author: Math am, P. J.:

text:
    Patrick Redmond, Respondent, v. The Industrial Benefit Association of Syracuse, N. Y., Appellant.

      Life insurance — the application and policy constitute the contract — proof of breach of representations — certificate of a physician filed with the insurer, how fa/r evidence • — evidence inadmissible under Gode of Oivil Proc. § 834.
    An application for a policy of life insurance and the policy issued thereunder constitute the contract of insurance, and the insured in entering into such contract is subjected to the terms, rules and provisions of the by-laws of the company. The representations contained in the application are deemed warranties, and if they are materially false or broken the policy will be void, and the beneficiary thereunder is not entitled to recover thereon.
    In an action brought on a policy of life insurance, any statement as to the cause of the death of the insured, contained in the certificate of the physician of the insured filed with the insurer by the beneficiary as part of the proof of the death of the insured, and put in evidence on the trial, is not proper evidence against the plaintiff upon such trial of any fact, knowledge of which was acquired by the doctor by reason of his relation as a physician to the insured, if objected to under section 834 of the Code of Civil Procedure, but it is competent evidence as an admission by the plaintiff of the cause of the death of the insured; beyond that it does not bind the plaintiff as an admission.

      The fact that a physician prescribed for a person, shortly prior to the issuing to her of a policy of life insurance, is no evidence of the falsity of the insured’s representations that she was in good health, contained in the application for the policy, when there was no assertion in the warranty that the insured had not had the services of a physician within such period prior to the making of the application, nor does the fact that the insured was ill subsequent to the issuing of the policy raise a valid presumption against the truth of such representations.
    It is proper, upon the trial of an action brought to recover the amount of a life insurance policy, to exclude, under the provisions of section 884 of the Code of Civil Procedure, the testimony of the physician of the insured as to what he was treating her for when he testifies that his information upon that subject was such as was necessary to enable him to treat the insured professionally.
    (Herrick, J., dissenting.)
    Appeal by the defendant, The Industrial Benefit Association of Syracuse, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 23d day of October, 1893, upon the verdict of a jury rendered after a trial at the Albany Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 23d day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes'.

      Walter 8. MacGregor and William F. Beutler, for the appellant.

      James G. Matthews and FramMi/n M. Da/naher, for the respondent.
   Math am, P. J.:

The defendant, being a mutual co-operative association organized under and in pursuance of the provisions of chapter 175 of the Laws of 1883, issued its certificate or policy of membership to Catherine Redmond, dated the 17th day of October, 1891, in class B of the association, providing for the payment to the beneficiary of the amount therein named on proof of the death of the assured.

On the 6th day of April, 1892, the assured died, and proof of the death was duly made and presented to the association, which refused to pay the amount of insurance on the ground that the representations of age and health contained in the application were untrue, and that the policy was, for that reason, void: and in this action, prosecuted by the plaintiff as the sole beneficiary named in the policy, the defendant interposed such alleged false representation by way of defense. It is quite true, as contended by the learned counsel for the defendant, that the application and policy issued by the company under it constitute the contract of insurance, and that the insured in entering into that contract is subjected to the terms, rules and provisions of the by-laws of the company. (Hutchinson v. Supreme Tent Knights of Maccabees, 68. Hun, 355 ; Smith, v. Brown, 27 N. Y. Supp. 11.)

Section 1 of article 7 of the by-laws makes the application upon which the certificate is based a part of the contract between the association and the assured, and provides that any fraudulent or untrue answers or statements made therein concerning the age, health or condition of the person therein insured, or of any material fact, shall render the certificate issued thereon void. Such representations in the application are deemed a warranty, and their falsity in an essential particular, a breach of the same, which renders the policy void. (Dwight v. Germania Life Ins. Co., 103 N. Y. 311.)

If, therefore, by the undisputed evidence the warranty in the application was false or broken, then the policy would be vitiated or void, and the beneficiary in such case could not recover.

The only evidence in the case, so far as we can see, tending to show a breach of the warranty in the application, is that found in the proof of the death of the insured offered in evidence by the defendant.

That proof consisted of a verified certificate of Dr. Boyd, filed by the plaintiff with the defendant, containing, among other things, the opinion of the doctor as to the cause of her death, and the diseases of which she died, and containing also a statement that in January, 1891, he prescribed-for the insured for a disease described in the certificate as renal calculi. This certificate having been furnished by the plaintiff to the defendant as one of the facts tending to establish his right to the insurance fund, it was urged by the defendant as an admission that the insured had been, within three years prior to the time of making her application, ill of some of the diseases referred to in her application, and consequently that her application was in that particular untrue and her warranty broken.

But it will be seen by a comparison of tbe application witb this certificate (if competent evidence upon tbe subject of tbe diseases of tbe insured), tbat tbe former is not contradicted by tbe latter. Tbe evidence does not in terms establish tbat renal ealeuli is a disease of tbe urinary organs existing at the time of tbe making of tbe application by tbe insured. And it was not error for tbe judge to so charge. Nor does tbe fact asserted in tbe certificate contradict any of tbe statements or warranty in tbe application. Tbe questions propounded and answered in tbe application upon which a warranty can be predicated are as follows:

“ 7. Has tbe insured ever bad a stroke of paralysis, apoplexy, or bad cancer, or anything resembling tbe same 2 If yes, state fully. No.

“ 8. Has tbe insured during tbe past five years bad any of tbe following diseases? (Yes or No.) If yes, state fully. Asthma? No. Liver complaint ? No. Palpitation or disease of the heart ? No. Bronchitis? No. Dropsy? No. Rheumatism? Yes. Diseases of tbe urinary organs ? No. Or any disease, ailment or infirmity not mentioned herein 2

9. Has tbe insured any ailment or infirmity at tbe present time ? No.

“ 10. Present state of health of insured is good.

“ 11. Have any material facts relating to tbe bodily health or condition of tbe insured been omitted or suppressed 2 No.”

None of these statements appear to be expressly proved untrue by the evidence offered on tbe trial, even if we regard the certificate of Dr. Boyd competent evidence as an admission by the plaintiff. But we think tbat tbat certificate, so far as it tended to prove any fact, knowledge of which was acquired by tbe doctor in bis relation as a physician for tbe insured, before tbe issuance of tbe policy, was not proper evidence against tbe plaintiff on tbe trial, if objected to under section 834: of tbe Code of Civil Procedure.

Tbe cause of tbe death was a pertinent inquiry, and so far as tbe certificate proved tbat, it was competent evidence as an admission by tbe plaintiff. (Buffalo Loan, Trust, etc., Co. v. The Knights Templar & Masonic Mutual Aid Assn., 126 N. Y. 450.)

But beyond tbat we do not think it bound tbe plaintiff as an admission. Nor do we think tbat bis evidence, tbat be prescribed for her in. January, February and March, 1891, any evidence of a breach of the warranty contained in the application. There was no assertion in the warranty that she had not had the services of a physician within three years previous to the date of the aj>plication.

This is not inconsistent with the determination of this court in Boland v. Industrial Benefit Association (71 Hun, 385 ; 56 N. Y. St. Repr. 382). In that case Putnam, J., expressly disclaims the conclusiveness of the certificate of death made by Dr. Graveline, but put his decision upon the ground that the whole evidence upon the trial shows that the certificate was true.

It was, therefore, an open and disputed question of fact in this case whether or not the warranty made by the insured in her application was true, which was properly left by the trial judge to the determination of the jury, and his refusal to nonsuit the plaintiff was not error. Nor was it error to exclude the testimony of Dr. Boyd offered by' the defendant as to what he was treating the assured for in 1891. He testifies that his information upon that subject was such as was necessary to enable him to treat the insured professionally.

That brought him clearly within the prohibition of section 831 of the Code of Civil Procedure, and rendered his testimony upon that subject inadmissible, and it was properly excluded by the court, the inquiry relating to a period subsequent to the issuing of the policy, and did not, therefore, prove the physical condition of the insured at the time of making and signing the application. That she was sick subsequent to that time raised no valid presumption against the truth of her representation in the application. (Tucker v. The United Life & Accident Insurance Association, 133 N. Y. 518 ; Cushman v. U. S. Life, 70 id. 72.)

Nor was the evidence auxiliary to or explanatory of the certificate of the cause of the insured’s death, and it was not, therefore, made necessary or proper by that certificate. By the introduction of that certificate the plaintiff did not waive the protection which he might claim under the provisions' of section 831 of the Code, sujpta. Nor did that certificate absolve the doctor from all the duties and obligations imposed upon him by that section. We think this action well brought at law to recover the amount which, under this policy, was capable of being ascertained, liquidated and reduced to a definite sum of money, tbe amount of wbicb was capable of proof from tbe books of tbe defendant, based upon tbe receipts in tbe class in wbicb tbis policy was issued, and tbe proof seems in tbis case to sbow tbat tbat amount bad been definitely ascertained and was disclosed to tbe jury by competent proof, and tbe money so set apart to meet tbis class of liabilities could be reached in tbis action, if not by execution, by proceedings supplementary to or in aid of execution.

If tbe plaintiff is entitled upon tbe merits to judgment we see no objection to a recovery in tbis form of action.

The judgment must be affirmed, with costs.

Putnam, J., concurred; Herrick, J., dissented.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    Jennie M. Wood, Respondent, v. The American Fire Insurance Company of Philadelphia, Appellant.

