text:
    Katharine Bartow and Others, Appellants, v. Jonathan Sidway and Others, Respondents.

      Presumption of the continuance of an agency — a son, as the business agent of his mother — convey anee by the mother to the sorts wife —agreement for the support of the mother (luring life — exclusion of evidence of an account, under section 531 of the Code of Civil Procedure.

    An individual who is shown to have acted as agent for another during a long series of years in business transactions may be presumed, in certain instances, as to transactions with others, to continue his agency, but such presumption will not continue as to transactions between the principal and the agent or his wife.
    In an action brought by the daughter and executrix of a deceased mother to set aside conveyances made by the mother in her lifetime to her daughter-in-law, her son’s wife, of property for which the daughter-in-law had theretofore received sheriff's deeds upon execution sales on judgments against the mother, it was claimed by the plaintiff that the son was his mother’s trusted agent, and that as such agent he hid in the several parcels of land at the sheiiff’s sales in the name of his wife, who took title thereto under such bids, and that under the circumstances the wife must be deemed to hold the title in trust for the mother. It appeared, however, that an agreement had been made between the mother and her son and daughter-in-law, by which the latter was to support and maintain the mother and another of her sons during their lives, and that this agreement had been performed by the daughter-in-law.
    ■ Held, that in the making of this agreement the son was not acting as agent for his mother;
    That the agreement constituted a good consideration for the conveyances by the mother to the son’s wife;
    That the contract was a fair and just one;
    That there was no deception or undue influence practiced upon the mother to induce her to make the conveyances ; and that she was capable of understanding the nature and import of the transaction.
    To entitle a party to avail himself, on the trial of an action, of the right to demand the exclusion of evidence of an account set up by the other party in his pleading, on the ground that a bill of particulars has not been furnished, he must not only have made a demand for such bill of particulars, hut an order must have been previously obtained, as prescribed by section 531 of the Code of Civil Procedure, on the refusal of the demand for the items of the account.
    Appeal by the plaintiffs, Katharine Bartow and. others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of Erie county on the 25th day of January, 1893, upon a decision rendered after a trial by the court at the Erie equity term, dismissing the complaint upon the merits.

      Leroy Parker, for the appellants.

      Adelbert Moot and James O. Beecher, for the respondents.
   Haight, J.:

This action was brought to set aside certain transfers of property made by one Aurelia Bemis to Katharine R. Bemis, her daughter-in-law, and for an accounting.

The plaintiff Katharine Bartow is a daughter of Aurelia Bemis and the executrix of her last will and testament, which was executed in the year 1847, discovered in 1890, and shortly thereafter admitted to probate. Aurelia Bemis had two sons, named Asaph and Elijah St. John Bemis. Katharine R. Bemis was the wife of Asaph Bemis, and a sister of the defendants Jonathan and Franklin Sid-way, who are her only heirs at law. Aurelia Bemis, the mother, Asaj)h Bemis, the son, and Katharine R. Bemis, his wife, died before the commencement of this action. Formerly Aurelia Bemis was the owner of a tract of land in the city of Buffalo, being a part of outer lot 93, commencing 173f feet from the intersection of Michigan and Seneca streets on the south side of Seneca ’ street, and being eiglity-two and one-half feet in width on Seneca street, extending southerly to the Little Buffalo creek, a distance of nearly 1,000 feet. She also, in 185 2, purchased a house and lot on Franklin street, known as No. 147. At the time of the purchase the Franklin street property was incumbered by a mortgage, executed by David Burt to Benjamin Fitch, July 15, 1841,. for $6,200. This mortgage was assigned by Fitch to Seth Grosvenor, July 15,1841, and by Grosvenor and Seth G. Babcock to Henry W. Burt, June 3, 1859, at which time there remained unpaid thereon the sum of $3,600. It was again assigned by Burt to Katharine Bartow, the plaintiff, July 21, 1859, reciting-the balance unpaid as $3,604.42.

July 9,1859, the International Bank of Buffalo recovered a judgment for the sum of $1,007.36, against Asaph Bemis and Aurelia Bemis, in the Superior Court of Buffalo, upon a note given by Asaph Bemis to Aurelia Bemis, and by her transferred to that bank. August 16, 1860, the sheriff sold the Franklin street property upon an execution issued upon that judgment to Merwin S. Hawley, and issued a certificate of sale to him. March 23,1864, Hawley assigned the certificate of sale to Katharine R. Bemis, and July 10, 1879, G. A. Scroggs, the sheriff, executed and delivered to her a sheriff’s deed of such property under the foregoing sale.

September 7,1878, George W. Tifft recovered a judgment against Aurelia Bemis, in the Erie County Court, for $912.88, on which judgment the sheriff sold, July 27, 1879, the Franklin street property, and also the property lying between Carrol and Exchange streets, and issued a certificate of such sale to George W. Tifft, who thereafter assigned the same to Katharine R. Bemis, and February 17, 1881, Joseph II. ITaberstro, as sheriff, executed and delivered to Katharine R. -Bemis a deed of such premises under the foregoing sale. September 22,1878, Aurelia Bemis, by a warranty deed, conveyed to Katharine R. Bemis the entire land owned by her, lying between Carrol and Exchange streets, in consideration of the sum of $15,000, and on the same date, by a warranty deed, she conveyed to Katharine the south 155 feet of the land owned by her lying- between Exchange street and the Main and Hamburg Canal in consideration of the sum of $10,000, which lots Katharine R. Bemis subsequently sold; the former to Francis H. Root for the sum of $15,000, and the latter to the New York Central Railroad Company for the sum of $16,500. December 27, 1880, Aurelia Bemis, by a warranty deed, conveyed to Katharine R. Bemis the Franklin street property.

December 17, 1852, Aurelia Bemis executed a mortgage in consideration of $2,500 to the Buffalo Savings Bank upon her premises lying- between Seneca and Carrol streets. June 29,1874, this mortgage was discharged .of record and another mortgage was executed by her to the same bank upon the same premises for $6,500. November 14, 1876, a judgment was entered in favor of the bank against Aurelia Bemis for the sum of $7,050.83 upon the said mortgage, and December 7, 1876, the premises, were sold thereunder and bid in by Katharine R. Bemis, and on that day a sheriff’s deed was executed and delivered to her.

Inasmuch as this controversy is confined to the Franklin street lot and the Seneca'street lot, we do not deem it necessary to pursue the record title further. There were other deeds and mortgages executed, but they pertained to other parcels and do not materially affect any question raised for our consideration.

It is claimed on the part of the plaintiff that Asaph Bemis was the agent and trusted son of: Aurelia Bemis, and that as such agent he bid in the several parcels upon the sheriff’s sale in the name of his wife, who took title thereto under such bid, and that under the circumstances she must be deemed to hold the title of such parcels in trust for Aurelia Bemis. There would be much force in this contention were it not for another fact which appears in the case.

The trial court has found “ that in consideration of the conveyance of the real estate to said Katharine R. Bemis by deeds from the sheriff and the said Aurelia Bemis * * * and in addition to money paid, it was agreed by said Katharine R. Bemis that she, said Katharine R. Bemis, would support and maintain for and during the period of their natural lives the said Aurelia Bemis and her said son, Elijah St. John Bemis ; that in pursuance of such agreement the said Katharine R. Bemis did, from and after the making of said agreement, properly support and maintain said Aurelia Bemis until the death of said Aurelia, and did properly support and maintain said Elijah St. John Bemis until the date of the death of said Katharine R. Bemis, which occurred on the 15th of March, 1890 ; that said Katharine R. Bemis, before her decease, provided for the support of said Elijah St. John Bemis during the period of his natural life by her said brothers and heirs, Jonathan and Franklin Sidway; that said Jonathan and Franklin Sidway, soon after the decease of said Katharine R. Bemis, and before the commencement of this action, executed and delivered proper instruments charging upon said property inherited by them from said Katharine R. Bemis the support and maintenance of said Elijah St. John Bemis for and during the period of his natural life, which instrument so executed was and is effectual for the jrarpose aforesaid. And the said Sidways have since the death of said Katharine R. Bemis supported and maintained said Elijah St. John Bemis according to the agreement between said Aurelia and Katharine R. Bemis. That the agreement between said Katharine R. Bemis and Aurelia Bemis for the support and maintenance of said Aurelia and Elijah St. J ohn Bemis was a fair one, and the obligation incurred by said Katharine R. Bemis was a just and fair equivalent for any equity of redemption or other claim which Aurelia Bemis then had or might assert with, reference to any of the property of which said Aurelia Bemis had been seized.”

As to this agreement it is claimed on behalf of the respondents that Asaph was not acting as agent for his mother. We are inclined to concur in this view, for in our examination of the case we fail to find any evidence tending to show that he acted as such agent. lie undoubtedly acted for his mother as to many of the transactions appearing upon the record. She undoubtedly trusted him and relied upon him to a large extent, but when it came to the making of the contract between his mother and his wife, in which he and his wife agreed to support and maintain his mother during her life and her son Elijah St. John during his life, there is no evidence that he acted for her.

An individual who is shown to have acted as agent for another during a long series of years inr business transactions may be presumed in certain instances to continue his agency as to transactions with others, but such presumption will not continue as to transactions between the principal and the agent or his wife.

