign object of its enactment.” (More v. Rand et al., 60 N. Y. 208, 214.)

Here are counter-charges of slander. The plaintiff by demurring admits that on the occasion referred to in his complaint, and as a part of the conversation in which he claims the slanderous words were uttered by the defendant, he slandered the defendant. The matters in difference between the parties can obviously be tried in one action without any practical difficulty. Each party will be entitled upon the trial to prove everything that occurred on the occasion which preceded and led up to the uttering of the alleged slanderous words as part of the res gestee. But did the defendant’s cause of action arise qut of the transaction set forth in the complaint as the foundation of the plaintiff’s claim ? The plaintiff contends that his cause of action was complete when the defendant had finished uttering the alleged slanderous words in the presence and hearing of his wife. He further contends that the counterclaim is based upon the words spoken by the plaintiff to the defendant in the hearing of the same persons after his cause of action arose. That different reputations were involved; that, therefore, the two causes of action cannot be said to have arisen out of the same transaction. The defendant contends that the conversation in its entirety was a transaction, and that out of it his cause of action against the plaintiff arose. He claims that the word “ transaction,” as used in the Code, has a broader signification than that contended for by the plaintiff, and should be held to mean the whole connected and uninterrupted conversation between the parties on the particular occasion out of which they each claim to derive their respective causes of action, and everything that arose and came out of the conversation.

A transaction is defined by Worcester as the act of transacting or conducting any business, negotiation, management, a proceeding; and by Webster as that which is done, an affair. In ordinary language we would not speak of an assault, false imprisonment or slander as a transaction. The act of making a contract would be called a transaction. The word ordinarily implies mutuality, something done by .parties each taking a part therein. It must be held to mean something different from the word “ contract,” for both words are used, “ arising out of the contract or transaction.” While a contract may be a transaction it does not follow that a transaction is necessarily a contract.

We are not’referred by the counsel to any adjudications upon the precise point here presented. This subdivision has, however, been considered in a number of cases by the courts of our State, where the facts were somewhat similar to those presented here. In Heigle v. Willis (50 Hun, 588), plaintiff alleged that the defendant negligently drove his wagon against that of the plaintiff, to his damage, etc. The answer set up a counterclaim for injuries caused to the defendant’s person and wagon through the alleged negligence of the plaintiff in the' same collision. The General Term in this department held, Dwight, P. J., writing the opinion, that the defendant’s counterclaim arose out of the same transaction set forth in the complaint as the the foundation of the plaintiff’s action, thereby holding that the collision between the two wagons driven respectively by the plaintiff and defendant was a transaction in respect to which the plaintiff alleged negligence on the part of the defendant and damages to himself, and the defendant vice verscfr. But one of the parties in that case was entitled to recover; if both were guilty of negligence contributing to the collision neither could recover. Each alleged that the negligence of the other caused the collision, and. that he was free from negligence. In the case at bar each party alleges that the other, and on the same occasion, slandered his character.

In Xenia Bank v. Lee (7 Abb. Pr. 373), Judge Woodruff, in a very instructive opinion in the General Term of the Superior Court of New York, gives construction to this subdivision of section 501. That was an action for trover brought to recover the value of notes or bills of exchange which had been indorsed by the plaintiff, and which, it was claimed, the defendant had converted. The defendant set up, by way of counterclaim, title in himself to the same notes or bills of exchange, and asked judgment for their amount against the plaintiff as indorser thereon. Judge Woodruff says : “ The transaction here in question may either include the history of the bills of exchange in question, so far as the title of the plaintiffs or defendants depends upon that history, or the transaction may perhaps be confined to the manner and circumstances of the . transfer to the defendants. * * * The difference between the parties consists not in the denial by the defendants that the transaction relied upon by the plaintiffs took place, but both admit and in fact assert that it occurred. One of the pai’ties connects with it certain particulars which, if established, establish the plaintiffs’ right to recover the bills or their value. The other connects with the transaction certain other particulars which, if established, not only refute the plaintiffs’ claim, but establish the defendants’ right to recover from the plaintiffs the amount of the bills. The parties differ about the accessory facts only, and when upon the trial the very truth of the matter is ascertained, the actual transaction which the plaintiffs set forth as the foundation of their claim, and which the defendants set forth as that out of which their claim arises will be developed, and one or the other will be seen to be by reason of that transaction entitled (to recover). The transaction is then single and entire, and it is either a just foundation of the plaintiffs’ claim or it entitles the defendants to what they claim from the plaintiffs.” The counterclaim was held to be well pleaded.

Lamming v. Galusha (47 N. Y. St. Repr. 831), was an action against the defendant for maintaining a nuisance in constructing and operating a steam railroad in a public highway without authority. The action was brought by the owner of lands injuriously affected by the road, and whose property rights were invaded thereby. Plaintiff demanded relief by way of injunction and special damages to his property occasioned by said nuisance. He joined in the same action a claim for damages for a personal injury sustained from the operating of the road, by his being thrown from his wagon while driving along the highway on which the railroad was constructed, in consequence of his horse being frightened by the noise of a passing engine and train. The Court of Appeals held that the cause of action arose out of the same transaction or transactions connected with the same subject of action within the meaning of subdivision 9, section 484 of the Code, and that they were properly united in one action. A cause of action arising out of a tort may be pleaded as a counterclaim to a cause of action for a tort. (Carpenter v. The Manhattan Life Ins. Co., 93 N. Y. 552.) It was held otherwise by a Special Term in Schnaderbeck v. Worth (8 Abb. Pr. 37).

The commissioners on practice and pleadings in their report to the Legislature in 1849, in a note to subdivision 1 of section 646 of the Code of Civil Procedure, which is in the exact language of subdivision 1 of section 501 of the present Code of Civil Procedure, say:

“ It is the intention of the Code that the whole controversy between the parties should be settled in one action and that either plaintiff or defendant should have such relief as the nature of the case requires.” It is as easy to do this as it is to decide upon what was considered a mere equitable defense to a legal demand, and there is .no difficulty in either.

Montgomery H. Throop in a note on counterclaim, which can be found at page 212, volume 3, New York Oivil Procedure Reports, has collected a number of cases giving construction to this subject. Similar provisions have been construed by the courts of sister States. (Shelly v. Van Arsdoll, 23 Ind. 513; Lovejoy v. Robinson, 8 id. 399; Ritchie v. Haywood, 71 Mo. 560; 3 Deering’s Annotated Codes and Statutes of California, 139.)

We incline to the opinion that the slander pleaded by the defendant as a counterclaim cannot be said to have arisen out of the transaction which is set forth in the complaint as the foundation- of the plaintiff’s cause of action within the meaning of the sections of the Code referred to.

The interlocutory judgment appealed from should be affirmed, with costs.

Dwight,‘P. J., Macomber and Haight, JJ., concurred.

Interlocutory judgment appealed from affirmed, with costs.