author: Learned, P. J. :

text:
    WILLIAM S. KENNEDY, as Receiver, etc., Appellant, v. JACOB C. WOOD and Others, Respondents.

      Postponement of trial — what conditions may he imposed.

    Upon an application by the plaintiff to postpone the trial of an action it was ordered that the trial be postponed, upon condition that the plaintiff pay to the defendants’ attorneys the sum of fifty dollars, as part indemnity to the defendant JamesM. McDonnell, assignor, for his costs and expenses in preparing for the trial of said action, and that, in case of non-payment at the time named in the order, the defendants might, without further application to the court, enter an order dismissing the plaintiff’s complaint, with costs.
    Upon an appeal from this order:

      PIeld, that section 8255 of the Code of Civil Procedure limits the power of the court, on adjourning a trial, to requiring the party applying for the adjournment, as a condition therefor, to pay ten dollars costs, the fees of witnesses and the taxable disbursements rendered ineffectual by the adjournment.
    That an appeal lies to this court, if the conditions of an adjournment which are imposed are not legal, and that this right to such appeal was not waived by the fact that the aggrieved party, to prevent a dismissal of his complaint, paid, under protest, the amount illegally imposed upon him.
    That the order in this case should be modified so that the postponement should be conditional upon the payment of ten dollars costs and of the fees of witnesses, and of the other taxable disbursements made or incurred which were rendered ineffectual by the adjournment.
    Appeal by tbe plaintiff from so reaicli of an order granted at tbe [Rensselaer Circuit and Special Term, which was entered in tbe office of tbe clerk of tbe county of [Rensselaer on tbe 22d day of May, 1889, as directs that tbe plaintiff pay to tbe defendants attorney, as a condition of postponement of trial, tbe sum of fifty dollars as part indemnity to the defendant James M. McDonnell, assignee, for bis costs and expenses in preparing for tbe trial of tbe action, said plaintiff to pay said fifty dollars on or before Monday, May 27, 1889, at 10 a. m., and in case of tbe non-payment thereof, as required, the defendant may enter an order herein dismissing tbe plaintiff’s complaint, with costs, without further application to the court; that said postponement was granted upon the understanding that no further application to postpone the trial should be made by plaintiff on account of tbe absence of a specified witness.

      Charles 1. Baker and Henry A. Kvng, for the appellant.

      JCmg db Rhodes and Cha/rles H. Patterson, for the respondents.
   Learned, P. J. :

We are of the opinion that section 3255 of the Code of Civil Procedure limits the power of the court, on adjourning a trial, to requiring, as a condition, the payment of ten dollars costs, the fees of witnesses and taxable disbursements rendered ineffectual by the adjournment. (Hall v. Dwinell, 10 Wend., 628; Noxon v. Bentley, 6 How., 418; Hand v. Burrows, 15 Hun, 481.) The sum imposed in this case was fifty dollars for costs and expenses in preparing for trial. We cannot construe this as meaning ten dollars costs and forty dollars witnesses’ fees and taxable disbursements. That is plainly not the meaning. And we think that the court has no power to impose a gross sum as a condition. Of course, the parties may agree on what the witnesses’ fees and the taxable disbursements are. Otherwise they must be adjusted in the ordinary way. We have no doubt that an appeal lies to this court if conditions of adjournment are imposed which are not legal. Nor is the right to such appeal waived by the fact that the aggrieved party, to prevent a dismissal of his complaint, has paid the illegal amount under protest. He could do no otherwise with safety to himself.

As to the other part of the order, viz., that it was on the understanding that no further application, etc., should be made, we do not know, from the language, whether this was not an agreement volunteered by the plaintiff’s counsel to induce the adjournment. The language is not so clear as to put this beyond question.

The order must be modified so that the condition shall be on the payment of ten dollars costs, and of fees of witnesses and other taxable disbursements, made or incurred, which are rendered ineffectual by the adjournment.

On the adjustment of these witnesses’ fees and taxable disbursements the defendants must repay any part of the fifty dollars in excess of the sum thus allowed.

No costs of this appeal to either party.

Putnam and Fish, JJ., concurred.

Order modified so that the condition shall be the payment of ten dollars costs, and of fees of witnesses and other taxable disbursements, made or incurred, which are rendered ineffectual by the adjournment. On the adjustment of the witnesses’ fees and taxable disbursement the defendant must repay any part of the fifty dollars’ in excess of the sum here allowed. No costs of appeal.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. OSCAR F. LOCKWOOD v. THE TRUSTEES OF THE VILLAGE OF SARATOGA SPRINGS.

      Honorably discharged Union soldier — his right, under chapter 464 of 1887, to a preference in the appointment to public office, considered.

    Upon a motion for a peremptory writ of mamda/mus, requiring tlie trustees of the village of Saratoga Springs to appoint the relator to the office of superintendent of public works of the village of Saratoga Springs, it appeared that at a meeting of the defendants on May 6, 1889, called to elect a superintendent, the relator appeared and made application for the appointment in writing, stating that he was an honorably discharged Union soldier and entitled to a preference in said appointment, by virtue of the provisions of cliaptei; 464 of the Laws of 1887, and presented his certificate of discharge, but offered, before the trustees, no proof, except by affidavits, of his capacity for the position.
    The trustees, in their answering affidavits, stated that the office of superintendent of public works of the village is one of very great importance; that it required very great ability and business capacity and experience; that they considered the application of the relator and his claim to the office, under the law of 1887, and the applications of other candidates, and that no proof was offered as to the fitness of either of the candidates for the office; that the majority of the trustees were well acquainted with the relator and with his qualifications for the appoint, ment, and also with the qualifications of the other candidate; that they came to the conclusion that the relator was not competent for the position of superintendent of said village, and that one Ryall was, and that, therefore, in good faith, and not intending to violate the provisions of chapter 464 of 1887, they appointed Ryall to the office, who was duly qualified, and at the time of the answer was performing the duties of the office.
    The act under which the relator claimed the office in question provides that “honorably discharged Union soldiers shall be preferred for appointment and employment.”

      Held, that the act should be construed to require that where two or more persons apply for an office, one of whom is an honorably discharged Union soldier, and all of whom are equally qualified, the soldier should be preferred, but not to require the soldier’s appointment where the soldier shall not be as well qualified lor the office as one of the others.
    That the decision of the trustees upon the question of fact as to the relator’s qualification for the office, if wrong, could not be corrected in this proceeding.
    That as the law conferred upon the trustees the power of selecting their own superintendent and of judging of his qualification for the office, and as there was no evidence that they had not acted in good faith in making their selections that such selection could not be set aside in this proceeding.
    Appeal by tlie relator from an order made at a Special Term, held in Saratoga county June 3, 1889, denying a motion made by the relator for a peremptory writ of mandamus requiring the defendants to appoint the relator to the office of .superintendent of public works of the village of Saratoga Springs, which order was entered in the office of the clerk of the county of Saratoga..
   The following is the opinion delivered by Putnam, J., at Special Term :

Putnam, J.

Relator presents his affidavit, in which he testifies that he is fully competent to perform tlie duties of said office. At a meeting of the defendants on May 6, 1889, called to elect a superintendent, he appeared and made application for the appointment, in writing, stating that he was an honorably discharged Union soldier who served in Company D, Seventy-seventh Regiment, New York State Yolunteers, and entitled to a preference by virtue of the provisions of chapter 464, Laws of 1887, to said appointment, and he-presented his certificate of discharge. ITe offered no proof of his capacity for the position before the trustees, but his affidavit states that-no question was raised in that regard. He presents, on this application, his own affidavit and that of nine other citizens, that he is well qualified to perform the duties of the office of superintendent. None of these affidavits, however, speak of the relator’s fitness to perform the duties of the office as compared with Ryall, the person who was appointed by the trustees.