      Insurance policy — assignment of— ownership presumed from possession — an assignment for creditors by a member of a firm —does not dissolve the firm — knowledge by an agent cha/rgeable to his principal — waiver of the conditions of a policy — effect of a judgment and sale under execution.

    A written assignment of a cause of action on an insurance policy, made after the loss, containing a sufficient description of the matter assigned, stating a valuable consideration and executed by all the survivors of an insured firm, is valid.
    Upon an appeal from a judgment rendered in favor of the plaintiff, in an action brought upon a fire insurance policy, the appellate court cannot assume, for the purpose of avoiding the policy, in the absence of any proof on the subject, the want of ownership by the insured of the insured property.
    Courts will not be astute to find ways to work the forfeiture of a contract of insurance, or seize upon imaginary or doubtful pretexts to effect that result, and in an action upon a policy of fire insurance the insured is not bound in the first instance, before a recovery can be had for a loss, to prove title to the property insured; possession tnereof at the time of taking the policy is enough in the absence of an affirmative defense of want of title and proof sustaining such defense.
    The insolvency of a member of a firm, or his assignment for the benefit of creditors, does not per se dissolve the firm, except as to future events, and as between the co-partners, as to third parties, the partnership is not by such transfer or insolvency ipso facto dissolved, where the partnership still continues to transact business; the property of such, firm remains its property until a dissolution in fact occurs, and an accounting is had and the firm obligations are paid, at which time the assignee of the individual member of the firm would be entitled only to the assignor’s share of the surplus; the corpus of the effects of the firm is joint property and no one partner separately has any ownership in that corpus, but the interest of each is only his share of what remains after the partnership, debts are paid and accounts are taken.

      Query, as to whether the fee of real estate owned by a firm does not, for the purposes of the partnership, remain in the firm after a general assignment for the benefit of creditors by an individual partner.
    When the real condition of a member of a firm who had made a general assignment for the benefit of creditors was known to the agent of an insurance company, who accepted an application made by such firm, and issued to it a policy of fire insurance, it cannot be claimed that such assignment constituted a breach of warranty of title by the insured, as the knowledge on the part of the agent who transacted the business was the knowledge of the company, and was a waiver of the warranty of title of the assured to the premises insured.
    A waiver after the issuing of a policy of fire insurance must be in accordance with its terms; but at or before its inception such waiver will be presumed if the agent had knowledge at that time of the facts thereafter claimed to be a defense to an action brought thereon; and if an insurance company issues a policy of fire insurance and accepts a premium therefor, with knowledge of the facts on the part of its agent, it will not be permitted to set up such facts to avoid the policy in case of loss.
    The right of an insured under a policy of fire insurance is not affected by a judgment and sale under execution of the property insured until after the expiration of the fifteen months allowed for redemption.
    Appeal by the defendant, The American Fire Insurance Company of Philadelphia, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 8th day of June, 1893, upon the decision of the court rendered after a trial at the Clinton Circuit.

      L. I. Shedden, for the appellant.

      T. F. Conway, for the respondent.
   Mayham, P. J.:

The action in this case- was prosecuted by the assignee of an insurance policy issued by the defendant to a firm known and designated as "Wood Brothers.

The defendant by its answer and on the trial relied upon various grounds of defense, and urge the same on this appeal as grounds for a reversal of this judgment.

The first is that the assignment of the cause of action to the plaintiff is insufficient. We see no binding objection to the validity of this assignment.

It was in writing, contained a sufficient description of the matter assigned, was made after the loss, stated a valuable consideration, and was executed by all the survivors of the firm.

The second objection, that the insured had no title to the insured property, seems equally untenable. The insured property which was destroyed by the fire, and was covered by the policy, was in possession of the firm, and appears to have belonged to it, and no question upon the proof was made as to the validity of the title of the insured, and the defendant in issuing its policy treated it as the property of the Wood Brothers.

In the absence of proof this court on appeal cannot assume want of ownership in the insured for the purpose of avoiding the policy. ■

In McMasier v. Insurance Company (55 N. Y. 232) Eolgbb, J., says : The current of the decisions runs to this ; that courts will not be astute to find ways to work the forfeiture of a contract of insurance.” Applying this rule of construction, we cannot hold that the Wood Brothers had not at the time of this insurance the title to the property insured. The insured is not bound in the first instance before a recovery can be had for a loss to prove title, as he would be required to do in an action of ejectment.

Possession of the property at the time of taking the policy is enough in the absence of an affirmative defense of want of title and proof sustaining such defense. It was alleged in the answer, and proved on the trial, that one of the co-partners at the time of the issuance of the policy had made a general assignment of all his property for the benefit of creditors and that the assignee had sold his. interest at public auction, but it also appeared affirmatively that no actual dissolution of the co-partnership had been effected and that the firm continued to transact its co-partnership business down to the time of the fire which destroyed the insured property.

It is insisted by the defendant that the interest of one member of the firm having passed to his assignee, the interest of the Wood Brothers is not truly stated in the policy, and that such mis-statement annuls it.

If this were an individual policy taken in the name of the assignor after such assignment, such mis-statement would doubtless avoid the policy. But the insolvency of a member of a firm or his assignment does not, we think, per se dissolve the firm except as to future events, and as between the co-partners, as to third parties, the partnership is not by such transfer or insolvency ipso faoto dissolved where the partnership still continues to transact business. (Taft v. Buffum, 14 Pick. 322; Sistare v. Cushing, 4 Hun, 506.)

It remains the property of the firm until a dissolution in fact occurs and an accounting is had and the firm obligations are paid, when the assignee of the individual member of the firm would be entitled only to the assignor’s share of the surplus. In Menagh, v. Whitwell et al. (52 N. Y. 158) Rapallo, J., says: The corpus of the effects is joint property, and neither partner separately has anything in that corpus, but the interest of each is only his share of what remains after the partnership debts are paid and accounts are taken.” Within this principle it is doubtful whether the fee of the firm’s real property did not remain in the firm after the assignment of the individual partner for the purposes of the partnership.

If the title remained in the firm after this individual assignment, it cannot be claimed that the existence of that assignment was a breach of warranty of title to the premises in Wood Brothers. The same may be said, we think, as to the other assignment by individual partners and the appointment of a receiver as to one not set up in the answer, but proved upon the trial.

This assignment did not divest the firm of title, and the defendant issued its policy to the firm and not to the individual members thereof. The provisions of the policy as to the title referred to its quality, and the title being in the firm was not in any way affected by the assignment of individual members. (American A. G. S. Co. v. Glens Falls Ins. Co., 48 N. Y. St. Repr. 653, 654.)

But if it can be held that the assignment or transfer by individual members of a firm of their individual interests affects the title of the firm so that it cannot be said to be the owner in fee,-still as the real condition of the member of this firm who had assigned was known to the agent of the defendant who took this application and issued this policy, it cannot be claimed that such transfer constituted a breach of warranty of title by his company. The knowledge on the part of the agent who transacted the business was the knowledge of the company, and was a waiver of the warranty claimed to be broken. (Berry v. American Central Insurance Co., 30 N. Y. St. Repr. 53; see, also, Broadhead v. Lycoming Ins. Co., 14 Hun, 452.)

A waiver after the issuing of the policy must be in accordance with its terms, but at or before its inception such waiver will be presumed if the agent had knowledge at that time of the facts claimed to be a defense. If a company issues a policy, and accepts a premium with knowledge of the facts on the part of the agent, it will not be permitted to set up such facts to avoid the policy in case of loss. To permit the defendant to attack the validity of the policy on account of those facts would be to impute to it a fraud in receiving the premium and issuing a policy in the first instance which it knew to be void. (Haight v. The Con. Ins. Co., 92 N. Y. 51, 55; Van Schoick v. Niagara Fire Ins. Co., 68 id. 434-441; Woodruff v. The Imperial Fire Ins. Co., 83 id. 133-141; Richmond v. Niagara Fire Ins. Co., 79 id. 230 ; Whited v. Germania Fire Ins. Co., 76 id. 415.)

The evidence does not disclose any affirmative assertion of title or any concealment of any fact from the company at the time of effecting the insurance, or that the insured was asked by the company to make any statement in reference to its title.

In Cross v. Nat. Fire Ins. Co. (132 N. Y. 136) the court say: “ The party applying for insurance is not bound to disclose the nature or extent of his interest to the insurer unless requested.”

The Wood Brothers at the time the insurance was effected had an insurable interest in this property. That interest they sought to protect by this policy. There is no claim that this policy was procured by fraud, and the loss far exceeds the amount of insurance; and the happening of the event insured against would result in pecuniary loss to the insured. (Cone v. Niagara Fire Ins. Co., 60 N. Y. 619 ; Herkimer v. Rice, 27 id. 163.) Under such circumstances, while the court should not overlook any clear violation of the contract, it should not seize upon imaginary or doubtful pretexts for the purpose of forfeiting the policy. After the making of this policy a judgment was recovered against the Wood Brothers to whom it was issued, on which an execution was issued and the premises on which the building covered by this policy stood were sold, and a sheriffs certificate of sale executed to the purchaser, but before the time of redemption under such sale had expired the insured building was burned.

The defendant now insists that by the terms of the policy this judgment, execution, sale and sheriff’s certificate rendered the policy void. The exact provision of this policy upon that point is not contained in the case, but is partially stated in both the brief of the plaintiff and that of the defendant, from which it appears that to invalidate the insurance by judgment, the interest, title or possession of the subject of the insurance must be changed.

This was not affected by the judgment or proceedings under it.