The question, therefore, is as to whether there was such a contract. The agreement does not appear to have been in writing. The only direct evidence we have of the agreement is the admission of Aurelia Bemis, made in her lifetime to one Jane Eickey, who testified that on one occasion Elijah St. John Bemis was lamenting his position in life, and that his mother replied to him, saying: “You need not trouble. I have made provisions for you.” She further testified that afterwards Mrs. Aurelia Bemis said to her that “ she had turned over her property to her son Asaph and his wife for the keeping of herself and her son Elijah.” When this agreement was made does not appear, neither do its details. This admission was made in the year 1881. The title of the Eranklin street property had been in Katharine since the year 1879, and the title of the Seneca street property since December 7,1876. A warranty deed was executed and delivered by Aurelia Bemis to Katharine of the Eranklin street property in December, 1880. If Aurelia turned over her property to her son Asaph and his wife for her keeping and that of her son Elijah, the agreement must nave been made as early as December, 1876. As to the details of the agreement we have only the admission of Aurelia and the inference that may be drawn from the manner in which the agreement was executed by Katharine. It is an undisputed fact that during the lifetime of Asapli that Aurelia and Elijah were properly looked after, cared for and their wants supplied by him, and that after his death this duty was properly performed by Katharine, and that just before her death, during her last sickness, she called to her bedside her attorney in company with her brothers, the defendants, and gave directions in reference to papers she wished drawn and executed, and that, in accordance with such directions, the defendants executed papers in which they charged their property with the support of Elijah St. John Bemis during his lifetime, and after his death they undertook to convey the Franklin street property to Katharine Bar-tow, the plaintiff in this action. This is the manner in which Katharine Bemis executed her part of the contract.

Was the contract a fair and just one ? As we have sIioavu, Katharine received nothing out of the Franklin street property. It was reserved for the support of Mrs. Aurelia Bemis and her son during their lives, and it then goes to the plaintiff. It was used by them as a dwelling and produced no income. Katharine had to support them and pay the taxes out of the Seneca street property. We are left in some doubt as to the value of this property in 1876. It appears that the Buffalo Savings Bank took a mortgage thereon for $6,500, and that it refused to take a mortgage thereon for any greater stun. Dr. Orson St. John offered $10,000 therefor, but it was not accepted. The plaintiff claims that it was worth $20,000. On behalf of the plaintiff it is claimed that Asaph and Katharine Bemis had been more than paid for any money that they had expended in behalf of Aurelia or Elijah. Whilst on behalf of the defendants, the accounts of Asaph were'put in evidence, showing in detail the amount of payments made, which, after deducting the credits received upon the sale of the lots to Root and to the New York Central Railroad Company, with the rents collected, left a balance his due of $14,008.41. The trial court has found that the agreement was a just and fair one, and that the obligation incurred in the support of Aurelia and her son Elijah was a fair equivalent for any equity of redemption that existed, and this Ending, we think, is supported by the evidence.

Was there deception or undue influence practiced upon Aurelia Bemis to induce her to make the conveyance in question, and was she capable of understanding the nature and import of the ti-ans-action ? These questions have been considered and passed upon by the trial court. There is evidence that sustains the findings. It was undoubtedly true that during the last two or three years of her life she was somewhat feeble in body and mind. She died on December 29, 1883, at the advanced age of ninety years and eleven months. As we have seen, one,of the conveyances brought in question was made in 1876 and the other in 1880, and some of the evidence tends to show that during these years she was quite vigorous, both in body and mind, for one of her years, and that she understood fully every business transaction entered into by her. The trial court had the advantage of seeing and hearing the witnesses deliver their testimony, and whilst the witnesses differ, the testimony taken together is of such a character that we cannot well say that the findings of the trial court are against the weight of evidence.

Upon the trial Dr. Bartow, a son of the plaintiff, was sworn as a witness, and was asked to state the amount of the income that Aurelia Bemis had during the period that he was living in her home. The witness proceeded to state what she had told him. This was objected to by defendant’s counsel as involving a personal transaction and was sustained by the court. The witness was not a party and we do not see how the ruling can be sustained upon the ground stated. Whether her declarations were evidence as against the defendants we shall not now consider, for the evidence is of but slight materiality, and her income was disclosed by other undisputed evidence.

It is claimed that the court erred in admitting in evidence the vouchers, and accounts of Asaph Bemis; that there was no proof of the handwriting of any of the signatures upon the vouchers, and that the hooks were not shown to have been correctly kept. But no objection to these accounts appears to have been made upon these grounds. When offered in evidence they were stated to be the same items set up to defendant’s answer, both as a defense and counterclaim. The plaintiff’s counsel objected to their introduction upon the ground that he had demanded a bill of particulars of the items set forth in the answer and the same had not been furnished. This objection was overruled and we think properly. If the plaintiff had ■desired to avail himself of the exclusion of this evidence under the provisions of section 531 of the Code lie should have procured an order. (Gebhard v. Parker, 120 N. Y. 33.)

We have examined the other exceptions taken, but find none that require a new trial.

The judgment should be affirmed, with costs.

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

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    Lewis F. French, Respondent, v. Frank Aulls, Appellant.

      Master and servant — personal injury — negligence — cha/racter of the machine furnished by the master — risk of the employment — equal kiwwledye as to the machine — contributoi'y negligence.

    In an action brought by an employee against his emplo3>-er to recover damages for a personal injury sustained by the plaintiff while using a circular wood saw, moving in a slit upon a table, which had been furnished for his use on entering upon the employment about two years before his injury, it was claimed that the defendant was negligent by reason of the character of the machine furnished by him. It appeared that the machine was of the. ordinary construction of machines used for the purpose; that others of the same kind were in use and had been for many years, and that it was open and visible to the plaintiff.

      Held, that, under these circumstances, the plaintiff must be regarded as having assumed the risk and perils incident to the use of the machine, in accepting employment to operate it, notwithstanding the fact that there were other and safer machines in use.
    It was also claimed that the defendant was negligent in not having a 'hood over the saw. It appeared that in some mills hoods are placed over the saw, but that they cover it only in part, and that the lower part of the saw which comes in contact with the wood to be sawed has to be left open, and that the plaintiffs injury was inflicted by the lower part of the saw as he was removing the sawed wood from the table.

      Held, that the charge of negligence was not sustained, for the reason that it was not apparent that the accident would not have happened had there been a hood over the saw.
    The proximate cause of the accident was the breaking of a rope attached to the frame of the saw and running over a pulley where it was held at the further end by a weight, the purpose of which was to draw and hold back the saw from the table after each operation of the saw. It was claimed that the defendant was negligent by reason of a defect in the rope. It appeared that the rope was in plain sight, and was often seen both by the plaintiff and defendant; that it had no broken strands or appearance of weakness ; that on the day of the accident the plaintiff observed that the rope was a little flattened at the point where it passed over the pulley, but discovered nothing further in reference to its defective condition ; that the plaintiff knew as much about the rope as the defendant, and that the defendant had no other or different knowledge in reference to it.

      Held, that the facts brought the plaintiff within the rule of servants having equal knowledge with the master as to the character of the machinery in use, namely: If the knowledge or the ignorance of the master and that of the servant in respect to the character of the machine are equal, so that both are either without fault or in equal fault, the servant cannot recover damages from the master.

      Qumre, whether the plaintiff was not guilty of contributory negligence in permitting the saw to be jerked back suddenly and violently’by the weight at the end of the rope, thus producing a greater strain upon the rope than would have existed if the plaintiff had eased the saw back by keeping his hand on a handle provided for that purpose.
    Appeal by tbe defendant, Frank Aulls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Steuben county on the 2d day of July, 1892, upon a verdict rendered at the Steuben Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      J. F. Farhlmrst, for the appellant.

      G. W. Kiribati, for the respondent.
   Haight, J.:

This action was brought to recover the damages which the plaintiff has' sustained by reason of the loss of his arm. On the 4th day of April, 1890, he was in the employ of the defendant engaged in his mill, operating a circular saw. The saw was in a frame hung over a table by means of a hinge. When in a perpendicular position, the lowest point of the saw was slightly helow the top of the table in a narrow slit. It was used for sawing slabs into stove wood. In the rear of the saw there was a beam; and the saw, or frame in which it was placed, was held back against the beam by means of a. rope running over a pulley, having upon the end thereof a weight.

To operate it a slab was placed upon the table against a straight edge; and then the saw, or frame in which it was running, was. pulled forward by means of a handle until the slab was severed, then eased back to its position until the slab could be moved forward. It was the custom of the defendant to run his mill during the spring, summer and fall and then shut it down during the winter. The plaintiff had operated this saw for two seasons, and was engaged upon the third. On the day in question he had pulled the saw forward, cutting a slab in two, and then let the same back against’ the beam, and in doing so the rope broke, allowing the saw to again swing forward, severing his hand from the arm whilst he was engaged in removing the slab from the table.

It is claimed that the defendant was negligent: First, by reason of the character of the' machine furnished for the work; second-, by reason of his not having a hood over the saw; and third, by reason of ■a defect in the rope. In reference to the first charge of negligence it appears that the machine was of the ordinary construction of machines used for that purpose; that others of the same kind were in use and had been for many years ; that it was open and visible to the plaintiff. Under these circumstances he must be regarded to have assumed the risk and perils incident to its use in accepting^ •employment to operate it, notwithstanding the fact that tliére are now other and safer machines in use. In the case of Sweency v. Berlin & Jones Envelope Company (101 N. Y. 520), it was held that when a servant enters into the employment of a master to •operate machinery used in his business of a certain kind or condition, and the servant knows it, he voluntarily takes the risk resulting from its use and can make no claims upon the master to furnish other or different safeguards; that a master may carry on his business with an old machine not provided with all the safeguards attached to new machines., (See, also, Hickey v. Taaffe, 105 N. Y. 26; De Forest v. Jewett, 88 id. 264; Appel v. B., N. Y. & P. R. Co., 111 id. 550 ; White v. Witteman Lithographic Co., 131 id. 631.)