The trustees, in their answering affidavits, in substance, state: That the office of superintendent of public works of the village is of very great importance; it requires very great ability and business capacity and experience; that • officer has charge, under the ti’ustees, of the streets, sewers, tax lists, highways, public works and affairs of said village; that they had considered the application of the relator and his claim to the office, under the law of 1887, and the applications of the other candidates; that no proof was offered as to the fitness of either of the candidates for the office. The majority were well acquainted with the relator and his qualifications for the position, and the qualifications of the other candidates; that they came to the' conclusion that the relator was not competent for the position of superintendent of said village, and that Ryall was, and that, therefore, in good faith, and not intending to violate the provisions of chapter 464 of the Laws of 1887, they appointed Ryall to the office, who duly qualified and at this time is performing the duties of the office.

The provisions of the law of 1887 should be observed and faithfully carried out. It voices the public feelings of all citizens that the survivors of the brave soldiers, to whom we are indebted for the preservation of our institutions, should be remembered and preferred in the distribution of public office. My appreciation of this fact, however, as well as my knowledge of the estimable character and meritorious services of the relator, will not allow me to interfere by mcmdamus with the reasonable discretion of the board of trustees of the village of Saratoga Springs in selecting a superintendent, if it is, in fact, a case where the law confers upon the trustees a discretion, and it appears, from' the papers, that they have exercised that discretion in good faith. The trustees having acted, as they testify in good faith, and decided that the relator was not qualified for the office, and that Ryall was, and having appointed Ryall, the law having imposed upon them the right and the duty to make the appointment, is this court, under the well-settled doctrine as laid down in many cases, authorized to review the action of the trustees and direct them to make another appointment? On carefully examining the affidavits and papers presented to me, and considering the arguments and points of counsel, I find great difficulty in overruling the action of the trustees in this case. Ryall, the party appointed by the trustees, has qualified and is now acting as superintendent ; he is not a party to this proceeding, and no application is made for an order compelling the trustees to remove him, and it is conceded, by counsel for the relator, that any order made hero would not affect his title to the office. If I grant the order asked for, therefore, the effect would be the appointment by the trustees of two superintendents. Any proceeding to remove Ryall would have to be a separate and subsequent proceeding. The authority of the trustees to appoint a superintendent is under chapter 257, Laws of 1874, and the several acts amending the same. The law only gives the trustees power to appoint one superintendent. If I compel them to appoint two I compel them to do an act beyond their power. I think that a mandamos cannot, or, at least, should not, be granted to compel the appointment of the relator unless coupled with an application to remove Ryall. That the order (if granted) to appoint relator should also, and at the same time, command the trustees to displace the present superintendent. Before such an order could be granted, however, Ryall would have to be made a party, and wordd have a right to appear and be heard in the matter. It is possible that the trustees' have no right to remove Ryall, he being regularly appointed by them, except for some cause occurring subsequently to his appointment. (Laws of 1874, chap. 257, § 3.) If so, if Ryall cannot be removed, this would, in my judgment., be a conclusive objection to the granting of this motion. (People v. Contracting Board, 27 N. Y., 381, 382.)

The act under which the relator claims the office in question (Laws of 1887, chap. 464), provides that “honorably discharged Union soldiers shall be preferred for appointment and employment.” It means, as I construe it, that where two or more apply for an office, one of whom is a discharged Union soldier, and all are equally qualified, the soldier shall be preferred, but not where the soldier is not equally qualified for the office as one of the others.

There are degrees of fitness for such an office as the one in question. One candidate might barely be able to perform its duties in a reasonably proper manner, and another might have superior qualifications and be able to do the work much better. In such a case the appointing power, under the law, would not be bound to appoint the former, although a discharged Union soldier.

The trustees, when they met on May sixth, were charged with the duty of deciding the question of fact: "Was the relator qualified to perform the very arduous and important duties of superintendent of the village? Was he qualified equally with the other candidates ? The law cast upon them the power and the duty of deciding this question. They had to decide it, and they should have acted, in deciding it, honestly and in good faith. They each, in their affidavits, testify that they did decide the question in good faith and with the provisions of the law of 1887 in view, and with intent to obey the law. I do not think I would be justified in holding that they did not act in good faith; that they have not honestly and fairly intended to do their duty as they have testified. If they have erred in their conclusion, it does not at all, in my view, affect the validity of their action. Judges and jurors often reach erroneous conclusions, but the error cannot be corrected by mandamus ; the only remedy is by appeal when an appeal lies.

In my judgment the trustees having decided the matter that the law gives them the. right to pass upon, their decision cannot be overruled by the Supreme Court.

It is a universal rule in respect to all subordinate tribunals clothed with the exercise of judgment and discretion, that they cannot be compelled by mandaenus to decide in any particular way. (People ex rel. Francis v. Common Council, 78 N. Y., 33; People ex rel. Banks v. Board of Education, 2 Abb. [N. S.], 177; People ex rel. Dietz v. Easton, 13 id., 161; People ex rel. Belden v. Contracting Board, 27 N. Y., 381; People ex rel. Gaige v. Reardon, 49 Hun, 430; People ex rel. Equitable Life Assurance Society v. Chapin, 103 N. Y., 635; People ex rel. Millard v. Chapin, 104 id., 100; People ex rel. Opdyke v. Brennan, 39 Barb., 651; Howland v. Eldredge, 46 N. Y., 457.) Although the trustees were bound to prefer a soldier, they were not bound to appoint one they deemed incompetent, or one where the other candidate possessed superior qualifications for the office. The law conferred upon them the power and duty of deciding as to the qualifications of the relator and his fitness as compared with Ryall; they have passed upon the question against the relator, and I think the decision is final, whether right or wrong. In People ex rel. Equitable Life Assurance Society v. Chapin (39 Hun, 230) the court held that mandamus was not a remedy for erroneous decisions. It cannot be addressed to a judicial tribunal to require it to decide in a particular manner.” And the court referred to the case of People ex rel. Francis v. Common Council (78 N. Y., 33), which holds, among other things: “ Where the duty of selecting the person to be employed is imposed by law upon the municipal body, and the question whether they possess the requisite qualifications is one of fact'to be determined by it, no particular mode of determination being provided by law,- and said body has exercised the power and made the selection, its action cannot be reviewed by mandamus, nor can it be compelled by that proceeding to appoint particular persons, on their allegations that they, in fact, and not the persons actually selected, possess the prescribed qualifications. Where the subordinate body is vested with power to determine a question of fact, the duty is judicial, and it cannot be compelled by mandamxbs to decide in a particular way, however clearly it be made to appear what the decision ought to be.” (See, also, 103 N. Y., 635; 104 id., 100, supra.)

The matter of the application of the relator for the appointment was passed upon by the trustees at the meeting of May sixth. They knew he was a soldier, but had no evidence of his fitness or unfitness for the oifice. he desired. But the trustees testify that they knew him and his qualifications, and also the qualifications of the other candidates. They were obliged to pass upon this matter then, and with the evidence before them they did pass upon the question and found against the relator. I am of the opinion tfiat their finding upon the question of fact, as to the relator’s qualifications for the oifice, if wrong, cannot be corrected in this proceeding.