The judgment debtor was still entitled to the possession of the insured property. Section 1440 of the Code of Civil Procedure provides as follows: “ The right and title of the judgment debtor * * * is not divested by the sale until the expiration of the period within which it can be redeemed.” We must, I think, therefore, treat this judgment and sale under it, so long as the right to redeem exists, as inoperative as against the terms of the policy and the right of the insured or their assignee is unaffected by the same.

The right and title of the insured under that section was not changed at the time that the liability for this loss attached.

In Cone v. Niagara Fire Ins. Co. (60 N. Y. 619) the policy contained this provision: “Any interest in the property insured not absolute or that is less than a perfect title, or if a building is insured that is on leased ground, the same must be specifically represented to the company and expressed in this policy in writing, otherwise the insurance shall be void.”

In discussing the effect of a sale under execution of the property insured under this policy the court uses this language: “ Palmer (the owner) had this interest certainly until the last day of the fifteen months for judgment creditors to redeem. * * * It is apparent that Palmer retained the legal title to the premises until the expiration of the fifteen months; as these did not expire until after the fire, his title continued until after the fire, and he, till after that event, had a pecuniary interest in the premises • which was affected by their destruction by fire without the indemnity of insurance!

This and kindred cases seem to settle the doctrine that the right of the insured is not affected by a judgment and sale until after the expiration of the fifteen months allowed for redemption. (Baley v. Homestead Fire Ins. Co., 80 N. Y. 21; Green v. Homestead Fire Ins. Co., 82 id. 51 7; Colt v. Phoenix Fire Ins. Co., 54 id. 595; Walradt v. Phoenix Ins. Co., 136 id. 375.)

We have carefully examined the numerous exceptions taken by the learned counsel of the defendant to the findings and refusals of the learned judge to find, and see no error for which this judgment should be reversed.

PutNAM, J., concurred; Herrick: J., concurred in the result.

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    Homer J. Martine and Godfrey R. Martine, Appellants, v. William H. Robinson, and Lyman Jenkins, as Assignee, etc., of The New York and Oriental Tea Company, and Another, Respondents.

      Partnership — assignment for the benefit of creditors — executed by one pa/rtner with his co-partner’s consent — express assent is not necessary — what is a sufficient consent — burden of proof.

    Where one member of a firm, in the absence of his co-partner, conveys an undivided half interest in the partnership stock to a third person, without any intimation to such purchaser of the existence of the firm, and business is thereafter carried on between the partner who makes the sale and the purchaser, the other member of the original firm does not become a partner of the purchaser.
    One member of a co-partnership can, with the oral or written consent of the other partner, make an assignment of the firm assets for the benefit of creditors.
    When a general assignment for the benefit of creditors is valid on its face the burden is upon those attacking the same to establish its invalidity.
    It is not necessary to show an express assent to the execution of a general assignment for the benefit of creditors by a partner not executing it. It is sufficient if the assent may be inferred from the acts or declarations of such partner.
    TJpon the trial of an action brought to set aside an assignment executed by one of two members of a firm, the member of the firm executing the assignment testified that he had the following conversation with his partner:
    “ I asked him if it wouldn’t be better to make an assignment than it would to let the sheriff come in and close up the business, and the doctor said he didn’t know but what it would; and from that I asked him if he couldn’t raise a part of the money, and he said that he couldn’t; and I told him that if I would make an assignment for him to give me a paper to make an assignment, and he said I didn’t require any; lie said I could go on and sell out the whole business and not ask anybody, and I told him I never heard of any two men being in partnership and one making an assignment without a paper from the other; and he said I didn’t need a paper; that I was general manager, done all the business and signed all the checks; and then he said that he wasn’t a partner. I think that is about all the conversation there was. This conversation took place before the assignment was made. It wasn’t but two or three days before. It was right near the time.”

      Held, that such testimony, although contradicted, if believed by the referee, was sufficient to support his conclusion that the partner not executing the assignment consented to the execution thereof.
    Appeal by tlie plaintiffs, Homer J. Martine and another, from a judgment of tlie Supreme Court in favor of tbe defendants, entered in the office of the clerk of tlie county of 'Warren on the 28th day of July, 1892, upon the report of a referee.
    The action was brought to set aside a general assignment for the benefit of creditors of a firm known as “ The New York and Oriental Tea Company,” by parties claiming to have been co-partners with one William II. Robinson, by whom the assignment was made.
    It appears that one undivided half or other interest in a certain stock of goods owned by a co-partnership composed of Homer J. Martine and Godfrey R. Martine had been conveyed by the latter to William H. Robinson, by whom and Godfrey R. Martine the business after such sale was carried on.
    As stated in the opinion of the referee, “No intimation appears to have been conveyed to the defendant Robinson that Homer J. Martine had any connection with the business before he himself became connected with it, and it very clearly appears that nothing was said between him and either of the plaintiffs, or done, that would warrant any conclusion that Homer J. Martine was to or did become a member of the New York and Oriental Tea Company.
    “ The plaintiff Godfrey R. Martine and the defendant Robinson contradicted each other in relation to the question of the consent of the former to the assignment, but from the position taken by Mr. Martine throughout the case as to his not being a member i/nter se of the co-partnership, and through the general trend of his connection with the affairs of the company, it seems to me that the defendant Robinson’s statements were correct ones, and that he did have authority and consent from his co-partner to make the assignment.”

      T. D. Trumbell, Jr., for the appellants.

      T. W. McArthur, for tbe respondents.
   Putnam, J.:

Plaintiffs, claiming to have been co-partners with one William H. Robinson in a business carried on at Glens Falls, N. Y., under the firm name of The New York and Oriental Tea Company,” brought this action to set aside a general assignment for the benefit of creditors executed by said Robinson in the name of said firm, making said Robinson and the assignee, Lyman Jenkins, parties defendant. The defendant Jenkins, who alone answered, denied that the plaintiff Homer J. Martine was a member of said firm, and alleged that the assignment was executed by Robinson with the consent of the other plaintiff. The trial was before a referee, who reported in favor of the defendants, and from the judgment entered on his report the plaintiffs appeal.

The questions in the case were of fact, and a careful examination of the testimony has satisfied us that the learned referee did not err in his conclusions.

The evidence was such that he could properly find that the business of the New York and Oriental Tea Company from 1887 to the time of the assignment was carried on by the plaintiff Godfrey and Robinson as equal co-partners, and that the plaintiff Homer was not a member of said firm. It is true that there is evidence indicating that on April 12, 1887, Homer owned an undivided interest in common with his co-partner Godfrey in a stock of goods, one undivided half interest in which was by Godfrey sold to Robinson. But such a sale did not make Robinson and Homer co-partners. The referee doubtless relied upon the testimony of Robinson that Godfrey said that he was the owner of the stock of goods in question, and further said “ he would sell one-half of the business if the references that I (Robinson) gave him were satisfactory, and that I (Robinson) should be general manager of the business and we should divide the profits equally; we should be partners and share and share alike ; ” that he (Robinson) did not know that Homer had any interest in the goods. The fact that Godfrey sold an undivided one-half of Homer’s goods to Robinson would not make the latter two co-partners, unless with the consent of hoth parties. The testimony of Robinson, above referred, to, is contradicted by Godfrey. It was for the referee to determine between the two witnesses. lie believed the statement of Robinson, and we are unable to say that he erred in so doing. ’Without attempting to discuss the evidence, we think all the facts and circumstances of the case tend to support the testimony of Robinson and to show that Homer was not a member of the co-partnership. The contract was made between Godfrey and Robinson while Ilomer was in Florida. It appears that Godfrey was authorized to manage the business for Iiomer. According to the testimony of Godfrey, when the sale was made to Robinson in the spring of 1887 the name of Homer was not mentioned. It was not stated that he was interested in the business. Nor does it appear by the evidence produced by plaintiffs that Robinson was in any manner informed that he, Godfrey, owned the goods qrarchased or any interest therein. It is difficult to see, therefore, how, on the testimony produced by the plaintiffs,, the claim that there was a contract of co-partnership between Homer and Robinson can be sustained. Robinson could not be made a partner with Homer without his consent or knowledge. The plaintiffs fail to satisfactorily show any consent on the part of Robinson to enter into any relationship with Homer. Hence, the finding of the referee was justified, not only by the evidence of Robinson, but also by that produced by plaintiffs.

If Homer was, as he claimed, the owner of the goods, one-half of which was sold to Robinson April 18, 1887, and the New York and Oriental Tea Company, without due authority, ajapropriated and used said goods in its business, it may be that he has a claim against said company or its members, or one of them, on which he could maintain an action, but not this action. Hence, we find no error in the conclusion of the referee that Homer was unnecessarily made a party plaintiff.

It has long been settled that one member of a co-partnership can, with the oral or written consent of the other, make a general assignment for the benefit of creditors. (Welles v. March, 30 N. Y. 344; Klumpp et al. v. Gardner et al., 114 id. 153; Hooper et al. v. Baillie et al., 118 id. 413.)

We have already held in this case that the assignment in question was on its face valid, and, hence, that the burden was on plaintiffs to prove its invalidity. (Sherman v. Jenkins, 53 N. Y. St. Repr. 780-782); see, also, Hooper et al. v. Baillie et al., supra.) Tbe question then arises wlietlier plaintiffs succeeded on tlie trial in showing that the assignment in question was executed.1 without the assent of the plaintiff Godfrey. The referee found “ that the -said instrument was made, executed and delivered by the defendant William H. Robinson in the name of the said company and the members thereof, by and with the consent and upon the authority of the plaintiff Godfrey R. Martine.”