As to the second charge, it appears that in some of the mills hoods are placed over the saw, but that they only cover it in part. The lower part of the saw which comes in contact with the slab has to be left open. It appears that the plaintiff’s arm was cut off by the lower part of the saw as he was removing the slab from the table. It is not, therefore, apparent that the accident would not have happened had there been a hood over the saw.

The serious charge arises in reference to the rope. The ,pi*oximate cause of the accident was the breaking of the rope. The rope had been put on new the season before and it continued in use the subsequent season. It bad been the practice of the defendant to put on a new rope each spring, but he had neglected to do so this, spring. It appears that the rope was in plain sight and was often seen both by the plaintiff and defendant; that it had no broken' strands or appearance of weakness. On the day of the accident the plaintiff observed that the rope was a little flatter at the point where it passed over the pulley, but discovered nothing further in reference to its defective condition. It appears that the plaintiff knew as much about the rope as the defendant; that he knew of the time of its use; that he placed it upon the machine and fastened the weights to it; that he changed them several times, putting on heavier weights, and that it was constantly before his ej’es when he was operating the saw. The defendant had no other or different knowledge in reference to it. It consequently appears to us that he is brought within the rule of servants having equal knowledge-with the master as to the character of the machinery in use. In the case of Marsh v. Chickering (101 N. Y. 396-399), is is said by Miller, J.: “As a general rule it is to be supposed that the master who employs a servant has a better and more comprehensive knowledge as to the machinery and materials to be used than the employee-who has claims upon his protection against the use of defective or improper materials or appliances while engaged in the performance of the service required of him. The rule stated, however, is not applicable in all cases; and where the servant has equal knowledge with the master as to the machinery used, or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for in juries sustained by reason of the use thereof.” In 2 Thompson on Negligence, 1009, the rule is tersely stated as follows : “ The master is under no higher duty to provide for the safety of the servant than the servant is to provide for his own safety. It follows that if the knowledge, or the ignorance, of the master and that of the servant in respect to the character of the machine are equal, so that both are either without fault or in equal fault, the servant cannot recover damages of the master.” (Clarkson v. The P. B. Co., 132 N. Y. 273-278 ; Dingley v. The Star Knitting Co., 134 id. 552; Wright v. The N. Y. C. R. Co., 25 id. 562-566.)

A serious question is presented in reference to the plaintiffs con-tributary negligence. It appears that the iron tied upon the end of the rope weighed from twenty-five to thirty pounds; that after the saw was pulled forward, cutting the slab in two, that if it was allowed to go back suddenly the weight would carry it against the beam with considerable force. The plaintiff tells us that he held to the handle until the saw was eased back part way; that then he would let go and pick up the slab that had been sawed off. The defendant’s witnesses testified that on the day in question he let the saw slam back against the mill with such violence as to jar it, and as to sound like a sledge hammer. The plaintiff denies this, but concedes in his testimony that it would make some noise; that he could not say how hard it went back; that it would go back against the wall; that he was in a hurry, etc. The fact is undisputed that the rope broke over the pulley as the saw was let back against the beam. We can readily see that if the saw ivas allowed to spring back against the beam under the force given by the weight upon the rope of twenty-five pounds or upwards, that it would cause a sudden jerk and produce a strain upon the rope, much greater than it would be if the saw was quietly eased back to its place of rest. The trial court submitted this issue to the jury. Perhaps the evidence is sufficient to warrant such submission. We prefer to rest our decision upon the question of the plaintiff’s .possessing equal knowledge with that of the defendant.

The judgment and order should be reversed and a new trial .granted, with costs to abide the event.

Dwight, P. J., and Lewis, L, concurred.

Judgment and order appealed from reversed ■ and a new trial granted, with costs to abide the event.


text:
    Sarah E. Wheat, Appellant, v. Lillie E. Lord, Respondent, Impleaded, etc.

      Unrecorded mortgage — hnowledge of, hy a purchaser of the premises — question of fact.

    Where a person has knowledge of facts sufficient to put him upon inquiry as to the existence of a prior unrecorded mortgage, or other lien upon the premises that he is about to purchase, he is presumed either to have made the inquiry and ascertained the fact of such prior right, or to have been guilty of a degree of negligence fatal to his claim as a liona fide purchaser; the circumstances, however, must be such as not only to lead him to, but to direct the course of, an inquiry which would, if pursued, end in a discovery of the defect.
    This presumption is a mere inference of fact, and may be repelled by proof that the purchaser failed to’ discover the prior right, notwithstanding the exercise of due diligence on his part.
    Appeal by tlxe plaintiff, Sarah E. Wheat, from a judgment of the County Court of Erie county, entered in the office of the cleric of that county on the 24th day of December, 1891, upon a decision rendered, after a trial by the court, dismissing the complaint upon the merits as against the defendant, Lillie E. Lord.

      Harry D. Williams, for the appellant.

      John G. Milburn, for the respondent.
   Haight, J.:

This action was brought to foreclose a mortgage. On the 3d day of October, 1889, the plaintiff sold the premises in question to one Gifford A. Morgan, who, to secure a part of the purchase money, executed and delivered to her a mortgage thereon for the sum of $1,300. On the nineteenth day of December thereafter Morgan sold the premises to the defendant subject to a mortgage for $3,000, but not to the mortgage in suit, and received his pay therefor in full. The plaintiff’s mortgage was not recorded until the 2d day of December, 1890.

It is claimed on behalf of the plaintiff that the defendant knew of the existence of the plaintiff’s mortgage at the time she purchased the premises; that Morgan informed her of the mortgage and agreed with her to take care of it, and save her harmless therefrom; whilst on behalf of the defendant, it is claimed that she had no knowledge of the existence of the mortgage, or of any other lien upon the premises. The trial court found as facts : That at the time of the said purchase of said land and premises by the defendant, Lillie E. Lord, and the delivery of the said deed of conveyance thereof to her, she had no knowledge of the mortgage referred to and set forth in the complaint herein. That the said Lillie E. Lord purchased said lands and premises as aforesaid, subject only to a three thousand dollar mortgage before mentioned, in good faith and for a valuable consideration.”

If the plaintiff is correct in reference to her contention, she is entitled to recover. If, however, the facts are as claimed by the defendant, the judgment is correct.

The rule is that where a [lerson has knowledge of facts sufficient to put him upon inquiry as to the existence of a prior unrecorded mortgage or other lien upon the premises that he is about to purchase, he is presumed either to have made the inquiry and ascertained the facts of such prior right, or to have been guilty of a degree of negligence fatal to his claim as a lomo fide purchaser. The circumstances, however, must be such as not only to lead to, but to direct the course of inquiry which would, if pursued, end in a discovery of the defect. The presumption is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right notwithstanding the exercise of due diligence on his part. (Williamson v. Brown, 15 N. Y. 354; Birdsall v. Russell, 29 id. 220 ; Stearns v. Gage, 79 id. 102-107; Acer v. Westcott, 46 id. 384-389 ; The Belmont Branch of the State Bank of Ohio v. Hoge, 35 id. 65-68.)

The question is, therefore, purely one of fact. The plaintiff’s case chiefly rests upon the testimony of her attorney as to an admission made to him by the defendant on the 2d’ day of December, 1890, the occasion of his visit to her after the mortgage had been placed in his hands by the plaintiff. It appears that he had had a conversation with Morgan in reference to the matter, and that they had arranged to meet at the defendant’s house ; that Mr. Morgan preceded him; that when he reached the house he met the defendant in the sitting room in company with Morgan, and told her that he had come there by appointment -with Mr. Morgan, and that he supposed she knew the nature of his business ; she replied she thought she did ; that he then had some conversation with her, in which she told him that Mr. Morgan had told her before her purchase of the property that Mrs. Wheat had a mortgage upon the property; that he then asked her if she would be willing to make a statement to that effect, and she said that she would; that he then read to her an affidavit that lie had previously prepared for Morgan to sign, which is as follows:

“State op New York, |

County of Erie, j

ss''

Gifford A. Morgan, being duly sworn, says that he is the person by that name who, about October 3, 1889, bought of Mrs. Sarah E. Wheat the premises No. 285 Fifteenth street, Buffalo, N. Y., being thirty feet front by one hundred twenty feet deep, and thirty feet north of Massachusetts street on the east side of Fifteenth street; that in said purchase deponent assumed a three thousand dollar bond and mortgage upon said premises, and gave Mrs. Wheat in payment for her interest in said lands a second bond and mortgage for $1,300.00 ; that in December, 1889, deponent sold said premises to Mrs. Lillie E. Lord, she assuming said three thousand dollar mortgage ; that at the time of selling said premises to Mrs. Lord deponent knew that the mortgage he gave to Mrs. Wheat on said premises had not been recorded, and told Mrs. Lord so, and tried to find Mrs. Wheat and give her some other security, but could not find her. Deponent told Mrs. Lord of the existence of the mortgage given on these premises to Mrs. Wheat, and told her he would take care of it himself and save Mrs. Lord harmless therefrom, and Mrs. Lord then took the property, assuming the first mortgage, and gave deponent other property in trade. Deponent wrote to Mrs. Wheat in Orange to make some arrangement about this mortgage. Mrs. Lillie E. Lord had refused to take this property unless deponent gave it to her subject only to the three thousand dollar mortgage, and that is why deponent told her he would give Mrs. Wheat other security for her mortgage.