Other questions were raised and discussed before me, but, in the view I have taken of the case, it is not necessary for me to consider or pass upon them. I have been referred to a decision by Judge Forbes in the case of the People ex rel. Stevens v. Bardin. It is sufficient to say that in that case the fitness of the relator for the position he desired, as well as the fact that he was an honorably discharged Union soldier, was conceded and assumed by the judge in his opinion. No question was raised, as appears by the opinion, as to the qualifications of Stevens for the office he desired ; hence that case is entirely unlike the case before ns. On the whole, I am of the opinion that I have not the power to grant this application. The law has conferred upon the trustees the power of selecting their own superintendent, and of judging of his qualifications for the office. I am unable to find, from any evidence before me, that they have not acted in good faith in selecting the present incumbent. I think that their selection cannot be overruled in this proceeding I, therefore, deny the motion, but without costs.

Pdwa/rd J. Maxwell, for relator, appellant.

J. L. Henning and L. B. Pike, for the village, respondents.

Present — Learned, P. J., and Fish, J.

Order affirmed, with fifty dollars costs and disbursements on opinion of court below.


author: Learned, P. J.:

text:
    OSCAR SMITH, Appellant, v. DWIGHT L. CREGO and RUSSELL CREGO, Respondents.
    Bnidence— statements in the minutes of a court — a communication between attorney and client, when bothpa/rties to the action are present, is not confidential— admissions, contradiction of.

    In an action brought on a note made by Dwight L. Crego, indorsed by Russell Crego, in which the defense was that it was given under an agreement to comXiound a felony, it appeared that Dwight L. Crego had been in the employment of the Wheeler & Wilson Manufacturing Company, had been charged with embezzling money and had been arrested, and was still under arrest when the note was given.
    Upon the trial the plaintiff offered in evidence the affidavit and warrant, with the minutes of the committing magistrate, to the admission of the following statement in which the defendant objected: “Prosecuting attorney stated that all money due-the company had been refunded, and the prosecution paying expenses, the court admitted defendant to bail in five hundred dollars.”
    A request was made by the plaintiff to the court to charge that the plaintiff was not to be prejudiced, or the jury to infer that there was such agreement or understanding, from the statement in the justice’s minutes, that the prosecuting attorney stated, etc. The court charged the jury: “You are to take into account all that, was received before you and give it such weight as in your judgment it is entitled to,” to which the defendant excepted.

      Held, that the plaintiff was entitled to have the jury instructed as he had requested.
    The defendant, in support of his defense, testified that he and one Storah, an agent of the company, went to the office of an attorney, who, as the defendant testified, was the plaintiff’s lawyer. The plaintiff then called the attorney, who testified that ho was present when the note was executed, and that the plaintiff and Storah and the defendant Russell were present at his office before the execution of the note, and upon his being asked by the plaintiff to state the conversation which then took place, an objection was taken by the defendant under section 885 of the Code of Civil Procedure, which was sustained.

      Held, that as the attorney was the plaintiff’s attorney, and the plaintiff could, and did, waive the privilege by calling him to testify, the court erred in excluding his answer.
    That as both parties to the agreement were present at the conversation and as, under the common-law rule as to privilege, communications to an attorney were not confidential when both parties were present, and as section 836 of the Code of Civil Procedure, though it does not use the word “ cohfidential,” is intended to be only a statement of the common law, the attorney should have been allowed to testify to the conversation inquired about.
    About four months after the execution of the note a letter was written by the plaintiff to the defendant containing these words: “I went to Schenectady yesterday morning and arranged, through the district attorney, to drop Dwight’s case.” The plaintiff having testified that he did not arrange with the district attorney to drop the case that was then pending, he was asked: “ Explain what the language (above quoted) refers to.” Under objection by the defendant this evidence was excluded, and the justice in his charge, commenting on this letter, said that the law prevented the plaintiff from stating what he intended by the letter; that the law presumed that he intended what the letter imprinted on its face.

      Held, that this letter was not a contract, but a mere admission, not any more binding because it was in writing, and that the plaintiff might disprove the truth of the statement and show to what his words referred.
    Appeal from a judgment rendered at tlie Albany Circuit, after a verdict in the defendant’s favor, against the plaintiff, which judgment was entered in the office' of the clerk of Albany county on the 24th day of October, 1888, and also from an order of the court which was entered in the said clerk’s office on the 24th day of October, 1888, which denied a motion of the plaintiff for a new trial, made upon the minutes of the justice presiding at the trial, upon exceptions and oii tlie ground that the verdict was contrary to the evidence and to the law of the case.

      Mark Cohn, for the appellant.

      Norton Chase, for tlie respondents.
   Learned, P. J.:

This action is on a note made by Dwight L. Crego and indorsed by Russell Crego. The defense is that it was given on an agreement to compound a felony. Dwight L. had been in the employ of the Wheeler & Wilson Manufacturing Company, and had been charged with embezzling money. He had been arrested and was still under arrest when the note was given. On the defense above stated the testimony of the plaintiff and that of the defendant are in conflict. The plaintiff offered in evidence the minutes of the magistrate with the affidavit and warrant. The defendant objected to a part of the minutes as follows: “ Prosecuting attorney stated that all money due the company had been refunded, and the prosecution paying expenses the court admitted defendant to bail in $500.” At the close of the case the plaintiff requested the court to charge that the plaintiff is not to be prejudiced, or the jury to infer that there was such agreement or understanding, from the statement in the minutes of the justice that the prosecuting attorney stated, etc. The court in reply said to the jury: “You are to take into account all that was received before you and give it such weight as, in your judgment, it is entitled to.” The defendant excepted. Now, the minutes of the justice were admissible, and, therefore, this statement was before the jury. But it was merely the statement of the magistrate of what was said by the prosecuting attorney. It was no evidence against the plaintiff of any agreement or understanding as to compounding the felony. Yet the jury might, under this instruction, have understood that this statement of the magistrate had some weight in supporting the defense. We think that the plaintiff was entitled to have the jury instructed as he requested. The defendant says that the statement was harmless because the money was refunded in fact. But the manner in which this statement is made in the minutes seems to indicate that it was inserted as a reason for putting the bail at a small amount, and thus to afford some evidence that there was an agreement to compound the felony.

The defendant, in support of his defense, testified that he and one Storah, an agent of the company, went to the law office and papers were drawn up ; that law office was the office of Mr. Thompson, ivlio, as the defendant testifies, was plaintiff’s lawyer. The plaintiff then called Mr. Thompson, who testified that he was present when the note was executed, and that plaintiff and Storah and defendant Russell were present at his office before the execution of the note. He was then asked by the plaintiff to state the conversation which then took place. This was objected to under section 835 of the Code, and was excluded; to which the plaintiff excepted. Now, Thompson was not attorney for Russell Crego or for Dwight L. Crego. He was plaintiff’s attorney, or, as is said in one place, the company’s attorney, which was practically the same thing.

As he was Smith’s attorney, Smith could waive the privilege. (Sec. 836.) Anri he did waive it by calling on Thompson to testify to the conversation. (In re Coleman, 111 N. Y., 220.) Furthermore, both parties to the agreement were present at the conversation, and, under the common-law rule as to privileges, communications to an attorney were not confidential when both parties were present. (Whiting v. Barney, 30 N. Y., 330; Britton v. Lorenz, 45 id., 51.) Section 836, though it does not use the word confidential, is intended to be only a statement of the common-law rule. (See note to the section.) So far, then, as appears in the case, it seems to us that Thompson should have been allowed to testify to the conversation inquired about.