The case of Klumpp et al. v. Gardner et al. (supra) holds that it is not necessary to show an express assent to the -execution of a general assignment by a partner not executing it. It is sufficient if an assent may be inferred from the acts or declarations of such party. In the case cited an assent was inferred from the language of a letter written by the one not executing the assignment in which he says: “ Should you have to make an assignment make Mrs. A. a preferred creditor,” etc. In this case Robinson testified as follows, viz.: “ I asked him if it wouldn’t be better to make an assignment than it would to let the sheriff come in and close up the business, and the doctor said he didn’t know but what it would; and from that I asked him if he couldn’t raise a part of the money, and he said that he couldn’t, and I told him that if I would make an assignment for him to give me a paper to make an assignment, and he said I didn’t require any; lie said I could go on and sell out the whole business and not ask anybody, and I told him I never heard of any two men being in partnership and one making an assignment without a paper from the other; and he said I didn’t need a paper ; that I was general manager, done all the business and signed all the checks; and then he said that he wasn’t a partner. I think that is about all the conversation there was. This conversation took place before the assignment was made; it wasn’t but two or three days before; it was right near the time.”

This testimony, although contradicted by Godfrey R. Martine, was believed by the referee, and we cannot say that he erred in his conclusion. It appears, therefore, that while Robinson and Godfrey were speaking of a claim they were unable to meet, and of an assignment, the latter said that the former did not require any paper to make an assignment. He could go bn and sell out the whole business and not ask anybody. This shows an assent to the assignment in question on the part of the partner not executing it as clearly as was shown in Klumpp et al. v. Gardner et al. (supra).

"We, therefore, conclude that the consent of Godfrey to the assignment was sufficiently shown. "W e also think it sufficiently appears that the New York and Oriental Tea Company was insolvent at the time the assignment was executed.

As in the brief of the learned counsel for the appellants no mention is made of the exceptions taken upon the trial to the rulings of the referee in receiving or excluding testimony, we do not deem it necessary to discuss them.

The judgment should be affirmed, with costs.

Mayham, P. J., and HeReicK, J., concurred.

Judgment affirmed, with costs.


author:
Brown, P. J.:
      DyeMAN, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Julia L. James [now Julia L. Butterfield], as Executrix, etc., of Frederick P. James, Deceased.

      Bond given by a husband to his wife —meritorious consideration only — obligor not estopped by judgment of foreclosure — a judgment cannot be attacked collaterally —decree of sale enforced by an executrix against her testator’s estate — right of a life tenant and of a remainderman to dividends on stock — validity of checks given by a husband to his wife — devisee of realty must pay a mortgage thereon— costs of a special guardian.

    A bond (where a mortgage is collateral thereto) executed as a gift by a husband to his wife is not enforcible against his estate, as it amounts to no more than a naked promise of the obligor to pay in the future, and being without consideration can be enforced neither against him nor his estate. (Dykman, J., dissenting.)
    The presumption of a consideration arising from the presence of a seal on a written instrument is overcome by proof that such instrument was executed as a gift; whether an instrument be a promissory note or a bond, when it is shown to have been executed and delivered with no other consideration than natural love and affection, it has the same legal character as regards the obligation of the maker. (Dykman, J., dissenting.)
    The equitable rule which supports a provision made for a wife or child, upon a meritorious consideration alone, is not applicable to an executory contract which, when supported by a meritorious consideration only, cannot be enforced either in law or equity in the State of New York. (Dykman, J., dissenting.)
    The failure of a mortgagor to appear and answer in a suit brought to foreclose a mortgage does not debar him from thereafter contesting his personal liability for any deficiency on the bond which accompanied such mortgage, where no personal judgment against him was obtained in the action brought to foreclose the mortgage.

      A judgment rendered in an action brought to foreclose a mortgage by a court having jurisdiction of the subject-matter of the suit, upon due and legal notice to the mortgagor, hinds the property, the mortgagor and the persons who derive any interest therein through him. It cannot he attacked collaterally, and must he deemed valid until vacated and set aside in some direct proceeding brought for that purpose.
    A judgment of foreclosure and sale, the operation of which was confined to the land affected thereby, was recovered by a person who, after the recovery thereof, became the .executrix of the estate of tlio owner of the fee of such property.
    Held, that in the absence of proof showing misconduct in the sale or that the property sold for a sum largely below its value or was purchased for her benefit at an inadequate price, it was not a violation of duty on the part of such executrix to enforce the decree against such property.
    As between a life tenant and a remainderman all dividends paid from property in which the capital of a corporation is invested, or the proceeds thereof, belong to the remainderman, while all dividends from current or accumulated earnings go to the life tenant; such rule is applicable to corporations which employ their capital in business enterprises, and earn an income from such employment, hut it is not necessarily applicable to the dividends of a corporation, the entire capital of which consists of land and whose sole source of income is the sale thereof, and interest on deferred contracts of sale, or on purchase-money mortgages; and the fact that a dividend is paid from the capital of a corporation is not conclusive as to the right of the life tenant to receive it.
    A legacy must he construed in accordance with the intent of the testator, and where a testator bequeaths to his widow one-half of the income of all his property of every kind of which he should die possessed, and at the time of his death the testator owned stock in a corporation, the entire capital of which was land and whose sole source of income arose from the sale of such land, it will he held that the testator by the use of the word " income” intended to include the dividends upon such stock.
    Checks given by a person, wben dying, to his wife, named in his will as executrix, in the absence of any evidence explaining why such checks were given, or the purpose for which they were received and used, must, upon her accounting as executrix, be treated as part of the testator’s estate, and he accounted for by her. (Dykman, J., dissenting.)
    A devisee of real estate covered by a mortgage must pay the amount secured to be paid by such mortgage, and it is not the duty of the testator’s executrix to pay the amount of the same out of the personal property of the estate.
    A surrogate has power to allow costs to the special guardian of an infant out of the estate of a decedent, hut the compensation awarded to such special guardian should he limited to the services rendered prior to the decision of the Court of Appeals that such infant had no interest in the personal estate of the decedent.
    Cross-appeals by Julia L. Butterfield, as executrix, etc., of Frederick P. James, deceased, and by Ilarlin J. Woodward, an. infant, by his special guardian, Frank E. Smith, and others, contestants, from various portions of a decree of the Surrogate’s Court of the county of Putnam, entered in the Putnam County Surrogate’s Court on the 1st day of July, 1892, modifying, settling and allowing the account of proceedings of the executrix, etc., of Frederick P. James, deceased.

      William II. Arnoux, for contestants Chas. D. Chase and others.

      Frank F. Smith, for contestants Ilenry A. James and others.

      Charles S. C lark, for the guardian ad litem.

      William W. Goodrich and William F. Q winn, for the executrix.
   Brown, P. J.:

Frederick P. James died in May, 1884, leaving a last will and testament dated February 26, 1818. He left no descendants, and his heirs and next of kin v’ere brothers and sisters and descendants of brothers and sisters. lie left a widow, now Mrs. Butterfield, who is the sole executrix of the will. The will has received judicial construction by the Court of Appeals. ( Woodward v. James, 115 N. Y. 346.) Under its decision the testatrix is entitled to one-half of the gross income, and the heirs of the testator are entitled 'to the other half, subject to the payment therefrom of all expenses, and after the .death of the testatrix they are entitled to the principal of the estate.

Numerous questions are presented upon this appeal which will be considered in their order.

First. As to the claim made by Mrs. James against the estate and the mortgages upon the lauds in Iowa. On October 10, 1819, the testator executed and delivered to his wife two bonds and mortgages, one to secure the payment of $43,920, and the other the payment of $30,120, each payable one year after date, with interest at seven per cent. The lands covered by the mortgages were situated in Lyon county, Iowa. In November, 1882, with the consent of Mr. James, suit was commenced in the District Court of Lyon county to foreclose said mortgages, and process was personally served upon Mr. James at. his residence in the city of New York, Iii May, 1883, upon default of appearance in the action, judgment of foreclosure and sale was entered, and in 1885, after the death of Mr. James, the real estate was sold under the judgment, and there was realized thereon, over and above taxes, the sum of $5,151 which was applicable to the payment of the debt. The decree of foreclosure gave no judgment against Mr. James, and none was ever recovered against him. The claim of the executrix is for the balance secured to be paid by the bonds, amounting to $127,120.10 for principal and interest, and has been allowed by the surrogate, and the decree directs that she pay that sum to herself out of the personal estate. The surrogate found that at the time of the execution of the bonds and mortgages Mr. James -was not indebted to his wife in any sum whatever, and that the bonds and mortgages were executed and delivered (1) as a provision for his wife in addition to the bequests and devises in her favor contained in his will.” (2) “ As a gift.”

As gifts the bonds are not enforcible against the estate. They amount to nothing more than the donor’s naked promise to pay in the future, and, being without consideration, could be enforced neither against him nor his estate. (Harris v. Clark, 3 N. Y. 93 ; Holmes v. Roper, 141 id. 64; Wilson v. Baptist Ed. Society, 10 Barb. 308; Basket v. Hassell, 107 U. S. 602; Pom. Eq. Juris. § 1148; Anthony v. Harrison, 14 Hun, 198.)