“ Sworn to before me December 2,1890.”

The affidavit was not signed or sworn to by Morgan, but the plaintiff’s attorney indorsed thereon the following:

State op New York, }

Erie eount/y, )

,

“ Lillie E. Lord, being duly sworn, says: I have read the within statement or affidavit made for Mr. Morgan to sign, and know the same to be true in every particular.

. “ (Signed) LILLIE E. LORD.

Sworn to before me December 2, 1890.

“ Harry D. Williams,

Notary PubHc.

Witness : G-ifford A. Morgan.”

Mr. Morgan was sworn as a witness for the plaintiff, and gave a somewhat different version of the interview of December 2, 1890. He says that at the time the plaintiff’s attorney handed to him the affidavit to be signed at his office that he said to him that it was merely an explanation or statement to show Mrs. Wheat that there was no underhand or mean business in the transaction, and that there was no intention to defraud; that he asked if Mrs. Lord would probably sign it, and the witness told him that he thought she would, as it was merely a statement to show that there was no fraud or intention to defraud in the matter; and that at Mrs. Lord’s the plaintiff’s attorney explained why the statement was drawn up for her to sign ; that he wanted it to show to Mrs. Wheat, as Mrs. Wheat had refused several offers made to her for a settlement; he wanted to show her that there was no fraud intended, and that Mrs. Lord liad bought the place on the terms agreed upon, and that upon that basis Mrs. Lord signed it. Witness further stated that he had no idea that it was an affidavit, but understood it to be merely a statement to show to Mrs. Wheat. Upon the question as to whether he did in fact tell the defendant of the existence of the mortgage before her purchase, his first response was : “ If I remember correctly, I told Mrs. Lord there ivas a lien on the property in the shape of a mortgage that I would take care of ; the amount I don’t think that I ever stated to her, or the nature of the lien.” Here we have from him a statement to the effect that he told her that the lien was in the shape of a mortgage, and in the next breath that he had not told her the nature of the lien. In reply to the question, “ Did you tell Mrs. Lord of the mortgage ? ” he answered, “ I presume I told her. I can’t remember now; it is so far back. I presume I told her there was a mortgage on the property, but it didn’t show on the search.” And again, in answer to a question to tell the conversation that he had with Mrs. Lord, he stated : “ I merely told her, there is nothing-on the record against this property, but there is a mortgage against it, and I will take care of it.” Upon his cross-examination, he speaks of its being a mortgage and of its being a lien, and thinks that he mentioned it both ways to the defendant. The defendant tells us that she knew nothing about the existence of the mortgage: that Morgan told her that the title was all right; that he liad examined the search; that there was nothing upon the premises aside from the $3,000 mortgage; that there was another small matter that he would take care of, and that that was all that was said in reference to the title before she purchased .the property ; that nothing was said about there being a mortgage or lien upon the premises aside from the $3,000 mortgage; that on the interview of December 2, 1890, Mr. Morgan came to her house and said that “ there will be a gentleman here this afternoon, who would like to have you sign some papers; I said, ‘ What are they, Mr. Morgan % ’ He says, ‘ That you are knowing to the fact that there was a second mortgage on this place.’ I said I knew nothing whatever of it. He said, ‘Well, Mrs. Wheat, the woman who owns this second mortgage is crowding me for her money, for the $1,300 ; ’ he told me the amount; he said, ‘ I am in no place to pay that, and if you sign this paper, it will give her to understand that you are knowing to the fact, and it will ease me; it will relieve me,’ he says, ‘ from paying her the money at present.’ ” That Mr. Williams, the plaintiff’s attorney, then came and read the paper to her, and she signed it without real-izing what it contained; that her husband was in the house at the time, very sick, and her thoughts were chiefly upon him. This is the evidence bearing upon the question. The findings of the trial court are in accordance with the testimony of the defendant. That court had the advantage of having the witnesses present, and of seeing them when they wore delivering their testimony.

Under the circumstances, we do not consider the findings so clearly against the weight of evidence as to justify this court in reversing the judgment.

The judgment should, therefore, be affirmed, with costs.

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

Judgment of the County Court of Erie county appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    Charles Kinyon, as Administrator, etc., and Others, Appellants, v. Albert Kenyon, Respondent.

      Assignment of cm expectancy by an heir — release by the heir to the ancestor — enforcement in equity.

    The mere expectancy oí an heir to his ancestor’s estate may he assigned, and such an assignment will he enforced in equity after the death of the ancestor if made bona fide and for a valuable consideration.
    The fact that such an assignment or release is made to the ancestor himself, and not to any person capable of taking after his death, is not conclusive against the effect of the instrument.
    Appeal by the plaintiffs, Charles Kinyon, as administrator, etc., of John Kinyon, deceased, and Charles Kinyon, John Kinyon, Jr., and George M. Kinyon, from a judgment of the Supreme Court, entered in the office of the clerk of Niagara county on the 28th day of March, 1892, upon the findings and decision of the court rendered after a trial by the court at the Niagara Special Term.

      J). Millar, for the appellants.

      G. D. Judson, for the respondent.
   Dwight, P. J.:

The four individual parties to the action are the four sons and sole heirs at law and next of kin of John Kinyon, Sr., deceased, and one of the brothers is also joined as plaintiff in his representative capacity, as administrator of his father’s estate. The complaint alleged the execution and delivery by the father in his lifetime, to the defendant, of a deed of a farm of ninety-one acres of land “ as an advancement,” and the execution and delivery thereupon and in consideration thereof, by the defendant to his father, of an instrument in writing, under seal, which, after stating the fact of the deed above mentioned, proceeded in the following terms: Now, therefore, in consideration of such conveyance being made and given to me as aforesaid, I do hereby renounce, release, give up and set over unto my said father all my right, title, claim, interest and demand whatsoever in and to all and every part, parcel or share in and to his real and personal estate which I may or will have at or ■upon his death, in expectancy, by reason of being a devisee or legatee under any will he has made, or by reason of being one of his next of kin, excepting the lands hereinabove referred to as conveyed to me by him this day.”

The complaint further alleges that in proceedings instituted in the Surrogate’s Court of the proper county by the plaintiff Charles Kinyon, as administrator of his father’s estate, for the settlement of his account as such administrator, lie set up the execution and delivery, by the intestate, of the deed above mentioned, to the defendant, and the execution and delivery of the release aforesaid in consideration thereof, and alleged that by such release the defendant did renounce, release and give up all his right, title and interest in and to the estate of the deceased and his right to share therein, and that by reason thereof he was not entitled to any share of or interest in the distribution of said estate; that thereupon, notwithstanding the said release, the said defendant was permitted to intervene upon said accounting, and he filed an answer contesting said account in so far only as the same related to the release aforesaid, and, among other things, therein alleged that the said alleged release was void and of no legal force and effect; * * 'x' and that the said Albert Kinyon was entitled to an equal distributive share of said decedent’s estate, in the one-fourth part thereof,” and that lie asked that a decree be made accordingly.

The complaint further alleges that when the issues thus joined came up to be heard by the surrogate, he held and decided that he had no jurisdiction to determine the validity or invalidity of the release, and that the account of the administrator could not be judicially settled, nor any part of the estate distributed, until the question of the validity or invalidity of the release should be determined in a proper tribunal, and that the surrogate thereupon made and entered an order to that effect and adjourned the accounting, which the plaintiffs are informed and believe will be further adjourned or held open pending the determination of this action.

On the trial of this action evidence al'imnde the deed and agreement was given by the plaintiffs, under objection of the defendant, tending to show that at the time of the execution of the papers it was understood and agreed between the deceased and the defendant that the effect of the transaction as a whole was to bar and prevent him from ever thereafter claiming any share of or interest in his father’s estate. It was also shown that the father had before that time deeded farms to two of his sons, and that he did on this occasion deed a farm to the other of his sons aside from the defendant ; and that at the same time there was proposed, and some steps were taken towards, a division then and there of the certain moneys and securities, which was all the property the father then had undisposed of, between the three brothers other than the defendant, but that on the father manifesting reluctance to strip himself entirely of the last of his possessions, that final division of the personal property was abandoned. The result was that on the death of the father, not long after, there Avas of his estate about the sum of $3,000 in personal property to be distributed among such of his sons as were entitled thereto, and it was upon the return of a citation for the settlement of the accounts of the administrator, with a view to such distribution, that the controversy arose before the surrogate which has resulted in this action.

Assuming, what is not questioned by any one of the parties hereto, that this action Avas properly brought in aid of the proceedings before the surrogate, the question here seems to us to be what Avas properly the scope of the action, and was the case considered and disposed of beloAv in accordance therewith ?

The learned judge at Special Term seems to have restricted the scope of the action to a determination of the validity and effect as a transfer of the release or agreement executed by the defendant. In the opinion, which we find in the case, he intimates that no other question was presented by the pleadings and that no other was tried before him. lie seems disposed, moreover, in determining this question, to isolate the instrument from its surroundings and construe it by its own terms as standing alone. Treated thus, he finds the instrument to be an assignment or transfer of a mere expectancy, not coupled witli any present interest, and holds it to be absolutely void in law, upon the authority of such eases as Jackson v. Wright (14 Johns. 193); Jackson v. Hubble (1 Cow. 613); Miller v. Emans (19 N. Y. 384), and it was upon this as a controlling conclusion of law that the case was disposed of, not merely by a dismissal of the complaint, but by an affirmative adjudication that the defendant was entitled to a full distributive share of the personal estate of his father “ as one of the next of kin, the same’ as if said instrument had not been executed.”