About four months after the execution of the note a letter was written by plaintiff to defendant containing the words : “ I went to Schenectady yesterday morning and arranged, through the district attorney, to drop Dwight’s case.” The plaintiff testified that he did not arrange with the district attorney to drop the case that was then pending. He was then asked: Explain what, the language (above quoted) refers to.” This was objected to and excluded. The plaintiff excepted, and the learned justice in his charge, commenting on this letter, said that the law prevented the plaintiff from stating what he intended by the letter; that the law presumed that he intended what the letter imprints on its face. Now, this rule would be quite correct if applied to a written contract, or to a writing on which another party had relied in his action. But this letter was a mere admission, not any more binding because it was in writing. "Whatever contract the parties entered into had been made long before, and this letter was only a statement of what plaintiff had subsequently done. He might disprove the truth of the statement; he might, if the fact were so, show to what his words referred. Suppose (merely to illustrate) that Dwight ” referred to some person other than Dwight L. Crego, the plaintiff could have shown this. We think, then, that the. witness should have been allowed to answer the question.

It is plain, in this case, that the note was given principally to settle a large part of the moneys which Dwight L. Crego owed the company. It was right that he should pay or secure these moneys and it was proper that his father should assist him in restoring to the company what he had taken from it. And the father might rightfully do this in the hope that the burden which would thus fall on an innocent man would be a sufficient punishment for the crime. (Hatch v. Collins, 34 Hun, 314.) Of course, an actual agreement to compound must not be made, but full compensation to the wronged party is a duty and is not illegal. In the conflict of evidence in this case, where the plaintiff fully denies the alleged agreement, the exclusion of any proper evidence bearing on the merits is especially material, and may have operated to defeat the plaintiff’s claim.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide the event.

Landon, L, concurred.

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


author: Learned, P. J.: Ingalls, J.

text:
    LEVI S. NOYES, Appellant, v. WILLIAM TURNBULL, Respondent, Impleaded with SILAS H. POMEROY and CHARLES ATWATER.

      Business conducted, by direction of a testator, by trustees named in his will — liability of a trustee who has retired from the trust for debts subsequently contracted.

    TlieodoroL. Pomeroy, who liad for some years prior to his death, carried, on a manufacturing business in Massachusetts with his son, Silas H. Pomeroy, as his partner, under the firm name of “ L. Pomeroy’s Sons,” made a will by which he gave all this manufacturing property to three trustees, William Turnbull, Silas H. Pomeroy and Charles Atwater, in trust, to continue and carry on said business until his son, Theodore L., should arrive at twenty-one years of age, incurring liabilities on account of the estate, exercising the same power as the testator exercised, and paying over during the continuance of the trust such portion of the property to Silas II. and Theodore L. as, in their judgment, the administration of the trust would permit.
    The trustees accepted the trust and carried on the business under the name of “L. Pomeroy’s Sons,” and in 1882 and 1883 bought from John Consalus wool to be used in the said business. It appeared that prior to the death of Theodore L. Pomeroy the firm had also bought of Mr. Consalus, and that Consalus had no further dealings with L. Pomeroy’s Sons from March 13,1883, to August 28, 18S6 ; that in January or February, 1887, he sold wool to “L. Pomeroy’sSons,” for which he received notes dated, respectively, May 23, 1887, and June 9, 1887, signed “L. Pomeroy’s Sons,” which notes had been transferred to the plaintiff and had not been paid.
    Some time prior to May, 1885, an action was brought by Turnbull and Atwater, in Massachusetts, asking to be relieved from the trust and that new trustees be appointed. Under an agreement of the parties a decree was made which authorized Silas H. Pomeroy to act as sole trustee, and directed that the business should be so conducted as to create no liability on the part of the plaintiffs, as trustees, and that they were not to be liable for any debt incurred by him, as trustee, and made by “ L. Pomeroy’s Sons,” or by Silas H. Pomeroy, in that name, and that as soon as William Turnbull & Co. had received their mortgage for a balance due them, and Silas H. had paid or renewed outstanding paper of L. Pomeroy’s Sons, the plaintiffs were to be discharged as trustees.
    Prior to the time of this decree the trustees used for correspondence in business-matters paper with the following letter-heads: “ William Turnbull, Charles Atwater and S. Harris Pomeroy, Trustees of L. Pomeroy’s Sons, Pittsfield" Mass.;” all before L. Pomeroy’s Sons being in red ink. After the decree, letter-paper was used with the heading: “L. Pomeroy’s Sons, Pittsfield, Mass., S H. Pomeroy, Trustee; ” with which last-mentioned letter paper S. H. Pomeroy had corresponded with Consalus prior to the purchase for which the notes in question were given.
    It was claimed by the plaintiff that Turnbull was liable on the principle that a retiring partner will be held liable for subsequent purchases made of a party with whom the old firm had previously dealt, and who had not been notified of the retirement.

      Held, that the three trustees were never partners.
    That their rights were very different from those of partners in the respect that they had no beneficial interest in the property; that they were joint tenants and npt tenants in common; that on the death of one of the trustees his representatives would have no interest in the trust estate, and that the trustees could not voluntarily relinquish the trust.

      Qucere, as to whether or not all the three trustees were personally liable to Consalus for purchases made prior to the decree.
    That, even if Silas H. Pomeroy, who made the purchases prior to the making of the decree, was personally liable, it would not follow that Turnbull was also liable.
    That the discharge of Turnbull from his trust under the decree did not, as was claimed by the plaintiff, bear any resemblance to the retiring of a partner from a firm.
    That a court- of equity had special power over all express trusts and might remove a trustee, even against his will.
    That, considering the change in the letter heading and the number of years that had elapsed between the purchases made before the decree and those made thereafter, a judgment in favor of the defendant Turnbull should be affirmed. (Ingalls, J., dissenting.)

      Appeal by the plaintiff from a judgment in favor of the defendant William Turnbull, entered upon the trial of this action, at a Special Term held in Saratoga county, in the office of the clerk of Saratoga county on January 31, 1889.
    Theodore L. Pomeroy had for some years prior to his death carried on a manufacturing business in Massachusetts, with his son, Silas H. Pomeroy, as his partner, under the firm name of “ L. Pomeroy’s Sons.” Tie died in September, 1881, having made his will, which was duly proved in that State, in which he resided. By that will he gave all this manufacturing property (which he seemed to consider belonged to himself solely) to three trustees, William Turnbull, Silas H. Pomeroy and Charles Atwater,.in trust, to continue and carry on the said business until his son, Theodore L., should arrive at twenty-one, incurring liabilities on account of the estate, exercising the same power which the testator exercised, and paying over, during the trust, such portion of the profits to Silas and Theodore L. as, in their judgment, the administration of the trust would permit.
    The trustees accepted the trust, and in carrying on the business used the name “ L. Pomeroy’s Sons.”
    In 1882 and 1883 the trustees bought from John Consalus wool to be used in the said'business, and prior to the death of Mr. Pomeroy the firm of “L. Pomeroy’s Sons had also bought wool of Consalus. But Consalus had no dealings with “ L. Pomeroy’s Sons ” from March 13, 1883, to. August 28, 1886.
    Sometime prior to May, 1885, an action was brought by Turnbull and Atwater in the Supreme Judicial Court of Massachusetts against Silas IT. Pomeroy and others, interested in the estate of Theodore Pomeroy, deceased. In the bill of complaint therein the plaintiffs, for reasons therein given, asked to be released from the trust and that new trustees be appointed. Thereupon, May 18, 1885, an agreement in that action was made between the parties. And subsequently, June 1, 1886, a decree was made by the said court. By this decree Silas H. Pomeroy was authorized to act as sole trustee; the business was to be so conducted as to create no liability on the plaintiffs as tnistees, and they were not to be liable for any debt incurred by him as trustee, or on any note or obligation thereafter made by “ L. Pomeroy’s Sons,” or by said Silas H. Pomeroy in that name. As soon as William Turnbull and Company had received their mortgage for a balance due them, and said Silas H. had paid or renewed outstanding commercial paper of “ L. Pomeroy’s Sons,’’ the plaintiffs were to be discharged as trustees.
    Subsequently, in January and February, 1887, Consalus sold wool to “ L. Pomeroy’s Sons,” for which he received notes dated, respectively, May 23,1887, and June 9,1887, signed “ L. Pomeroy’s Son’s,” which had been transferred to plaintiff and had not been paid.
    Prior to the time of the decree the trustees in their business had used for correspondence letter paper with the 'following letterheads : “William Turnbull, Charles Atwater and S. Harris Pomeroy, trustees of L. Pomeroy’s Sons, Pittsfield, Mass.; ” all before “ L. Pomeroy’s Sons ” being in red ink. After the decree Silas IT. Pomeroy, used letter paper with the letter-head: “ L. Pomeroy’s Sons, Pittsfield, Mass., S. H. Pomeroy, trustee.” The other letter-heads were not in use by defendants after June 1,1886. On paper bearing the second letter-head said S. H. Pomeroy corresponded largely with said Consalus, and that, too, prior to the purchase for which the notes in question were given.
    The question was whether William Turnbull was liable on these notes.