The presumption of a consideration arising from the seal is overcome by the findings quoted. The finding that the bonds and mortgages were given as a provision for Mrs. James, in addition to the provisions in her behalf made in the will, can have no meaning other than that they were gifts. The testimony to which we are referred as supporting this finding permits no other conclusion. But if this finding gave greater support to the claim of the executrix than the fact that they were gifts, it would be insufficient to uphold the decree. The equitable rule which supports a provision made for a wife or child, upon a meritorious consideration alone, is not applicable to an executory contract. The case of Whitaker v. Whitaker (52 N. Y. 368) is conclusive upon this question. The facts there differed in no respect from those in this case. A promissory note and a bond, shown to have been executed and delivered without consideration other than natural love and affection, are of the same legal character in their relation to the makers. In the case cited the surrogate and the General Term gave judgment upon the note upon the ground that the husband’s obligation to provide for his wife after his decease was a sufficient consideration to support it. But the Court of Appeals overruled this contention, reversed the judgment and disallowed the claim. This case is in harmony with the current of authority in this country and in England. (Story’s Eq. Juris. § 987; Pom. Eq. Juris. § 1293; Perry on Trusts, §§ 107, 108 ; 2 Kent’s Comm. 464.)

The cases cited in behalf of the executrix are mostly ones of executed contracts. In those in which executory contracts have been upheld, the courts have found in the facts a consideration other than that of natural love and affection. Hunt v. Johnson (44 N. Y. 27) was a case of an executed transfer of land by a husband to his wife. Bucklin v. Bucklin (1 Abb. Ct. App. Dec. 242) was decided on the theory that the instrument was an executed contract. Beard v. Nutthall (1 Vern. 427) was of the same character. Van Amburgh v. Kramer (16 Hun, 205) involves no question applicable to this action. In Isenhart v. Brown (2 Edw. Ch. 341) three bonds made by the testator without valuable consideration were held to be valid claims against his estate. These bonds were all dated in May, 1820, and the testator died the same year leaving a will dated in 1818. The doctrine laid down in that case cannot be supported under later authorities. But the bonds were dated and matured before the enactment of our statute, which makes a seal presumptive evidence only of a sufficient consideration, and were probably-assumed not to be affected by it, although the case was not decided until 1834. No question appears to have been raised as to the right to inquire into the consideration, and the bonds were assumed to be good without discussion. But, without further reference to the numerous authorities cited by counsel, it is sufficient to say upon the point under consideration that an executory agreement, supported by a meritorious consideration only, cannot now be enforced in law or equity in this State. (Wilbur v. Warren, 104 N. Y. 195; Twenty-third St. Bap. Church v. Cornell, 117 id. 601.)

The judgment recovered in Iowa affords no support to the plaintiff’s claim. Its effect is confined within the limitation of the court which granted it. No jurisdiction was acquired over James personally, and under the service made, the court had no power to render judgment in personam. (Lutz v. Kelly, 47 Iowa, 307.)

Mrs. James obtained all the relief in the foreclosure suit to which she was entitled, and the failure of Mr. James to appearand answer the complaint did not debar him from thereafter contesting his personal liability for any deficiency on the bonds. Giving full faith and credit, therefore, to the Iowa judgment, it does not touch the question presented here and does not bar the defense now made.

We are of the opinion, therefore, that the plaintiffs claim was not established, and must be disallowed.

But while the judgment of foreclosure has no effect upon James’ personal liability upon the bonds, it is conclusive as to the ownership of the mortgage and the right of Mrs. James to have the lands described therein sold, and the proceeds applied to the payment of the amount secured to her. Having been rendered by a court having jurisdiction of the subject-matter of the suit, upon due and legal notice to Mr. James, the judgment binds the property and all persons who derive any interest therein through him. (Durant v. Abendroth, 97 N. Y. 140.)

It cannot be attacked collaterally, and must be deemed valid until vacated or set aside in some direct proceeding brought for that purpose. It precludes, therefore, any inquiry into the question discussed by some of the contestants as to the right of the executrix to sell the land, or as to whether she held the mortgage in trust for the firm of P. P. James & Co. The contestants acquire their right in the land solely through the will of James, and they are not privy to any rights of the firm or of Mr. Taylor, the other partner. After the rendition of that judgment Mr. James could not have litigated the question whether the mortgage was not held in trust for him, and the contestants are likewise debarred from raising it. Counsel for Charles I). Chase has argued at some length that as Mrs. James is trustee of all the property under her husband’s will, it was a violation of her duty to sell the land under the foreclosure judgment. But I do not see how she could avoid so doing without abandoning all rights under that judgment. As already stated, it was not a judgmen in personam. Its operation was confined to the land. And, in the absence of proof showing misconduct in the sale, or that the property sold for a sum largely below its value, or was purchased for lier benefit at an inadequate price, I think there was no violation of her duty to the estate in enforcing the decree.

Second. As to the distribution between principal and income of money received by the executrix upon certain stocks. A part of the assets of the estate consisted of stock in three construction companies, viz.: The Hastings and Dakota Railway Company, the Minnesota Central Railway Company and the Minnesota Railway Construction Company. The two first named, prior to Mr. James’ death, built and sold railways, and received in payment land grants. The Minnesota Railway Construction Company built and sold a railway, and received in part payment a certificate of indebtedness secured by a mortgage on land. In reference to the last-named company the surrogate found that since the death of Mr. James it had no other property, except such certificate of indebtedness and mortgage, and that the mortgaged land had been sold from time to time, and the said comnany had Released its mortgages and received sums of money, partly from sales of land and partly from interest on deferred payments on sales. That it had no other business, and all the dividends paid to stockholders since the death of Mr. James had been derived from these sales and from interest on deferred payments on contracts of sale. In reference to the two first-named companies, he found that they had no other property, except the lands received under said grants, and no other business or source of income, except the sale of such lands, and that since May, 1884, all the dividends paid to their stockholders had been derived from the sale of such lands and from interest received on deferred contracts or on purchase-money mortgages accepted in payment for the sale of such lands. He further found that the capital of all of said companies, at the death of Mr. James, consisted of said lands and certificates of indebtedness, and that after his death none of them acquired any other property or assets. After the death of Mr. James dividends were paid upon these stocks aggregating $82,504. The executrix received $61,824 and the receiver of F. P. James & Oo. $20,680. The surrogate found that $66,090.06 was derived from the sale of land, and the balance from interest -on deferred payments on contracts of sale, and he apportioned that derived from sales of land to capital, and that derived from interest on contracts to income. Both parties have appealed from this part of the decree. The executrix claims that the dividends on all of the stocks named must be treated as income, and the contestants' that that part paid to the receiver must be treated as principal. I think the claim of the testatrix must be sustained. The general rule applicable to dividends declared upon corporate stocks may be conceded to be as claimed by the contestants, viz.: That as between a life tenant and remainderman all dividends paid from property in which the capital of a corporation is invested or the proceeds thereof belong to the remainderman, while all dividends from current or accumulated earnings go to the life tenant. That rule is applicable to corporations which employ their capital in business enterprises and earn an income from such employment; but it is not necessarily applicable to the dividends of such a corporation as those under consideration. The fact that the dividend is paid from capital is not conclusive as to the right of the life tenant to receive it.

Mining and coal companies and all corporations whose capital is invested in property which is quarried and sold in the market pay their dividends from proceeds of their capital. When their mines and quarries are exhausted their capital is gone and dividends cease. But it would hardly be claimed that the annual dividends declared by such companies did not fall within the general designation of earnings. The corporations under consideration were not engaged in any business, as that term is ordinarily understood. Their capital was in lands, and they had no source of income other than sales of land. Dividends were declared out of the capital, and could not be derived' from any other source. The corporations divided not only earnings from increase in value of lands, but capital in the proceeds of the sale of land itself. This was understood and contemplated by all the stockholders in the corporation. Under the rule applied by the surrogate, if all sales were for cash there would be no income to the estate until dividends were reinvested, but if sales were on credit income would be derived from interest on deferred payments. There is, in my judgment, a clear distinction between dividends paid by a corporation of the character of those named and dividends on the Stock of a corporation which employs its capital in ordinary business. Reed v. Head (88 Mass. [6 Allen] 174) supports this view. The corporations there under consideration were land companies. The bequest was of the income and dividends on the stock. It was decided that this meant dividends from sales of property constituting its capital stock. In that case, as the corporations could make dividends from no other source, the intent of the testator was plain. And if the bequest here was specifically of the income or dividends on the stock in question, there would be no doubt that the testator intended such dividends as should in the ordinary course of events be declared and paid upon the stock. The same result, I think, follows from the bequest as actually made. "We must construe it in accordance with the intent of the testator. He gave to his wife one-half of the income of all his property of every kind of which he should die possessed. These stocks formed a material part of his estate. By the word “ income ” he clearly intended to include the dividends upon them, as they would constitute the only income to be derived from them. He knew there would be no earnings except from sales of land, and, hence, that the dividends would be paid from the property in which the capital was invested. He could not have intended that income should be limited to interest on contracts of sale, as there might not be any such contracts, nor to interest on dividends after they should be received by the testatrix and reinvested, for he gave her the income on property which he possessed at his death and not on that into which it should be converted after his death. In my opinion he intended his widow to have such dividends on the stocks in question as the corporations from the nature of their business and property would ordinarily make. The fact that the life tenant might possibly thus acquire the whole capital stock, is incidental to the character of the corporation and the manner in which the capital was invested. But it is an event not likely to occur. It was referred to in Reed v. Head (supra), and not regarded of much force, and is considered of little importance in the decision of this case.