This conclusion ignores any equitable effect which might be given to the instrument in view of the other circumstances of the transaction, and, especially, rejects it as evidence of an advancement made to the defendant in full of his prospective interest in his father’s estate. These latter were, we think, aspects of the case which were fairly presented both by the pleadings and by the proofs, to which brief reference has been made above.

That the mere expectancy of an heir to his ancestor’s estate may be assigned, and that such an assignment will be enforced in equity after the death of the ancestor, if made bona fide and for a valuable consideration, admits of no doubt. (Quarles v. Quarles, 4 Mass. 680; Kenney v. Tacker, 8 id. 143; Power's Appeal, 63 Penn. St. 443; Stover v. Eycleshimer, 46 Barb. 84; 3 Keyes, 620.) And that the assignment or release in this case was made to the ancestor himself, and not to any person capable of taking after his death, is not conclusive against the effect of the instrument. The case of Power's Appeal {supra) was one in which sons had received advancements from their father and executed releases to him in fnll of their shares of his estate; and the court, by Bead, J., said: “An heir or an expectant devisee or legatee may, in the lifetime of the intestate or testate, in equity sell or assign his expectant or contingent interest, whatever it may turn out to be upon the death of the person from whom it may come, which contract, if made upon a valuable consideration, a court of equity will enforce. If so, there can be no reason why a father should not make such a contract with a son, which should entirely bar all his claim as an heir to any part of his parent’s estate.”

So in this case before us we think it was clearly within the scope of the action as presented, both by the pleadings and the proof, to determine whether such a contract was made between the deceased and the defendant which ought to be enforced in equity. This question was also, we think, fairly presented by the plaintiff’s requests to find, and without intimating any opinion as to what the finding in that respect should have been, we are clearly of the opinion that the court erred in refusing to find thereon on the ground that the question was not before the court.

For the error here indicated the judgment should be reversed and a new trial granted.

Lewis, Haight and Bradley, JJ., concurred.

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


text:
    Annabella Babbage, as Administratrix, etc., of Edwin F. Babbage, Deceased, Appellant, v. Edward Webster, as Administrator, etc., of John Babbage, Deceased, Respondent.

      Inference of a claim against a decedent’s estate — costs on dismissal of the claim.

    In a reference under the statute of a claim against a decedent’s estate, the award of costs as in an action, to the defendant and against the plaintiff, on the dismissal of the claim for any cause, rests entirely in the discretion of the court. Semble, that no certificate of the judge or referee before whom the proceeding is heard is necessary where costs are awarded against the claimant.
    Appeal by the plaintiff, Annabella Babbage, as administratrix, etc., of Edwin F. Babbage, deceased, from so much of 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 1st day of March, 1893, as allowed costs as in the above entitled action, to the defendant, on confirmation of the report of a referee dismissing the claim, on a reference, under the statute, of a claim against the estate of John Babbage, deceased.

      G. II Gorhmn, for the appellant.

      JR. G. Webster, for the respondent.
   Dwight, P. J.:

The proceeding was on a claim against the estate of a deceased person, which was referred by consent under the statute. (2 R. S. 88, 89, §§ 36, 37; Birdseye, 1132, §§ 179, 180.)

The report of the referee shows that after the appointment for a healing the case was adjourned from time to time at the instance of the plaintiff, and that on the last adjourned day no evidence was offered on the part of the plaintiff, and the proceeding and claim were accordingly dismissed. The court at Special Term confirmed the report of the referee and ordered judgment ■ in favor of the defendant, dismissing the claim, with costs. It is from the latter provision only of the order that this appeal is taken. It is clearly not well taken. The award of costs in these proceedings is entirely controlled by two statutory provisions, one of which is that cited above from the Revised Statutes; the other is contained in sections 1S35 and 1836 of the Code of Civil Procedure. The provision of the Revised Statutes (2 R. S. 89, § 37, susprd), is that the court may confirm the rejtort of the referee “ and adjudge costs as in aoUons against exeev-tors,” and the provision of the Code referred to'establishes the rule as to costs in actions against executors. But it is to be observed that the rule relates only to costs against the clefendcmts in such actions, and does not affect the award of costs against the plaintiffs. The provision is, in effect, that only when the plaintiff’s demand is duly presented, and either payment is unreasonably resisted or neglected, or reference is refused, can costs be awarded against the executor or administrator, and it is these facts as to presentation, resistance of payment and refusal to refer.which must be certified by the judge or referee who tried the case. There is, therefore, nothing in the two provisions of the statute, taken together, which limits the discretion of the court to. award full costs to the defendant and against the plaintiff in the proceeding by reference like the present,.and all the cases cited by counsel for the appellant requiring a certificate of the referee as a condition of the award of costs are cases in which judgment was in favor of the plaintiff, and the question was as to the award of costs against .the executor or administrator defendant. (Ely v. Taylor, 12 Hun, 205 ; Mersereau v. Ryerss, 12 How. Pr. 300 ; Morgan v. Skidmore, 3 Abb. N. C. 92 ; Schenck v. Rickaby, 11 N. Y. Supp. 444.)

There is no doubt of the discretion of the court to award costs, as in this action, against the plaintiff in a proceeding like this, whenever the complaint is dismissed for any cause.

The order must be affirmed.

Lewis and Haight, concurred.

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


author: Dwight, P.' J.:

text:
    Frank K. Roberts, Plaintiff, v. The Summit Park Company, Defendant.

      Statute of Frauds — scope of the provision as to contracts not to he performed within a year — oral modifi,cation of a contract — consideration.
    The provision of the Statute of Frauds (2 R. S. 135, § 3) which requires “ every agreement that by its terms is not to be performed within one year from the making thereof ” to be in writing, applies only to contracts which either by express provision are not to be, or by necessary implication are not intended to be, performed within a year; in other words, the contract must bo one which by its terms shows that the parties intended that it should not be completed within the year.
    When it is apparent that a contract, by which the owner of land gives the agency for the sale of a limited number of lots to the other part)’’ to the contract until a certain date more than oqp year from the execution of the contract, is not to continue in force after the lots shall be sold and the money therefor collected, and the time limited by the contract for the accomplishment of that work is a maximum, and. the work may be done in as much shorter time as the diligence and good fortune of the agentmay prove to bo sufficient, and complete performance within any shorter period is consistent with all the provisions of the contract, the contract is not to be deemed one that by its terms is not to be performed within a year; and, hence, it is error to exclude evidence of an oral modification of such a contract, on the ground that it is within the Statute of Frauds because not to be performed within a year, and, therefore, void, so far as it was not in writing.
    When an alleged modification of such a contract for the sale of lots is calculated to promote the sale of the lots, and is, therefore, for the common benefit of both parties to the contract, it cannot be said to bo without consideration.
    Motion by the plaintiff, Frank K. Roberts, for a new trial on a case containing exceptions ordered to be heard at the General Term in tlie first instance, after a nonsuit granted at tlie Erie Circuit, on tlie 1st day of December, 1892.

      T, G. Becker, for the motion.

      A. Afoot, opposed.
   Dwight, P.' J.:

The action was to recover commissions claimed by plaintiff under an alleged contract of the defendant constituting him its agent for the sale of lots, and also damages for an alleged violation and wrongful rescission of the contract by the defendant. There was a contract in writing between the parties under which the plaintiff made some sales, but in all of these cases he received his commissions from the moneys paid him on sales, and he makes no claim for any commissions earned or damages sustained by him under the contract, as it was executed in writing. Iiis claim made in this action is-based wholly upon an alleged oral modification of that contract which was never reduced to writing.

On the trial, most of the evidence offered by the plaintiff to establish such modification ivas excluded by the court on the objection of the defendant that the contract was, by its terms, not to be performed within one year from its execution, and was, therefore, within the purview of the Statute of .Frauds, and void so far as it was not in writing. That evidence being excluded, the plaintiff failed to establish a cause of action, and hi* complaint ivas accordingly dismissed. The exception to this ruling presents the only question which requires to be considered on this appeal.

The ruling was correct if the ground of the objection was tenable, and it remains only to examine the contract and ascertain whether it. was in fact one that by its terms is not to be performed within one year from tlie making thereof.” (2 R. S. 135, § 2.) It ivas executed on the 14th day of October, 1891. Its first provision was in the following terms-: “ The party of the first part hereby gives to the party of the second part the exclusive agency, from the date hereof until January 1st, 1893, for the sale of blocks one to fifteen inclusive of the lands of the party of the first part, known as Summit Park,” etc. A further provision is as follows : “ The party of' the second part, during the term of this contract, agrees to maintain •an office in the City of Buffalo for the transaction of business connected with the performance of this contract; to use diligence and his best efforts in effecting sales of said lands * * * ; to attend to the collection of all moneys falling due upon the contracts of ■sale for said lots until the purchase price of the lots so sold respectively shall have been paid, or until the termination or rescission of this contract, * * * .” It was further provided that “ Said lots shall be sold under written contract or deed, * * * ' in which contracts * * * the terms of payment for said lots shall not be less than $50 down, per lot, for lots on Main street and Summit Park avenue, and monthly payments thereon of not less than $10, with interest, and not less than $25 down, per lot, on all other lots, and monthly payments of not less than $5, with interest.” . The contract then proceeds to fix the prices, per front foot, which the lots, of various classes, shall be made to net to the Summit Park Company, and to fix the commission or compensation of the agent; •and, finally, it defines certain contingencies in which the contract may be canceled, rescinded or terminated, without full performance, before the expiration of the term named.