      E. F. Bullard, for the appellant..

      Jesse Johnson, for the respondent.
   Learned, P. J.:

It is evident that, as a matter of fact, the defendant Turnbull’ was not one of the persons who bought the wool alleged in the complaint, and was not one of the persons who made the notes therein set forth; that wool was, in fact, bought and those notes, in fact, made solely by Silas H. Pomeroy. But the plaintiff claims, that Turnbull is liable on the principle that a retiring partner may be liable for subsequent purchases made by the firm of one with whom the firm has previously dealt, and who has not been notified of the retirement. Two questions are presented, the one whether that principle applies in this case; the other whether Consalus had not, in fact, notice that he was dealing only with Silas H. Pomeroy.

The three trustees were never partners, and in many respects their rights were very different from those of partners; they had no beneficial interest in the property; they were joint-tenants, not tenants in common; on the death of one, his representatives would have no .interest in the trust estate; one of the trustees could not voluntarily relinquish the trust; they were accountable for the proper management of the trust to the persons beneficially interested therein. All these particulars show that the position of trustees is widely' different from that of partners.

It is not, perhaps, necessary to decide in this case whether or not all of the three trustees were personally liable to Consalus for purchases made prior to the decree. We are not willing to assume that they were thus liable. The cases of Thacher v. Dinsmore (5 Mass., 299); Schmittler v. Simon (101 N. Y., 554) only decide that an executor who signs or indorses or accepts negotiable paper is personally liable, although he adds to his name the word “ executor,” or the like. Foland v. Dayton (40 Hun, 563) held that an executor will be personally liable for services done for the estate where there is no agreement to look to the estate, and that such agreement may be shown by circumstances. Austin v. Munro (47 N. Y., 360) is to the same effect, for it is said that executors have no right to bind the estate for debts contracted by them. This reason, it will be seen, does not apply to these trustees. So in New v. Nicoll (73 N. Y., 127) it was held that generally trustees cannot change the trust estate, unless so authorized by the instrument creating the trust, but are personally liable on contract made by them.

Now that exception takes the present case out of the two decisions last cited; for these trustees were expressly authorized to incur, on account of the trust, further liabilities, and were to carry on the manufacturing business, which would require a constant incurring of debts. It cannot be assumed that they were to do this on their own responsibility, especially when they were expressly authorized to do this on account of the trust, Nor did they give their personal obligations, the business being throughout conducted in the old name of “ L. Pomeroy’s Sons.”

Even if it should be urged that Silas II. Pomeroy, who made the purchases prior to the decree, was personally liable, it would not follow that Turnbull was liable also. As above pointed out, these trustees were not partners. When a partner purchases in the business of the firm all the partners are liable, because all are interested beneficially in.the purchase in the profits of the business. But it is not so with trustees. They are not interested in the profits of the business. They are conducting a trust for the benefit of others. An executor who gives his note as executor for a purchase made by him for the estate may be personally liable. But it does not follow that his co-executor is also personally liable on that note. So, even if Silas H. was personally liable for purchases made by him, it would not follow that Turnbull was personally liable therefor, although he knew of the fact. Because, as .we have seen, the authority, expressly as well as impliedly given by the will, was to incur liabilities on account of the trust estate. And there was abundant notice given by the letter-heads above mentioned, that the business was in the hands of trustees. Those who dealt with the concern must, therefore, have known that the business was carried on by persons having no beneficial interest therein. And inquiry would at once have disclosed the terms of the will and the authority given thereby.

Passing this question, however, we come to the effect of the discharge of Turnbull from his trust under the decree. Now, the plaintiff compares this transaction to the retiring .of a partner. There is no resemblance. A partner who retires often takes some of the capital with him. At any rate, he withdraws (or assumes to withdraw) that personal liability for the partnership debts which is on him as partner. He retires voluntarily and as a matter of right. The trustee discharged by the decree takes with him no capital. The property of the trust remains unaffected. He withdraws no personal liability; for when the trust deed authorized (as did this) the incurring of liability, then the liabilities incurred must be those of the trust estate, unless by some personal act a trustee makes himself liable. Furthermore, the trustee cannot relinquish his trust at pleasure. lie can only be released by the court. Whatever the misconduct of his co-trustee, he cannot, as^. matter of right, step out of the trust.

In all these respects the supposed analogy between the two cases fails. Furthermore, it may be said generally that a trustee is liable only for his own acts or his own negligence. A partner is often liable for the acts or negligence of his copartner. Hence it is that one dealing with a partnership may look to the liability of all the partners, and therefore arises the principle that the retiring partner must give notice of his retirement, but it is not so with a trustee.

The court of equity has special power over all express trusts. It may discharge a trustee and appoint another. It may remove a trustee against his will. Would the trustee removed against his will be liable for acts subsequently done, even if he did not give notice of his removal?

Some stress is laid on the fact that prior to the decree Turnbull knew that his co-trustee, Pomeroy, was purchasing wool on credit. But it does not appear that Pomeroy was purchasing on the credit of Turnbull; and that Pomeroy should purchase on the credit of the trust estate, or on his own credit, would be no ground of liability against Turnbull. For Pomeroy was not, as co-trustee, an agent of Turnbull. Even if the trustees had divided the trust duties among them, we do not see that one would be responsible for the acts of another.

A further consideration is that which was principally relied upon by the learned justice who tried the case; that is the change in the letter-heads. We must consider that some years had elapsed between the purchases made before the decree and those made after. Then Consalus received some twenty letters in which the letter-head contained, as above stated, the name only of S. Ii. Pomeroy as trustee. As the old letter heads contained the names of the three, this charge should have put him upon inquiry.

For all these reasons we think the judgment should be affirmed, with costs.

Landon, J., concurred.

Ingalls, J.

(dissenting):

This action was brought by the plaintiff to recover upon two promissory notes, of which the following are copies:

“ POMEROY’S SONS.
“ $1,197.76.
1 Pittsfield, Mass., Ma/y 23, 1887.
Four months after date we promise to pay to the order of John Oonsalus eleven hundred and ninety-seven -fifc dollars at the Agricultural Bank. Yalue received.
“L. POMEROY’S SONS.”
“L. POMEROY’S SONS.
“ $2,244.11.
“ Pittsfield, Jkme 9, 1887.
Thirty days after date we promise to pay to the order of John Consalus, twenty-two hundred and forty-four dollars at the Agricultural Bank. Yalue received.
“L. POMEROY’S SONS.”