None of the cases cited by the contestants relating to dividends on corporate stocks conflict -with the rule here applied. They all relate to banking or business corporations, and are in that respect distinguished from the case under consideration. For these reasons we are of the opinion that all the dividends on the construction company stock paid to the testatrix are income, and must be so treated. The testatrix would not necessarily be entitled, however, to the full amount of dividends paid to the receiver of F. P. James Co. That partnership was composed of Mr. James and Horace Taylor. Both partners died within a few days of each other, Taylor dying first. A receiver was appointed who administered upon the firm property, paid the debts and transferred the surplus to Mrs. James, who thereafter settled with the executrix of Mr. Taylor. The question may be considered, therefore, as if Mrs. James was .alone interested in the firm property. The receiver took possession of securities actually worth $653,724.41. The firm indebtedness was $345,446.49. There was paid to him as dividends on the stocks of the construction company, $20,680, and he received from other sources income amounting to $17,508. This latter sum, together with $4,294.32 of the first-named amount, which the surrogate held to be income, less such sum as was paid to Taylor’s estate, has been credited to the testatrix. The right of Mrs. James as life tenant was to receive the income on her husband’s share of the firm assets. This was the surplus after payment of the debts. The income paid to the receiver should have first been applied to pay interest on the firm debts. The balance would have been applicable to be disposed of under the will of Mr. James. I assume the firm debts drew interest and that it was paid by the receiver. By giving to Mrs. J ames the whole income derived from the fix-m assets, the interest on the firm debts was paid out of the principal. The income, including the dividends on the stock in the construction companies, which was paid to the receiver, should be redistributed, applying it first to the payment of interest on the firm indebtedness, and the balance to the testatrix. If the amount of interest paid on the firm indebtedness is not proven then it must be divided into two parts bearing the same proportion to each other as the firm debt bore to the actual value of the securities received by the receiver, and that part representing the debts of the firm credited to the capital of the estate ■and the balance to income.

Third. .As to the payment of $2,500 to Mrs. James upon the day of her husband’s death. This amount must be charged to her personally. The surrogate’s finding that the checks for this sum were delivered to her by her husband!s authority is not sustained by any evidence in the case. The only testimony on the subject of this payment is that of McDonald, the bookkeeper of the firm. It fails to show any authority emanating from Mr. James' to pay the money to his wife, nor is it shown that it was applied by her for the benefit of her husband or his estate. At the time of the giving of this money Mr. James was dying, and in the absence of any evidence explaining why it was paid or the purpose for which it was received and used, it must be treated as a part of the estate and charged to the executrix.

Fov/rth. As to the settlement with Taylor’s estate and the' assignee of that interest. I have examined fully the evidence relating to the settlement of the Taylor interest in the firm, and am of the opinion that the surrogate’s conclusions as to that transaction must be sustained. There appears to be a small balance due the estate, which is treated in the decree as an asset. It is not chargeable personally to the executrix, unless she was guilty of some bad faith or neglect in the matter. None is found by the surrogate, and his finding has support in the evidence.

Fifth. As to the mortgages on the Rockingham apartment house. The executrix was not hound to pay these mortgages out of the personal estate. The contestants as devisees of the real estate must pay the principal of the mortgages, while their half of the income of the estate is primarily chargeable under the will with the interest. In this situation I fail to see any ground for complaint against the action of the executrix.

Sixth. As to the allowance of costs to the special guardian. The surrogate had power to make this allowance. (Code Civ. Proc. § 2561.)

But the compensation awarded to the guardian of Harlan J. ■ Woodward should be limited to the services rendered prior to October, 1889, the date of the decision of the Court of Appeals in the action of Woodward v. James. It was there determined that Woodward had no interest in the personal estate, and after that ruling I do not see that it was essential that he should have been represented in this proceeding.

Other questions have been argued but none of them require notice.

The decree of the surrogate must be modified in.accordance with this opinion, and as modified affirmed, with costs to all parties to be paid out of the estate.

The order to be settled by the presiding justice upon notice.

DyeMAN, J.

(dissenting):

I concur in the opinion of tbe chief justice in this case except in two respects, the bonds and mortgages upon the lands in Iowa and Texas and the checks for $2,500 delivered to the executrix on the day of the death of her testator.

My conclusion is that the bond and mortgage were intended as a provision for the wife of the mortgagor, and that as there has been a valid judgment for the foreclosure of the mortgage, and there are no intervening rights of creditors, the transaction is valid.

A mortgage is a conditional transfer of real property, and has been sustained as a provision for the support of a child. (Bucklin v. Bucklin, 1 Keyes, 145.) Why not for a wife ? The relation of husband and wife is sufficient to sustain the instrument. (4 Kent Comm. 465.) Conveyances to a wife are always upheld when not prejudicial to creditors. (2 Kent’s Comm. 132.) A conveyance of real property by a husband to liis wife, intended as a gift, may be sustained in equity. (Hunt v. Johnson, 44 N. Y. 27.) There is nothing in reason or natural justice prohibitive of this transaction.

Here we have a man of large wealth, whose duty it was to make ample provision for the support and comfort of his wife both during his life and after his death, and any application of his property to that purpose must receive the approbation of the courts and has ever done so.

The cases of Harris v. Clark (3 N. Y. 94) and Phelps v. Pond (23 id. 78) are not authorities adverse to this claim.

In the first case the decision was made with reluctance in obedience to authority, and in the second case the gift would have been sustained if a wife had been the beneficiary of the promise.

These two bonds and mortgages were instruments of a much more solemn character than bills of exchange or promissory notes. The land was the primary fund for the payment of the money as between the parties to the instruments and there has been a judgment for the enforcement of the mortgage.

To hold that this rich man, who had no children and no creditors, could not give his wife a bond and mortgage which she could enforce is equivalent to a decision that he could not do what he would with his own property.

I cannot bring my mind to such a conclusion, and I find no authority which obliges me to concur in such a result.

In relation to the $2,500 received by Mrs. Butterfield from tbe cleric of Mr. James I can perceive no more reason for charging her with that sum.

She was the wife of Mr. James and the head of his household; as he was unable to attend to business we must assume that his wife made the purchases for the house and paid the bills.

It was a time when unexpected expenses might become necessary and it was uncertain when or how more money could be obtained.

There would be equal propriety in charging the wife personally with money received by her during the week or month previous for household expenses.

• I am, therefore, in favor of affirming the decree of the surrogate upon these two subjects.

Motion to dismiss appeals denied, decree modified and as modified affirmed, with costs to all parties payable out of the estate.


author: Brown, P. J.: Peatt, J.

text:
    Adalina C. Richard, as Administratrix, etc., of Henry A. Richard, Deceased, Respondent, v. Henry Sanford, as President of the Adams Express Company, Appellant.

      Personal injuries — verdict based on conjecture, set aside.

    In an action 'brought to recover damages for personal injuries alleged to have been caused by the negligent driving of another, if the verdict of the jury can be supported only by conjecture and speculation the judgment rendered thereon must be reversed upon appeal. (Pjratt, J., dissenting.)
    Appeal by the defendant, Henry Sanford, as president of the Adams Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of December, 1893, ujion the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 18th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      William H. Guthrie and Henry B. Warcbner, for the appellant.

      JD. Hemirs, for the respondent.
   Brown, P. J.:

The judgment in this action must be reversed upon the ground that the evidence does not permit the inference that the driver of the wagon was negligent, or that injuries received by the deceased were caused by the defendant.

The accident happened between five and six o’clock on November twenty-first near the corner of Pearl street and Maiden Lane in the city of New York.

The express wagon was going north on Pearl street, and the deceased was crossing the street just north of the crossing on the north side of Maiden Lane.

There was no eye witness of the accident sworn upon the trial except the driver of the wagon. He testified as follows: “ I was driving along Pearl street and I see this man just across the crossing in a diagonal way. lie attempted to cross the street and I .shouted at him, and my helper shouted at him, and I hauled up my horse all. I possibly could, and he staggered and fell. My horse I just held like that, steady. He neither tramped on him nor did the wagon or shaft hit him. My horse did not touch him in any way. The shafts did not strike him in any way. The wheels did not touch him in any way. When the man fell he fell probably from two to three feet ahead of the horse, as near as I can guess. I hauled my horse Up, handed the lines to my man, and got down; the pair of us got down and lifted him up. The gentleman started to run across about ten feet ahead of. the crossing. It was north of the crossing, up towards Fulton street. The moment I saw the man attempt to cross I shouted to him. I held up my horse for all I was worth and he did stand.

“ I was driving through Pearl street about ten feet, as near as I can guess, from Maiden Lane. I was going up-town towards Fulton street. That is where I was crossing Maiden Lane. I was probably about ten feet, as near as I can guess, over the up-town crosswalk. Mr. Richard came from the up-town, the Broadwray, side, across down-town towards the ferry. I think that is what he was making for. I see him start from the sidewalk on a run, and at the time that I saw him fall probably he was six or seven feet across the street, may be more; I couldn’t just say.”