Can it be said of this contract that it was, by its.terms, not to be performed within one year from its execution ? On the contrary, we think it was the evident intent and purpose .of the parties that . it should be performed in as short a time as possible, and that there was nothing in the terms of the contract, any more than in the nature of the case, to prevent its being performed in less than one year, The limitation of the number of lots to be sold in a given time was to a minimum number and, of course, it was not merely permitted, but desired, that the number should be increased as much as possible. The same is true. of the terms of payment when the sales were on contract, and the agent was quite at liberty to require a larger payment down or a larger monthly payment, or both, and thus shorten the time of collection.

In short, it was very plain that this contract was not to continue in force after all the lots should be sold and the money collected; •that the time limited by the contract for the accomplishment of this work was a maximum, and that so far as the contract was concerned | it might be done in any time less than that. .The amount of work B to be done was strictly limited, viz., the sale of so many lots; the I time within which it was to be done was limited only by a maximum and it might be done in as much shorter time as the diligence, the best efforts and the good fortune of the plaintiff should prove to be sufficient.

The conclusion that such a contract is not within the provision of the Statute of Frauds, which we have been considering, is, we believe, supported by all the authorities. It is only contracts which either by express provision are not to be, or by necessary implication are not intended to be, performed within a year, that are required by the statute to be in writing. In other words, the contract must be one which by its terms shows that the parties intended that it should not be- completed within the year. (Boydell v. Drummond, 11 East, 142; Doyle v. Dixon, 97 Mass. 208 ; Drake v. Scaman, 97 N. Y. 230; Kellogg v. Clark, 23 Hun, 393; Day v. N. Y. C. R. R. Co., 22 id. 412 5 Bartlett v. Wheeler, 44 Barb. 162.)

It is very clear that no such intention was entertained by the parties to the contract in this case; but, on the contrary, that while by the terms of this contract performance might be extended over a period of nearly fifteen months, yet that complete performance within any shorter period was consistent with all the provisions of the contract. Such being the case, we are not required to consider the question, upon which there is some conflict of authority, of the effect of the provisions of this contract for its termination or rescis- ■ sion by the act or at the option of one of the parties.

The objection made on the argument here, that the alleged modification of the contract, relied upon by the plaintiff, was without consideration, seems not to be well taken, because that modification, so far as disclosed by the evidence which was received, or which was offered by the plaintiff, was calculated to promote the sale of lots, and was, therefore, for the common benefit of both parties to the contract.

We conclude that the plaintiff’s exceptions to the exclusion of the evidence referred to, and to the granting of a nonsuit must be allowed and his motion for a new trial granted.

Haight, J., concurred; Lewis, L, not sitting.

Plaintiff’s motion for a new trial granted, with costs to abide the event.


text:
    Rochester Distilling Company, Plaintiff, v. Martin O’Brien, Defendant.

      Tort — counterclaim — action against cm attorney for the conversion of money collected— claim for services rendered — attorney’s lien.

    An action brought against an attorney at law to recover damages for the conversion of money collected by him as such attorney, where the complaint contains all the allegations necessary to bring the case within subdivision 2 of section 549 of the Code of Civil Procedure, is an action in tort.
    In such an action, a claim, set up in the answer, for professional services rendered by the defendant to the plaintiff, but not alleged to have been rendered in the same action in which the money in suit was collected, is not allowable as a counterclaim, and, therefore, cannot be available to the defendant, in the absence of proof thereof, on the plaintiff’s failure to serve a reply; and this is so, although the answer may contain allegations sufficient to set up, as a defense, a lien in favor of the defendant on the money in his hands to the'extent of the value of his alleged services.
    Motion by the defendant-, Martin O’Brien, for a new trial on a case and exceptions ordered to be heard in the first instance at General Term, after a verdict for the plaintiff, directed by the court at the Monroe Circuit, on the 8th day of February, 1893.

      L. Hasbrouok, for the motion.

      G. JD. Reed, opposed.
   Dwight, P. J.:

The action was against an attorney at law to recover damages for the conversion of money of the plaintiff, collected and received by the defendant as such attorney. The complaint contained all the allegations necessary to bring the case within the provisions of subdivision 2 of section 549 of the Code of Civil Procedure, rendering the defendant liable to be arrested in the action. The answer of the defendant, besides a denial of some of the allegations of the complaint, pleaded a counterclaim for the value of professional services rendered by him to the plaintiff “ in prosecuting a certain suit and in counselling and advising said plaintiff, and in drawing aryl copying various instruments in writing for plaintiff.” There was no allegation that the services, which are the basis of the alleged counterclaim, or any part of them, were rendered in the same action in which the money was collected for the recovery of which this action was brought.

The plaintiff did not serve a reply, but went to trial on the issues made by the complaint and answer. On the trial it gave evidence tending to establish its cause of action. The defendant gave no evidence, but asked to be allowed the amount of his counterclaim on the ground that the same was admitted by the failure to reply. The court denied the request and directed a verdict for the plaintiff for the amount of its cause of action —■ holding, in effect, that the action was one sounding in tort; that the new matter set up in the answer was neither a cause of action arising out of -the transaction set forth in the complaint as the foundation of the plaintiff’s action, nor was it connected with the subject of the action, and that it was, therefore, not allowable as a counterclaim. (Code Civ. Proc. § 501, sub. 1.)

"We have no doubt of the correctness of this holding and of the consequent direction of a verdict. Nor is the conclusion weakened by the fact now pointed out by counsel for the defendant, that the answer avers all the facts necessary to entitle the defendant to a lien on the moneys in question to the extent of the value of the services mentioned in the answer. Such is the answer and such the law applicable to it. The attorney is entitled to a lien upon all moneys of his client which come into his hands for all professional services rendered that client, whether or not in the action or matter in which the moneys are collected. (Ward v. Craig, 87 N. Y. 550, 560 ; Bowling Green Sav. Bank v. Todd, 52 id. 489.) And the answer sufficiently avers a lien when it states the facts which give rise to a lien without stating the legal conclusion which results therefrom. So it may be conceded that this answer sets up a lien in favor of the defendant, on the moneys in his hands, to the extent of the value of his services alleged; but a lien is not a counterclaim. It constitutes a defense by way of avoidance. The answer implies an admission that the money was received by the defendant, and that he refused to pay it over on demand, and it justifies such refusal on the ground that he has a lien on those moneys for the services rendered by him.

As we have said, a lien is not a counterclaim, nor is it the subject of counterclaim. A lien is a certain right or control which one man has in or over the property of another ; in this case the right of the defendant to hold or retain the moneys of the plaintiff in his hands to satisfy his claim for. services. The lien is something entirely ■ distinct from the claim; it is in the nature of security for the claim ; it may or may not be asserted as such, and the claim may be enforced with or without its aid.

In no sense, therefore, did the defendant’s cause of action either arise out of the transaction alleged in the complaint, nor was it connected with the subject of the plaintiff’s action. His lien was related to the plaintiff’s cause of action only as a defense to it, and his lien was not his cause of action, but only an incident thereto. (See Gottler v. Babcock, 7 Abb. Pr. 392, note ; Rogers v. King, 66 Barb. 495.) As a defense the lien of the defendant was sufficiently averred, but it required to be proved. It is only defenses by way of counterclaim which are admitted by failure to reply. The fault of this defense, therefore, was not in the pleading but in the proof. No evidence having been given in support of the answer, the court necessarily directed a verdict in favor of the plaintiff for the cause of action established in its behalf.

The defendant’s exception to the direction of a verdict must, therefore, be disallowed, his motion for a new trial denied, and judgment ordered for the plaintiff on the verdict.

Lewis, Haight and Bradley, JJ., concurred.

Defendant’s motion for a new trial denied, and judgment ordered for the plaintiff on the verdict.


author: Dwigiit, P. J.:

text:
    Henry Tanner, Appellant, v. Buffalo Railway Company, Respondent.

      Negligence — personal inju/ry — form of instruction on the subject of contributory negligence.

    In an action brought against a street railway company to recover damages for a personal in j ury alleged to have been sustained by a passenger through the negligence of the defendant in causing him to fall from the stop of its electric car, an instruction to the juiy, at the request of the defendant: — “ that if the plaintiff voluntarily and unnecessarily placed himself on the stop outside the car, before it came to a stop and while going at the rate of six miles an hour, whereby his injury was made possible, then he cannot recover,” —is not open to the objection that it does not include the element of “negligence” on the part of the plaintiff, since “voluntarily and unnecessarily” placing oneself in such a dangerous position as that described is, in the nature of things, negligence and imports negligence.
    Appeal by tbe plaintiff, Henry Tanner, from a judgment of the Supreme Court, dismissing the complaint, entered in the office of the clerk of Erie county on the 20th day of December, 1892, upon a verdict in favor of the defendant rendered at the Erie Circuit, and also from an order entered in said clerk’s office on the 20th day of December, 1892, denying the plaintiff’s motion for a new trial made upon the minutes.

      Geoi'ge Wadsworth, for the appellant.

      W. 8. Jenkins, for the respondent.
   Dwigiit, P. J.:

The action was to recover damages for a bodily injury, sustained >y the plaintiff in falling or being thrown from the steps of an elec;ric car operated by the defendant on Niagara street in Buffalo. Che plaintiff, intended to leave the car at Hudson street, and shortly >efore that crossing was reached he went to the rear end of the car, )assed through the vestibule and stepped down onto the lower step,, vhile the car was running at a speed exceeding six miles an tour, and stood there without taking hold of the car with either and until the moment when, as he testifies, the speed of the car was increased by a sudden jerk and he caught hold of the hand rod on the corner of the ear with his left hand and attempted to sit down on the step behind him, but failed to do so, and either fell or was thrown to the ground, sustaining the injury of which he complains. The testimony on both questions, of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff, was quite sufficient to sustain the verdict in favor of the defendant, and the verdict and judgment must stand unless the single exception taken by the plaintiff in the course of the trial points to error in the submission of the latter of those questions to the jury. That excejition was to an instruction given to the jury, in response to a request of the defendant, in the following words: “ That if the plaintiff voluntarily and unnecessarily placed himself on the step outside the car, before it came to a stop and while going at the rate of six miles an hour, whereby his injury was made possible, then he cannot recover.”