The notes were indorsed by John Consalus, and for a valuable consideration transferred to the plaintiff before the commencement of the action. The defendant Turnbull was alone served with process, and is the only defendant who has appeared in the action. The notes were executed in the firm name of “ E. Pomeroy’s Sons,” and were given for wool sold and delivered to the defendants, under the following circumstances: Under such firm name a manufacturing business was established at Pittsfield, Massachusetts, by Theodore Pomeroy and Robert Pomeroy, who were sons of Lemuel Pomeroy, and they continued such business, which consisted of the manufacture of woolen goods, until November, 1878, when Robert Pomeroy retired from the firm and immediately thereafter the defendant Silas IT. Pomeroy became a partner in such' business with his father, Theodore Pomeroy, and the business was prosecuted under the same firm name until the death of Theodore Pomeroy, which occurred September 26, 1881. ITe left a last will and testament, which was duly proved November, 1881. That portion of the will material to be considered is the following:

In the further disposition of my estate, considering that of my five children two are sons, Silas II. and Theodore L., and three are daughters, Fanny, Margaret L. and Mary, and that a considerable part of my estate consists of mills and manufacturing property formerly of the firm of L. Pomeroy’s Sons, and since the termination of second firm owned and occupied by me, the business being still carried on under said name of L. Pomeroy’s Sons, which property is 'subject to the hazards of business needing the continued watchfulness, care and management of business men, I deem it right and proper that my sons, who, I hope, will, one or both, decide to continue the business with its labors and hazards, should receive a larger share of my estate than my daughters, and recollecting that for similar reasons this mill and manufacturing property was left by my father to his sons, and my son Theodore L., being a minor, so that it is necessary that the care of his estate be committed to the charge of some person of competent age and experience, and believing that such disposition of said estate will be for the interest and advantage of both my sons, I do hereby give, devise and bequeath unto "William Turnbull, of the city of New York, my said son Silas II. Pomeroy; and Charles Atwater of said Pittsfield, all the manufacturing property which was of the firm of L. Pomeroy’s Sons, or which I have acquired since the termination of said firm, and owned, used and occupied in my said business under said name of L. Pomeroy’s Sons, real, personal and mixed, of whatever name and nature soever and wheresoever situate (the real estate being principally located in said town of Pittsfield), including all rights and credits and every kind of property which the books and papers shall show to have been the property of said firm, dr my property as the successor of said firm, and used by me in and pertaining to my business under the name of L. Pomeroy’s Sons. And, also, the tract of land and buildings thereon, on the east side of the river in said Pittsfield, which I now own, and which I bought of J. D. Colt, the same being adjacent to, occupied and properly belonging with said manufacturing property. To hold to them, the said "William Turnbull, Silas H. Pomeroy and Charles Atwater, and to the survivors and survivor of them, his heirs and assigns, as trustees, and solely for the trusts, uses and purposes following, viz.: To continue and carry on without interruption till my son Theodore L. shall arrive at the age of twenty-one years, the manufacturing business now carried on by me under said name of L. Pomeroy’s Sons, in the same general manner said business is now carried on, subject to such changes in detail as, in the judgment of said trustees, the best interests of said trust may require, taking up and continuing said manufacturing business as the same shall be found at my decease, providing for the then outstanding and current liabilities incurred on account of and in said manufacturing business (but any credit which I may have on the books of L. Pomeroy’s Sons is not to be treated as a debt due to my estate, and is not to be required to be paid to my executors by said trustees), and incurring on account of said trust estate, during the continuance of said trust, such'further liabilities as a wise and prudent management of said trust may require, and in all things that shall pertain to the proper execution of said trust, having and exercising the same power and control in the premises as is now exercised by me in the carrying on of said business. And said trustees shall annually, during the continuance of this trust, pay over to my two sons, Silas H. and Theodore L., in equal proportion, such portion of the profits of said business, if any, as, in their judgment, a wise administration of said trust and preservation of the estate from depreciation will justify and permit.”

The defendants herein accepted the trust created by the will and entered upon the execution thereof, and continued tlie manufacturing business in the same manner it had been conducted previous to the death of the testator. The trustees purchased wool, from time to time, upon credit, using the firm name, L. Pomeroy’s Sons,” in transacting the business, and such wool was made into cloth and sold in market. The defendants borrowed money of the Agricultural National Bank of Pittsfield, for the purposes of the trust, and kept an account in such bank, using the same firm name. The defendant,William Turnbull, whoresided in the city of New York, visited Pittsfield as often as once a month, and participated in the business, in executing the trust, and received ample compensation for his services, which was paid from the proceeds of the business. He testified at the trial that he was aware that wool was purchased upon credit, which was used in the business. During the years 1882 and 1883, the defendants purchased wool of said John Consalus, upon credit, which was used in such business, and Was paid for subsequently by the trustees. The court has found, ujion that subject, the following: “ Sixth. That during the years 1882 and 1883, the said defendants bought wool from John Consalus, of Troy, N. Y., for said manufacturing business, and which was paid for by the defendants.” The defendants in conducting their correspondence with persons with whom they transacted business, connected with the execution of such trust, used paper which contained a letterhead, in the following form:

Wk. Turnbull, Chas. Atwater, S. Harris Pomeroy, Trustees oe L. POMEROY’S SONS.
Pittseield, Mass.,........18 .

The words “ ¥m. Turnbull, Chas. Atwater and S. Harris Pomeroy, trustees of,” in this letter-head, were printed in red ink, and the remainder in black ink. Considering the nature of the trust, and the duties imposed thereby, and the character of the business involved, and the manner the trustees performed the same, in executing such trust, we are convinced that within the principle established by the following adjudications, the trustees became personally hable for wool purchased by them upon credit, and which was used in such manufacturing business, as was the case in the purchases made of John Consalus. (Thacher v. Dinsmore, 5 Mass., 299; Schmittler v. Simon, 101 N. Y., 554; New v. Nicoll, 73 id., 127; Austin v. Munro, 47 id., 360; Foland v. Dayton, 40 Hun, 563.) It does not appear that when the purchases of wool were made of Consalus that he was informed that they were made upon the credit of the trust estate, and that he must look to such fund for payment. Nothing seems to have been said upon the subject, and there is no evidence to the effect that he had any knowledge in regard to the pecuniary condition of such estate; under such circumstances he was, we. think, at liberty to treat the trustees as personally liable to him for the wool, and leave them to look to the trust estate for reimbursement. It will be perceived that the letter-head contained not only the firm name, but also the names of each of the trustees in full. Assuming, therefore, that the three trustees became personally liable for the wool purchased of John Consalus, during the years 1882 and 1883, we are to inquire whether anything occurred subsequent thereto which had the effect to relieve the defendant Turnbull from liability personally for purchases of wool made of Consalus subsequent to that date, and which was used in the business of the trust. The fact that the firm name “ L. Pomeroy’s Sons ” was used by the trustees in transacting the business, under the circumstances, cannot change the rule in regard to the personal liability of the trustees.