The only witness called by the plaintiff to prove the accident was Henry Baker. He testified as follows: “ On the evening or in the-afternoon of November, 1891, I was on tbe southeast corner of Maiden Lane and Pearl street, New York city. It was somewhere around between five and half-past five o’clock in the evening; I was standing on the corner waiting for a friend to close his store, previous to going to Brooklyn; and while I was waiting I heard a wagon passing the corner at a very fast rate, and I just turned around to see what it was — what the noise was about, and didn’t pay no more attention to it until it had crossed Maiden Lane, and then I heard, a sudden stop, and I saw two or three men running towards the wagon, and I knew it was an accident, and I saw some one lying in front of the horse as I run over. Ye helped the man to his feet and carried him over to the sidewalk. At the time it stopped this wagon was about five feet from the crossing of Pearl street and Maiden Lane. When I looked around and the wago.n had stopped, Mr. Richard was' in front of the horse, lying down. The horse was in Pearl street going up towards Fulton street. When they stopped they were at the up-town crossing towards Fulton street, about five feet over it. I ran to the place where Mr. Richard was. I got there as soon as some of the other people got there. At the time that he was lying there in front of the horse he spoke. I heard what he said. The driver was down on the street then; he got of£ the wagon.

“ I saw no marks on him. He was within two feet of the horse when I got there.

“ I know of nothing in the way to obstruct the view of the driver of this wagon to prevent his seeing Mr. Richard before he came on to him; there was a truck going up Maiden Lane from Pearl street about three or four minutes previous to the express wagon coming down or going up. It was out of the way before the express wagon got to the down-town side of Maiden Lane. The truck that I saw turned from Pearl street into Maiden Lane. It was going south, and turned the corner towards Broadway. Right after that truck passed this express wagon came down. I guess about the same time the truck went into Maiden Lane the express wagon came down.”

It will thus be seen that there was nothing to obstruct the view of the driver or the deceased. The deceased could have seen the wagon had he looked before he left the sidewalk. The driver saw tlie deceased as soon as be stepped into' tbe street and stopped bis horse within two feet of him as he fell.

There is absolutely no evidence that the deceased was knocked down by the horse or the wagon, and without some proof of that fact the injury received from the fall cannot be attributed to the defendant. If it was received from the fall in the street defendant is not liable, and it is entirely consistent with all the facts proven that it was so received, and no other cause for it appears.

There is nothing to support the conclusion of the jury that the injury was caused by defendant, except guess and speculation.

I think, also, that the evidence shows deceased to have been guilty of contributory negligence. He was not at the street crossing but above it, and could have seen the wagon if he had looked to the south.

Reference is made to an answer made by witness Baker to a question put to him on rebuttal. The question and answer are as follows : “ Q. Did Mr. Richard say, in the presence and hearing of Mr. Macauley at that time, that the horse came on him so quickly that he couldn’t get out of the way ? [Objected to as incompetent and as leading; objection overruled; exception taken.]

“ The Couet.— This is admitted solely as impeaching the witness.

“The "WitNess.— Yes, sir.”

This evidence does not aid the plaintiff’s case. It does not show that the horse or wagon struck the deceased or that the driver was negligent. It is entirely consistent with the fact that deceased slipped on the street in his effort to avoid the wagon, which he had not observed when he started to cross. ■

But the effect of the evidence was limited by the trial court, and we can give it no greater weight than it was permitted to have on the trial.

The judgment should be reversed and there should be a new trial.

Dykman, J., concurred.

Peatt, J.

(dissenting):

This is an appeal from a judgment in favor of the plaintiff entered upon a verdict, also from an order denying a motion for a new trial upon the minutes, etc.

Tbe action was for damages in causing tbe death of plaintiff’s intestate. As to tbe question of freedom from negligence on tbe part of tbe deceased, tbe evidence was sufficient to warrant submission of tbis question to tbe jury.

Tbe express wagon was going at quite a fast rate, of speed; tbe time was between sundown and dark, wbicb, considered in connection with tbe conduct of tbe driver of tbe express wagon, and all tbe circumstances of tbe case, presented sueli a case as to justify a jury in inferring tliat tbe deceased omitted no precaution wbicb a prudent man should have taken to avoid tbe accident.

"While no presumption arises from the mere fact of injury that tbe injured party is free from fault, yet such fact may be established by inferences properly dr'awn from surrounding facts and circumstances. (Galvin v. Meyer, etc., 112 N. Y. 223.)

Tbe main difficulty in tbe case relates to tbe question whether -death was caused by tbe negligence of tbe defendant. Tbe evidence established tbe fact that death was caused by consumption accelerated by tbe injury.

Tbis question is raised by an exception to tbe following expression in tbe charge of tbe judge, wbicb was duly objected to, to wit: “ I charge you that if tbe defendant materially hastened tbe death of tbe deceased, that is a cause of death within tbe meaning of 'this statute, wbicb enables tbe plaintiff to maintain tbis action.”

In effect, if the deceased’s life was materially shortened by tbe negligence of tbe defendant tbe action could be maintained.

At common law, if a person •was killed by another, although about to die, yet tbe slayer was held responsible, and there seems no good reason why tbe same rule should not apply to tbe statute upon which tbis is brought.

If tbe deceased’s life was materially shortened by tbe act of tbe defendant, then death at tbe time it took place must be regarded as due to that cause.

It is true tbe award of damages is a matter more or less of speculation, as tbe jury bad to find bow long tbe deceased would have probably lived in order to estimate tbe amount of pecuniary loss sustained by tbe next of kin, but if tbe ruling as made by tbe judge was correct, there was no other thing to do than to furnish tbe best evidence available and let tbe jury determine tbe result.

The plaintiff proved a reasonable basis for the conclusion that death would not have taken place as soon as it did had it not been for the injury received by the intestate. It is true the intestate had consumption at the time of the accident, but no other cause of death intervened afterwards to cause death, and it is in no wise certain that he might not have recovered from that disease if it had not been for the injury received.

With some hesitation I think the ruling of the judge upon this question was sound.

The question of defendant’s negligence was properly submitted to the jury, and the verdict is supported by the evidence. The evidence was conflicting and the verdict must be taken as conclusive.

The main question in this case, as to cause of death, has not, to my knowledge, been passed upon in this State, and no ease has been referred to by either side that has directly passed upon this question.

The judgment should be affirmed, with costs.

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


author: Brown, P. J.:

text:
    Rosalie Adele Oakley, Respondent, v. John Lyon Gardiner and Another, Appellants, Impleaded with Oliver L. Jones and Others.

      Boundary of territorial jurisdiction between the counties of New York and Kings — boundary of Long Island City.

    The boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low-water line or changed by the construction of piers and docks, and the same rule is applicable to Long Island City, the intention of the Legislature being that the westerly line of the improvement district should correspond to the westerly boundary line of the city, as it should exist at the time of the filing of the commissioners’ map in accordance with the statute.
    Appeal by the defendants, John Lyon Gardiner and another, from an interlocutory judgment, in partition, of the Supreme Court, entered in the office of the clerk of the county of Queens on the 23d day of May, 1893, upon the report of a referee, with notice of an intention to bring up for review on such appeal the order confirming the referee’s report, and also the report of the said referee.
    The real estate which is the subject of this action is situated in Long Island City, and in the year 1888 a portion thereof was sold for the non-payment of assessments levied thereon to pay for certain street improvements. After the commencement of this action the parties entered into a stipulation that a receiver be appointed of the property so sold, with authority to redeem the same, and to borrow upon his certificates the money necessary for such purpose, which certificates were to be a first lien upon the assessed property, and be first paid from the proceeds of the sale thereof.
    Such certificates were issued and the property was redeemed, and the questions presented upon this appeal related to the lien of such certificates. Further material facts are stated in the opinion.

      J. Lcmgdon Ward, for the appellants.

      Thos. P. Wicks, for the plaintiff, respondent.

      JEvarts, Ghoate & Bemcm, for defendants, respondents.
   Brown, P. J.:

The question presented for our decision is whether the pier and land under water upon the northerly side of Nott avenue, and immediately in front of lot 50, is a part of such lot and was subject to the lien of the assessments.

The land under water in front of the lot was granted to the parties-to this, action by the State in December, 1871. The northerly boundary of the improvement district begins at the intersection of the westerly boundary line of the city with a line drawn parallel with Nott avenue and 100 feet northerly therefrom. (Chap. 326, Laws 1874, § 1.)

The westerly boundary of the city is low-water mark on the east shore of the East river. (Chap. 461, Laws 1871, § 1.)

The pier in question was first constructed in 1877, and subsequently reconstructed and enlarged.

The appellaiits contend that the westerly boundary of tlie improvement district is the line of original low-water mark, while the respondent claims that it is the westerly line of the city, which advances into the river as docks, piers and other- improvements are constructed along the water front. It has been repeatedly decided that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low-water line or changed by the construction of piers and docks. (Tebo v. Brooklyn, 134 N. Y. 341, and cases cited.)

And that rule is applicable to Long Island City. ¥e are of the opinion that the Legislature intended that the westerly line of the improvement district should correspond to the westerly boundary line of the city as it should exist at the time the commissioners should, in accordance with the statute, file their map.

On December 6, 1877, the date of the filing of the map, the westerly line of the pier was substantially the same as it is now. The jurisdiction of the city extended to that line, and there was the westerly line of the improvement district.

The case of Mut. Life Insurance Co. v. Voorhis (71 Hun, 117) does not aid the appellants. A principle of public policy and public convenience underlies the decision in Tebo v. Brooklyn and kindred cases. The Voorhis case involved no public question. It related solely to the rights of private individuals, and there was no principle ■of law which could extend the mortgage to lands acquired by the mortgagor subsequent to the execution of the mortgage.