Counsel for the appellant urge that this hypothesis excludes the. element of negligence which was the one thing necessary to preclude a recovery by the party injured. But, of course, the effect of the instruction was that the conduct described was of itself negligence. As such, we think it was a correct instruction in this case, the question being left to the jury to say whether the conduct of the plaintiff was within the description given. “ Yoluntarily ” and “unnecessarily” are comprehensive terms. They characterize the act to which they are applied as needless • — ■ not required by the circumstances of the casé — and one which, if it involved danger to life ox limb, was unreasonable and, in the nature of things, negligent. The same terms were employed, without the word negligently,” in the request to charge in the case of Coleman v. Second Avenue Railroad Company (114 N. Y. 609), and it was held error to refuse the instruction. In that case there was evidence tending to show tha the plaintiff had been crowded from his seat and was passing arouin on the side step of the open car in search of another. It was i question in that case whether the exposure to danger was voluntar; and unnecessary. There, probably, was no question about it in thi case, but it is not for the plaintiff to complain that the question wa submitted to the jury.

In the case of Coleman (supra) the familiar rule was reiterate that if passengers without reasonable cause leave the car or place themselves on the outside of it when in motion, they assume the hazards of so doing, citing numerous authorities to that effect, and the term ££without reasonable cause” is treated as substantially equivalent to the term £‘ voluntarily and unnecessarily.”

Under the authorities to which reference is made we can have no doubt that the instruction to which exception was taken was one to which the defendant was entitled.

The judgment and order appealed from must be affirmed.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


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    Frederick E. Cole, Plaintiff, v. The Rome, Watertown and Ogdensburg Railroad Company, Defendant.

      Railroads — negligence — injury to a brakeman — signal given by a fellow brakeman — absence of a rule or regulation — a risk of the employment.

    A. railroad company is not liable for a bodily injury sustained by a brakeman in its employ through, an erroneous signal given by a fellow brakeman, on the ground that the company was negligent in not having adopted and promulgated a rule confining the giving :of signals to some one person connected with the making up of a train, where there is no evidence that such a rule was either reasonable or practicable of enforcement, or that, had it existed and been enforced, it would have prevented the accident.
    When a railroad brakeman knows that a fellow brakeman is authorized to give signals to the engineer when circumstances require them, the risk of accident and injury, resulting from a mistake in giving such signals, is an incident of the employment, and is assumed by entrance upon and continuance in the employment of the railroad company with knowledge of such risk.
    Motion by tbe plaintiff, Frederick E. Cole, for a new trial on a case and exceptions directed to be heard in the first instance at the General Term, after a nonsuit granted at the Monroe Circuit on the 21st day of June, 1892.

      Ghm-les Van Voorhis, for the motion.

      Edward Harris, opposed.
   Dwight, P. J.:

The action was for a bodily injury sustained by tbe plaintiff while engaged as a brakeman on a freight train of the defendant. He was head brakeman, and one Gurnee was hind brakeman of the train. They were engaged in making up a train at the Charlotte terminus; the plaintiff was on the hind end of the last car of a section of the train which was being backed down a siding, and Gurnee was on the ground. The latter gave a signal to the engineer, in response to which the engine was suddenly reversed, and a jerk was produced which threw the plaintiff off the end of the car to the ground, and the injury was received of which he complains in this action.

The only negligence charged upon the defendant by the complaint, consisted in its failure to adopt and promulgate a rule or rules which Avonld have prevented Gurnee from giving the signal mentioned. That rule, it is suggested, should have had the effect to confine the giving of signals to some one person connected with the making up or movement of each train.

There are several reasons why it must be held that no cause of action was made out in this case. In the first place, there is no evidence that such a rule as that proposed Avas either reasonable or practicable of enforcement in the making up of freight trains, and in the next place, it does not appear that the rule, had it existed and been enforced, Avould have prevented the accident in question.

Gurnee gave the signal as he did, under the mistaken belief that the object of backing down had been accomplished, and that the tAvo hind cars had been uncoupled to be left on the siding. So far as appears he Avas as likely to have made that mistake had he been the only person authorized to give the signal as he Avas being one of two persons so authorized to do. Moreover, the plaintiff knew there was no such rule as that suggested; he knew that his fellow brakeman Avas authorized to give signals to the engineer Avlien circumstances required, and that he Avas liable to error and mistake in so doing as in the performance of any other of his duties; the risk of accident and injury resulting from such mistake was incident to the plaintiff’s employment and was, therefore, a risk assumed by him when he entered upon or continued in such employment with a knowledge of such risk.

The fact, if it was such, that the brakes on the two hind ears were defective had no bearing upon the question of the defendant’s negligence, as it had no effect to produce the accident described. The fact was not mentioned in the complaint and it appeared in the evidence only incidentally as explaining why the two cars had not been uncoupled as Gurnee supposed they had been.

The case seems to us, on the whole, to be without evidence of any negligence chargeable to the defendant, which either caused or contributed to produce the injury complained of; and the view we have taken obviates the consideration of any other question in the case.

The nonsuit was properly granted and the motion for a new trial must be denied.

Lewis and Haight, JJ., concurred. •

Plaintiff’s motion for a new trial denied, with costs, and judgment directed for the defendant on the nonsuit.


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    Thomas O. French, Respondent, v. The Western New York and Pennsylvania Railroad Company, Appellant.

      Railroads — failure to fence the track— liability to a person using the adjacent land, under a right from the owner.

    The statutory obligation of a railroad company to fence its track is due to one who uses the land of another, adjoining the track, for the" purpose of pasture under an agreement with the owner thereof; and the company will, therefore, be liable to such person for any loss or injury resulting from its neglect to fence its track, as, e. g., for injuries to his horse caused by its coming upon and falling through a bridge over a ditch by the side of the track adjacent to the land on which the horse was pastured, at a point where the fence was wanting.
    Appeal by tlie defendant, tlie Western New York and Pennsylvania Railroad Company, from a judgment of tlie County Court of Cattaraugus county, entered in the office of the clerk of that county on the 28th day of January, 1893, affirming a judgment of a Justice’s Court in favor of the plaintiff.

      Gary, JRumsey da Hastings, for the appellant.

      JMJ. B. Jewell, for the respondent.
   Dwight, P. J.:

The action, was to recover for injuries to the plaintiff’s horse caused by his falling through a bridge over the ditch by the side of the defendant’s road adjacent to the farm of one Davis. The horse was pastured on the Davis farm and went onto the railroad land at a point where the fence was wanting. The railroad hands had taken the planks off from the bridge for the purpose of repairs, and the horse coming upon it, fell between the stringers. The case is, in principle, precisely like that of Graham v. The President of the D. & H. C. Co. (46 Hun, 386), in which our brethren in the third dejiartment sustained a judgment in favor of a plaintiff who lost his horse by a fall over the edge of a deep cut in which the defendant’s track was laid through the plaintiff’s field, and which was unprotected by a fence. In that case it was held, in an opinion by Landon, J., that the defendant was guilty of negligence in not performing its statutory duty to fence its track (citing Corwin, v. N. Y. & E. R. R. Co., 13 N. Y. 53), and was liable to any party to whom that obligation was directly and individually due, for any loss or injury resulting from its neglect. (Citing Thomas v. Utica & B. R. R. R., 97 N. Y. 245 ; Leggett v. Rome, W. & O. R. R. Co., 41 Hun, 80, and Jetter v. N. Y. & H. R. R. Co., 2 Keyes, 154, 162.) In this case, the obligation was due to the owner of the Davis farm and to persons deriving from him the right to use his fields for the purpose of pasture. The opinion to which we refer also makes clear the distinction between^that case, and equally between this case, and the case of Knight v. The N. Y., L. E. & W. R. R. Co. (99 N. Y. 25), upon which the defendant here mainly relies. The distinction is that in the case of Knight there was no neglect on the part of the defendant of any duty which it owed to the plaintiff. The colt, which was killed by falling through a bridge on the track, was astray on the highway and gained access to the defendant’s lands through the lands of another proprietor. I

The doctrine of that case was, therefore, not in any manner! inconsistent with the judgment in this case. In neither case, it isl true, was the damage inflicted in the manner described by the stat-[ ute, viz., by the agents or engines of the defendant, but in this cases it resulted from the neglect of a statutory obligation due to thel plaintiff, while in the other case no such obligation existed. ¡

We are disposed to concur in the reasoning and conclusion in the case of Graham (supra), and, consequently, to affirm the judgment here appealed from.

Lewís and Haight, JJ., concurred.

Judgment of the County Court of Cattaraugus county appealed from affirmed, with costs.


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    Betsey A. Vaughan, Respondent, v. The Buffalo, Rochester and Pittsburgh Railway Company, Appellant.

      Personal injury — defect in a substituted highway, constructed by a ra/iWoad company — liability of its successor — notice of the defect.