It appears that an action was commenced in the Supreme Judicial Court of Massachusetts, in which ’William Turnbull and Charles. Atwater, trustees under the will of Theodore Pomeroy, said Atwater being also executor of the said will, against Silas IT. Pomeroy and others. And on the 1st day of June, 1886, a decree was entered in the action, which, among other things, provided, upon certain ■conditions therein specified, that the said Turnbull and Atwater should be allowed to retire from such trust as such trustees, and that the further execution of such trust should be continued by the remaining trustee, Silas H. Pomeroy. Such decree seems to have been based substantially upon a written agreement executed by the trustees and the other parties who were interested in the execution of the trust, and by its decree the court seems to have given its consent to the carrying out of the scheme devised by the parties and incorporated in such agreement. The motive which prompted such arrangement is not disclosed, and we can only imagine that the purpose was to reduce the expenses which attended the execution of the trust under the management of the three trustees, which are shown to have been considerable. The defendant Turnbull insisted upon the trial, and now here contends, that by force of said decree he became discharged from such trust, prior to the purchase of the wool of Consalus for the price of which the notes in suit were executed, and therefore that he is not personally hable in this action. Whatever might be the legal effect of such decree, as to the parties to that action, or as to parties who had notice thereof, or who furnished wool for the first time after the entry of such decree, to be used in such business, we are persuaded that as to John Consalus, who had sold wool to the defendants upon credit and to be used in the business of the trust, in the years 1882 and 1883, and received payment therefor from the trustees, and again in 1887 sold upon credit, and for the same purpose and under like circumstances, the wool for which the notes were executed, such decree cannot, we think, have the effect, under the circumstances of this case, to exempt Turnbull from personal liability in this action, unless he has at least succeeded in establishing a sufficient notice to Consalus, previous to the sale of the wool for which the notes were executed, that he had been discharged from such trust, as such trustee. It is very clear, from the evidence, that John Consalus had no knowledge, prior to the execution of the notes in suit, that an action had been commenced in the court in Massachusetts, or of the decree entered therein. John Consalus testified as follows: “ Q. Previous to your selling these last lots of wool, did you ever know of William Turnbull withdrawing from the business, in any shape or manner? A. No, sir.” We perceive nothing in the evidence which conflicts with such statement. Ve are not able to adopt the contention of the learned counsel for the respondent, as. applied to the facts of this case, that Consalus was bound to take notice of the decree of the court in Massachusetts, although not a party to the action, and having had no knowledge of its existence or of the decree entered therein. ¥e are satisfied that such decree obtained in the manner it was could not have the effect to relieve the defendant Turnbull from personal liability for the wool purchased of Consalus in 1887, and for which the notes were executed. There are provisions in such decree which seem to suggest that the parties thereto contemplated that the trustees had become personally responsible for debts contracted in conducting the business under the trust. The wool for which the notes were executed was purchased within a year after the entry of the decree, and it does not seem improbable but that such wool was used in the manufacture of cloth and the proceeds applied to the retirement of the indebtedness of the trustees, as provided by the decree. ¥e do not discover, from the evidence, when the conditions were performed upon which, according to the decree, the defendants Turnbull and Atwater were to be discharged from the trus* as such trustees, and for aught that appears such period may have extended beyond the time the last lot of wool was purchased of Consalus, and used in' the business. It would seem, in view of all the facts, inequitable to apply the avails, of such wool to the payment of the liabilities of the trustees, and allow them to escape responsibility upon the notes in suit, which were given for such wool. We conclude that the decree, in view of the facts disclosed, could not, in any event, have the effect to discharge the defendant ’Turnbull from the trust as such trustee so as to exempt him from personal liability for the wool purchased of Consalus and fer which the notes were executed, unless the facts sufficiently establish notice to Consalus, with whom previous pur. chases of wool had been made by the trustees upon credit, that Turnbull had been discharged from such trust, and that such notice had been received by Consalus prior to the last purchase of wool, so that he could be regarded as having made the sale of the wool for which the notes were executed, with knowledge of the retirement of Turnbull. This presents the question upon which the cause seems to have been disposed of at the circuit, and the learned justice based his decision mainly upon the assumption that the change of the letter-head after the decree, in the correspondence with Consalus, constituted sufficient notice of the retirement of Turnbull from the trust to free Mm from liability upon the notes in suit. ¥e are constrained to differ with the learned justice in the conclusion thus reached by him. The substituted letter-head upon the paper used in such correspondence, was in the following form:

“L. POMEROY’S SONS,
“ S. H. Pomeroy, Trustee. Pittsfield, Mass.”

The evidence is to the effect that Consalus received from the defendants letters in relation to the purchase of wool, written upon paper some of which bore one form of letter-head and some the other. Consalus was interrogated, as a witness, as to how he regarded such change, at the time, and he replied, in substance, that he understood that it merely indicated that Silas H. Pomeroy had the immediate supervision of the manufacturing of cloth, and of the purchase of wool, as incident thereto, which was to be used in such business, and that in that capacity he acted for all of the trustees. Consalus testified as follows: Q. In what capacity did you suppose S. H. Pomeroy was acting in the business ? A. I supposed he was manufacturing, carrying on the business for the trustees of the estate, same as before, only under his management; that is what I always thought. Q. Explain what you mean in your answer to Mr. Johnson, that you did understand he was carrying on the business ? A. I meant this — that he was carrying it on, doing the business there for the trustees, he being one of the trustees of the estate; the business as it always has been, and I think I said so before.” Such inference of Consalus accords with the manner the business was actually conducted by the trustees previous to the change of the letter-head, as appears by the evidence of Silas IT. Pomeroy.

“ Q. Before May 18, 1885, in carrying on the business under the directions of your father’s will, what did each defendant do in that behalf ? A. Turnbull, during period, did not go up to Pittsfield only three or four times a year, and remain only a part of a day at our mill, up to May 18, 1885; a majority of the manufactured goods were consigned to his firm at New York, for sale on commission ; in a few cases he ordered wool bought; that was about all he did in our business; Atwater had charge of the bookkeeping at the mill, which was his main business; I had the charge of the manufacturing, and in the majority of cases purchased the wool for the mill. Thus it appears that the business under the trust was distributed, by the trustees, among themselves, in such manner that Silas H. Pomeroy, who resided at Pittsfield, where the manufacturing was done, was assigned that branch which embraced the purchase of the wool. The court has found the following :

Eleventh. That said Turnbull knew that said defendant Pomeroy was purchasing wool on credit after June, 1886, for conducting the same kind of business. The court so found.

Twelfth. That said Turnbull knew that said Pomeroy continued to use the film name, “L. Pomeroy’s Sons,” after June, 1886, and said Pomeroy paid the said Turnbull $5,000, by a check, dated August 17, 1886, signed by said Pomeroy, in the name of L. Pomeroy’s Sons.” The court so found.