A part of the pier in question lies north of the northern boundary ■of the improvement district, and the appellants claim that such part is, by the judgment, declared to be subject to the lien of the receiver’s certificates. The assessment could not extend beyond a line 100 feet north of the northerly line of Nott avenue, and the receiver’s certificates attach to the same property. But I do not understand the judgment to extend the lien beyond that line.

The twenty-sixth paragraph of the judgment is as follows : “ The holders of certificates * * * have a lien upon the portion of said property lying southerly of a line drawn parallel with Nott avenue and one hundred feet northerly therefrom * * * including the dock or pier extending from said property into the East river, together with all the right, title and interest of the parties hereto in, to and over the lands under and between high and low-water mark of the East river opposite the same and southerly of the aforesaid line drarnn jpa/rallel with the northerly side of Nott avenue a/nd one hundred feet northerly therefrom.” The description. is qualified by the last sentence, and the lien is limited to that part of the pier and land under water south of the north line of the improvement district.

The same qualification appears in the twelfth paragraph of the judgment declaring the extent of the lien of the assessments.

If, however, the form of the expression used is regarded by either party as equivocal or uncertain it can be corrected by motion made to the Special Term.

The judgment is affirmed, with costs to be paid by the appellants, with leave to either party to move at Special Term to make more definite the provision of the judgment relating to the extent of the lien of the certificates.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs to be paid by appellants, with leave to either party to move at Special Term to make more definite the provisions of the judgment relative to the lien of the receiver’s certificates.


text:
    Amelia F. Baker, Respondent, v. Eliza A. Mott and Another, Appellants.
    Land bounded upon a road — the grantee acquires a right of way over the same— condition subsequent, when created by deed — provision in a deed construed to be an exception and not a condition — two partition deeds construed together.

    "When land is conveyed by a deed describing it as bounded upon a road, the fee of -which is vested in the grantor, and which is mentioned or referred to in the deed, the grantee acquires the right of way over the road, and such rule is not applicable to city and village lots only; it has, however, no reference to the dedication of land as a public highway, but proceeds upon the construction of the deed.
    A conveyance by which lands are bounded upon a street, laid out or existing or designated upon a map referred to, constitutes, as between the grantor and grantee, and as to the lots conveyed, an irrevocable appropriation of the spaces designated as streets or ways appurtenant to the land conveyed.
    To create a condition subsequent in a deed the intention of the party thereto must be clearly expressed in some words importing that the estate is to depend upon a contingency provided for. i

      A deed contained the following provision after the habendum clause:
    “And upon this further condition, that the party of the second part apd his heirs and assigns shall permit and allow the parties of the first part and their heirs to have free access with teams, at all times, to and from the waters of Hemp-stead harbor by the road now and heretofore used through his land, for the purpose of loading and unloading vessels, and also to reach that portion of the shore contiguous to such waters belonging to the parties of the first part, for the purpose of carting to and from the same.”

      Held, that such provision did not constitute a condition subsequent;
    That the legal effect thereof was to annex the right of way to the land of the grantor, and was an exception or reservation in his favor;
    That such easement was not personal to the grantor, but was annexed to the estate and passed to his grantees.
    Where a piece of property is partitioned by two deeds, such deeds must be read and construed as one instrument.
    Appeal by tbe defendants, Eliza A. Mott and another, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Queens on tbe lltb day of September, 1893, upon tbe decision of tbe court rendered after a trial at the Queens County Special Term.

      Henry A. Monfort, for tbe appellants.

      Frederick Baker, for tbe respondent.
   Brown, P. J.:

This action was brought to establish plaintiff’s right to a way over defendants’ land, and to have certain obstructions, placed therein by tbe defendants, removed therefrom.

There is no dispute as to tbe facts. Tbe parties own adjoining lands lying on tbe northeasterly side of a highway called tbe Sands Point road, and tbe lane in dispute extends from such highway in substantially a direct line to tbe shore of Hempstead harbor, and bounds plaintiff’s lands on tbe southeast.

Tbe defendants are devisees of Benjamin Mott, from whom plaintiff, by three conveyances, derives title to all her land except one plot designated as No. 4.

In two of tbe deeds from Benjamin Mott tbe plaintiff’s lands are described as running to tbe northwesterly sido of a certain lane -» -x- running from Hempstead harbor to tbe highway from

Sands Point to Roslyu.” And in tbe third deed tbe lane itself is made tbe southeasterly boundary of tbe land conveyed.

Prior to tlie execution and delivery of the two deeds first mentioned, and which conveyed to the plaintiff plots 2 and 3, Benjamin Mott delivered to the plaintiff a map of each of said plots showing the lane thereon, and said deeds were thereafter drawn in accordance with said maps.

We are of the opinion that the rule, that when land is-conveyed by a deed describing it as bounded upon a road, the fee of which is vested in the grantor, and which is mentioned or referred to in the deed, the grantee acquires a right of way over the road, is applicable to the facts here presented.

Tbe appellants contend that this rule is applicable only to city and village lots. It has, however, no such limitation, and the eases cited by the appellants do not so decide.

In Smyles v. Hastings (22 N. Y. 211), a plot of about 400 acres was divided into nine lots, and the right of way was claimed to have attached to a lot fifty-seven acres in extent. The easement was claimed to arise from the designation on a map of a contemplated road and a sale in accordance with and by reference to the map. The court held that a right of way over the road passed as a part of the grant as an easement appurtenant to the lot conveyed.

In neither of the other cases cited is there any intimation of such " a limitation upon the rule as appellants claim.

The doctrine has no reference to the dedication of the land as a public highway, but proceeds upon a construction of the deed; and a conveyance by which lands are bounded upon a street laid out or existing or designated upon a map referred to, is held to constitute as between grantor and grantee and as to the lots conveyed an irrevocable appropiiation of the spaces designated as streets or ways appurtenant to the land conveyed.

We have in this case the maps showing the road, and the fact that the land conveyed was bounded upon it. The plaintiff thus acquired, as against Benjamin Mott and his successors in title, a right of way over the lane in question.

This right clearly extended from the land conveyed to the Sands Point road. Whether it also extended to the harbor it is not necessary to determine, as the right to pass to the harbor exists under the conveyance of lot No. 4, which will be now referred to.

The land owned by the parties to this action is a part of a’"farm which prior to 1850 was owned by Henry Mott, who devised the same to his two sons, Adam and Benjamin.

In 1860 the sons partitioned the farm between them. Adam and his wife quit-claimed to Benjamin ninety acres, which include the defendant’s lands, and parcels 1, 2 and 3, owned by plaintiff.

Benjamin and his wife quit-claimed the balance of the farm to Adam, including parcel 4, owned by plaintiff. Subsequently the executors of Adam Mott conveyed parcel 4 to Marianna "Wilson, who thereafter conveyed it to the plaintiff.

In the deed from Adam to Benjamin Mott, following the habendum clause, is the following provision: “ And upon this further condition, that the party of the second part and his heirs and assigns shall permit and allow the parties of the first part and their heirs to have free access with teams, at all times, to and from the waters of •Hempstead harbor by the road now and heretofore used through his land, for the purpose of loading and unloading vessels, and also to reach that portion of the shore contiguous to such waters belonging to the parties of the first part, for the purpose of carting to and from the same.”

The road there referred to is the lane in question, and it bounds parcel 4 on the southeast.

There is another condition in this deed relating to a road through a wood lot referred to in the findings, but it is not of importance to the decision of this case; and in this connection it may be stated that the thirteenth finding of fact, to which appellants excepted, is not essential to the judgment, and is not, therefore, referred to.

The appellants claim that the provision of the deed quoted is a condition subsequent. If such was its character it would not aid them. The estate vested in Benjamin Mott, and the right to re-enter for breach of the condition would be in Adam’s heirs. Until that right is exercised the estate would remain in the grantee. The defendants could not avail themselves of a breach of the condition. But the provision is not a condition subsequent. To create such, the intention of the parties to the deed must be clearly expressed in some words importing that the estate is to depend upon a contingency provided for. (Lyon v. Hersey, 103 N. Y. 264.)

No such intention appears in the deed in question. On the contrary, quite the opposite was .intended. The two deeds partitioning the farm must be read and construed as if one instrument.

The intention was to divide the farm and give to each grantee a way out to the public highway and to the harbor. Access to the highway was to be had over the road reserved, through the wood lot and to the harbor over the lane in question.

The legal effect of the condition was to annex the right of way to the land set off to Adam. It was an exception or reservation in his favor. (Mendell v. Delano, 48 Mass. [7 Metc.] 116 ; Bowen v. Conner, 60 id. [6 Cush.] 132; Rexford v. Marquis, 7 Lans. 249.)

The easement was not personal to him, but was annexed to the estate, and passed to the plaintiff upon her purchase of the land.

The conveyances between Adam and Benjamin Mott were absolute, and it was not intended or contemplated that the estate conveyed should be dependent upon any condition whatever.

The right of way to the Sands Point road does not appear to be presented upon the pleadings.

The complaint alleges a right of way from plaintiff’s lands to the harbor, and its obstruction by the defendants, and the relief demanded is that plaintiff be adjudged to own and possess a way over said road to Hempstead harbor, and that defendants be ordered to remove all obstructions therefrom.

The judgment, however, adjudged that a right of way exists from the Sands Point road to the harbor, and as no point is made that this is in excess of the relief demanded in the complaint, we have considered the question as it is presented in the evidence and findings of the court.

The judgment is affirmed, with costs.

Pratt and DykmaN, JJ., concurred.

Judgment affirmed, with costs.