    An action to recover the damages resulting from a personal injury caused by a continuing defect in the original construction of a substituted highway, built by a railroad company on its occupying the original highway with its track, may bo maintained against another railroad company which, as successor in title to the company by which the substituted highway was constructed, is in occupation of the railroad at the time of the injury, without notice to the defendant of such defect in the highway.
    Appeal by the defendant, the Buffalo, Rochester and Pittsburgh Railway Company, from an interlocutory judgment of the Supreme Court, entered in die office of the clerk of Cattaraugus county on the 8th day of March, 1892, upon a decision of the court at Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

      JET. G. Damforth, for the appellant.

      Laidlaw & McNcm', for the respondent.
   Dwight, P. J.:

The action was to recover damages for a bodily injury resulting to the plaintiff from a defect in a public highway in the town of Machias in Cattaraugus county, upon which she was driving. The facts upon which the liability of the defendant was charged, were alleged in substance as follows: That the railroad owned and occupied by the defendant at the time of the accident, was built in the year 1874 by a corporation known as the Rochester and State Line Railroad Company; that in the construction of its line through the town of Machias its track was laid along and upon the highway before mentioned in such manner as to occupy its whole width, and exclude the public entirely therefrom for a certain distance, for which distance the railroad company constructed a new highway adjacent to its line ; that said highway was not then, and never was before the time of the accident in question, restored to its'former state or to such state as not unnecessarily to have impaired its usefulness, but, on the contrary, at the point where the accident happened to the' plaintiff, it was left in an unsafe and dangerous condition and was a public nuisance and so remained down to the time of the accident.

The complaint further alleges that the defendant became, before the date of the accident in question, the successor, in title and possession, of the said Rochester and State Line Railroad Company,

“ through and by various reorganizations ” of that company, and was successor to all its right and title to said railroad and its appurtenances.

The contention of counsel in support of the demurrer is that, without an allegation of notice of the defect in the highway as restored or constructed by its predecessor in title, the complaint fails to state a cause of action against the defendant, and they rely upon the cases of Conhocton Stone Road v. Buffalo, N. Y. & Lake Erie R. R. Co. (51 N. Y. 573), and Ahern v. Steele (115 id. 203), as authority for that proposition.

We find both of the cases cited clearly distinguished from the case at bar and neither of them authority for the application of the rule in respect to notice to this case. The former was an action to recover damages for an injury to the plaintiffs roadbed caused by the same being washed and flooded by the waters of a stream which the complaint alleged was dammed by an embankment and bridge of the defendant. The evidence showed that the structures complained of were erected many years before, by the predecessor in title of the defendant, and there was no evidence that the defendant had notice of any defect of construction which was liable to cause an injury such as that complained of. It was Held in that case that such notice was necessary to give a cause of action against the | successor in title who merely permitted the nuisance to exist. I

The distinction between that case and the present is manifest. The I thing complained of in that case was a private nuisance erected on the property of one corporation and affecting only the property of another. The wrong in that case was in the plan of construction of the bridge, and the damage resulted only in case of a flood in the stream, which, it seems, had not before occurred since the defendant obtained the title. In this case, on the contrary, the nuisance was a public one, rendering dangerous a public highway of the town, and its existence was directly due to a violation of a public statute of the State, by a failure to restore the highway to its former condition of usefulness. This was primarily the duty of the defendant’s predecessor in title ; but it was a continuing duty, and its neglect was a continuing violation of the law, and that whether by the first owner of the railroad or its successor in title. The piece of road in question was one of the structures of the railroad, not for the purposes of its own traffic but for a purpose more directly affecting the public. It was rendered necessary by the appropriation of a portion of a public highway for the uses of the railroad, and it was constructed in pretended compliance with the statutory requirement that the highway should be restored as nearly as possible to its former condition of usefulness. This requirement continued in force until fully performed, and bound each successive owner of the railroad as fully as the original owner.

These considerations, of course, apply only to defects in the original construction of the substituted highway, and such was the defect described in the complaint.

The case of Ahern v. Steele (supra, 115 N. Y. 203), is even less apparently in point than the one so far considered. It was a case in which it was sought to charge an owner who was never in possession, with liability for a nuisance erected by a previous owner and maintained or continued by an occupant, without proof or presumption of notice of its existence to the defendant. Yet even the judgment in that case, acquitting the defendant of liability, was made by a divided court, three of the judges uniting in a very earnest dissent, expressed in an opinion by Danforth, J.

We find no authority in either of the cases referred to for the contention that notice was required to the defendant in this case, of a failure to perform a statutory duty on its own part.

The question of contributory negligence is so purely one of fact that it would be an extraordinary case, indeed, in which it could be held that the plaintiff did, as matter of law, make out that defense by the allegations of his complaint. This case seems to us not to present that extraordinary feature.

We think the demurrer was properly overruled, and the interlocutory judgment appealed from should be affirmed.

Lewis, Haight and Bradley, JJ\, concurred.

Interlocutory judgment appealed from affirmed, with costs, with leave to the defendant to withdraw demurrer and answer over within twenty days, on payment of the costs of the demurrer and of this appeal.


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    Emory Nash, as Executor, etc., of R. Belle Woodin, Deceased, Appellant, v. Sarah M. Springstead, Respondent.

      Landlord and tenant — occupation begun under an agreement for a short term— rebuttal of the presumption, of an agreement for a longer period, arising from continued occupation — evidence of an agreement for the longer period with the co-owner of the original lessor.

    In an action brought to recover rent for the entire period of the defendant’s occupation of the demised pi'emises, it appears that before the occupation began the defendant agreed to pay the plaintiff a certain sum for a certain short period, but declined to take the premises for a longer period, at a higher rate proposed by the plaintiff, and that the defendant went into possession under the agreement as to the short period, but remained in occupation for the longer period,

      Held, that the defendant might show that after the expiration of the shorter period he rented the premises for the remainder of his occupation from the plaintiff’s co-owner, and paid such co-owner therefor, as tending to rebut the presumption (arising from the fact of the defendant’s continuing in possession after the expiration of the short period), of the acceptance at that time of the plaintiff’s proposition for the longer term, and of an implied contract to pay therefor at the rate proposed.
    Appeal by the original plaintiff, R. Belle Woodin (upon whose death Emory Nash, as executor, etc., of R. Belle Woodin deceased, was substituted), from a judgment of the County Court of Chautauqua county in favor of the defendant, entered in the office of the clerk of that county on the 26th day of November, 1890, reversing a judgment of a Justice’s Court in favor of the plaintiff.

      A. G. Pritchard, for the appellant.

      Bootey, Fowler & Weeks, for the respondent.
   Dwight, P. J.:

The action was commenced by the plaintiff’s testatrix in her lifetime for the rent of a house, and her executor has since been substituted as plaintiff therein. The complaint alleges a contract of lease and occupation under it for a period of seven and a half months* w.hereby the defendant became indebted to the plaintiff in the sum of sixty dollars, of which no part had been paid except the sum of one dollar, and the justice gave judgment for the balance of fifty-nine dollars. The answer contained a general denial and the further defense, among others, that the defendant rented the house from the husband of the plaintiff, who was a part owner with her of the property, and payment of the rent to him. The plaintiff demurred to the last-mentioned defense, and that demurrer was sustained by the justice. This ruling was, at least, technically erroneous, because the practice in Justice’s Court permits of no demurrer to an answer, except to a counterclaim. (Code Civ. Proc. § 2935, subd. 4.) The evidence showed that the defendant applied to the plaintiff for the use of the house for a week or two, and desired to know how much she would ask for it, by the month, for a longer time. The plaintiff told her that she might have it for the short túne mentioned for one dollar, and proposed to charge her eight dollars per month for it if she wanted it for the winter. The defendant agreed to pay her the, one dollar for the week or two, but declined to rent it for a longer period at the price named. The defendant went into the house under the agreement made with the plaintiff, and paid her the one dollar agreed upon, but she remained in the occupation of the house for the period mentioned in the complaint. On the trial she offered evidence to show that after the expiration of the week or two she rented the house for the remainder of the time from the husband of the plaintiff, and joint owner of the property, and paid him therefor. This evidence was excluded by the justice, and it must have been* chiefly, on the ground of this ruling that the judgment was reversed' in the County Court. ¥e think the ruling was error for which the judgment was properly reversed.

Of course if there had been an agreement between the parties for the renting of the property for the longer period mentioned, and the defendant had gone into occupation under that agreement, she would not have been at liberty during such occupation to dispute the title of the plaintiff or to attorn to any other person. But it is conceded that there was no such express agreement between the parties at any time, and that the defendant went into occupation of the property declining to accept the plaintiff’s proposition for a longer term than •a week or two. Accordingly, the contention of the plaintiff is that the fact of the defendant’s continuing in occupation, after the ■expiration of the brief term, raises the presumption of the acceptance at that time of the plaintiff’s proposition for the longer term, and an implied contract to pay therefor at the price proposed. The argument is legitimate, and so long as her continued occupation was unexplained, the presumption was sufficient to justify the conclusion contended for. But it was to rebut that presumption, and account for the continued occupancy of the defendant on another theory than that of the acceptance of plaintiff’s proposition, that the ■evidence in question was offered. That evidence would by no means have been conclusive; it may have been of but little weight, but it was, in our ojtinion, evidence to which the defendant was entitled as tending to rebut a presumption of fact upon which the case of the plaintiff depended.

For the error involved in the rejection of that testimony we think the judgment of the justice was properly reversed, and that the judgment of the County Court must be affirmed.

Lewis and Haight, JJ., concurred.

Judgment of the County Court of Chautauqua county appealed from affirmed, with costs.