Mr. Turnbull testified that he was aware that the three trustees purchased wool upon credit. It is quite evident from the facts that there was no apparent change in the manner the business was transacted after the making of the decree from what it had been previous thereto. And there was nothing in that respect to inform Consalus that any change had occurred by the retirement of any of the trustees. It, therefore, appears that the question of notice is reduced to an inference to be drawn substantially from one single fact, viz., the change of the letter-head, and explained, as it has been by the evidence, it seems too indefinite and unsatisfactory to amount to a notice which should have influenced the conduct of Consalus, or such as the law required to exempt the retiring trustee from personal liability under a trust like the one in question, and executed as this had been by the trustees. The sufficiency of such notice must depend upon the circumstance of the particular case, as a notice which should be deemed sufficient under one state of facts might be regarded insufficient under another. In view of all the facts, we think that Consalus was justified in concluding that the wool, for which the notes in suit were executed, was purchased at the instance of all of the trustees, and upon their responsibility, even though the paper used in the correspondence may have exhibited the letter-head as changed. The new letter-head contained the name of the firm “ L. Pomeroy’s Sons,” also the name Silas H. Pomeroy, trustee. And according to the testimony of Pomeroy the dash preceding the word “ trustee ” was intended to indicate that he was not alone trustee. At folio 152 of the case he states as follows: “ I had the dash put in because I was not alone trustee.” We think the change in such letter-head was not sufficient to constitute notice that two of the trustees had retired, and that the inference drawn therefrom hy Consalus, under the circumstances, was reasonable and justifiable. He knew that there were three trustees who had had charge of the business under the trust, and that they had purchased wool of him upon credit, which had been used in the business and paid for by them, and, as before stated, the court has so found the fact. Consalus states further that he understood that the trust was created by a will, but did not know the precise terms of the trust. In view of such facts and circumstances, we are persuaded that Consalus, in the exercise of reasonable prudence, was justified in assuming that the trust continued and was being executed by the three trustees, who were responsible for the wool purchased of him, for which the notes were given. Notwithstanding the changes which were introduced into the form of the -correspondence, and the paper upon which it was conducted, it is fairly presumable that he made the sales, relying upon the responsibility of the trustees rather than the trust estate, in regard to which he is not shown to have had any definite knowledge. He knew that one of the trustees, Mr. Turnbull, resided in the city of New York, and was there engaged in business, and that the trust estate was situated in Pittsfield, Massachusetts. It would seem to be a natural inference that Consalus would be likely to rely for payment upon the trustees, who could be more conveniently and readily reached, and as to whom the remedy would be more direct and less •complicated than against the trust estate. However this may have been, in regard to the motive that prompted him in making the sale of the wool, the fact is established that when the sales were made in 1882 and 1883 the three trustees were conducting the business in execution of such trust, and purchased of Consalus wool upon credit, which was used in the business, and for aught that he knew; or was hound to know under the circumstances, they continued in the execution of the trust, and, therefore, personally liable to him for the price of the wool sold in 1887, for which the notes were given, and he was, therefore, at liberty to look to the trustees for payment, even though he may have had the impression that in some form the trust estate might be reached. (Fowler v. The Bowery Savings Bank, 113 N. Y., 450, 454.) As bearing upon the sufficiency of the notice which should have been given to Consalus of the retirement of Turnbull, as trustee, to relieve him of liability, reference is made to Claflin v. Lenheim (66 N. Y., 301). In that case the court says: Justice to parties dealing with agents requires that the rule requiring notice in such cases should not be departed from on slight grounds, or equivocal circumstances substituted in place of notice.”

As to the rule inregard to notice by a retiring partner to persons who-had trusted the firm, in order to avoid liability to such persons for purchases made by the firm after such retirement, we refer to the Bank of Commonwealth v. Mudgett (41 N. Y., 514); Claflin v. Lenheim (supra, 305); Fowler v. Bowery Savings Bank (supra). Regarding the nature of the business involved in this trust, and the manner the trustees conducted the same, we are satisfied that the rule requiring notice by a retiring partner, to avoid personal liability for debts created after such retirement, applies in this case. This trust was peculiar in its nature, and in its execution necessitated the conducting of a business, the characteristics of which were, in some respects, similar to those which appertain to a partnership, and also to an agency, and we, therefore, conclude that the reason for the rule requiring such notice in the case of a retiring partner, or of a principal who has discharged an agent, in order to protect such persons from liability, applies with equal force to the retiring trustee in this case. Such rule has its foundation in equity, and is salutary in its effect, and should be enforced in favor of those who deal with trustees, who manipulate trust estates, and who alone have the means of. knowing whether they are solvent. The facts of this case which bear upon the question of notice, and which are relied upon to sustain it,.are substantially undisputed, and, therefore, the question in regard to the sufficiency thereof to establish the same becomes a question of law rather than of fact. (Claflin v. Lenheim, supra, 305.) In our examination of the law ujon such question we have not overlooked the case of Holt v. Allenbrand (52 Hun, 217). Regarding the facts of that case, we conclude that it falls far short, of affording substantial support to the theory for which the respondent’s counsel contends in this case. In the case referred to the changes relied upon to constitute notice of retirement were marked, and such as were calculated to attract notice, and were wholly inconsistent with the idea that the relation continued; not so in the case under consideration, in regard to the letter-head, par. ticularly as explained by Silas H. Pomeroy, the trustee, who was-a witness produced by the defendants. Mr. Turnbull voluntarily assumed the trust in question, not gratuitously, as the facts show that he received $6,000 annually as his individual compensation for his services, and in addition thereto his share of the commissions arising from the sale of the manufactured goods which were consigned to the commission-house of which he was a member, in New York, for sale. In view of the facts of this case, and the law which we deem applicable thereto, we conclude that the defendant Turnbull became liable upon the notes in suit to the plaintiff herein. And that he was required by law to give notice to Consalus of his retirement from such trust previous to the purchase of the wool for which such notes were executed. And that the facts of this case fail to establish such required notice.

The judgment should be reversed and a new trial had, with costs, to abide the event of the action.

Judgment affirmed, with costs.


author: Landon, J.:

text:
    MARY TIMLIN, as Administratrix, etc., or JOHN TIMLIN, Deceased, Respondent, v. THE STANDARD OIL COMPANY OF NEW YORK and THE ACME OIL COMPANY, ELIJAH W. MURPHY and ORLANDO P. LISCOMB, Appellants.

      Maintaining a nuisance by which a pa/i'ty is killed — liability of both the landlord and the tenants — evidence of notice.

    On September IS, 1885, one John Timlin, then in the employ of the Delaware and Hudson Canal Company, was engaged in driving spikes along the rails of that company’s track lying nearest to the wall of a shed, which was the property of the New York Central and Hudson River Railroad Company, when a large portion of the wall suddenly fell and killed him ; the portion which fell was thirty-four feet six inches long at its base and forty-seven feet six inches long at its top.
    Upon the trial of an action, brought by the administratrix of Timlin, to recover damages, upon the ground that the fall of the wall was due to the negligence of the defendants, the testimony tended to show that the portion of the wall which fell was the easterly wall of a shed which stood alongside, and about six feet westerly of the most westerly track of the Delaware and Hudson Canal Railroad, and that the wall was eleven feet high, one foot thick, 111 feet long, and had been built forty years before, and that at the time of its fall, and for years prior thereto, portions of it had been noticeably in a dangerous condition.
    In July, 1884, the defendant,-the Standard Oil Company, procured a lease of that shed in the name of the defendant, the Acme Oil Company, for five years, subject to termination by the railroad company by giving a written notice of sixty days. It was stipulated upon the trial that the liability of the Standard Oil Company was the same as if the lease had been made to it. The defendants Murphy & Liscomb had, for a number of years prior to 3884, been under-tenants of a part of the shed of Strain & Reynolds, who were tenants of the New York Central Railroad Company, and also agents of the Standard Oil Company, and Murphy & Liscomb continued as tenants nominally under Strain & Reynolds, but really under the Standard Oil Company at the time the wall fell; their lease was renewed on the first day of May for each year, and they occupied that part of the shed, the wall of which killed Timlin.
    The court charged the jury that if the wall was a nuisance, as against the adjoining owners, at the time the Acme Oil Company became the lessee of the premises in 1884, and continued in that condition until it fell, all the defendants were liable, provided the jury should find that Timlin was free from contributory negligence.

      JBeld, that as the jury found that the deceased was rightfully at work at the place where the wall fell upon him, and was free from negligence, that the charge was sufficiently favorable to the defendants.

      That as the Standard Oil Company admitted that it was the real owner of the lease, and had been since its date, and stipulated that its liability was the same as if it were named as lessee in the lease, such stipulation was effective against itself, but not exculpatory of the actual lessee, whose agent or partner it might be for aught that appeared.
    That if the wall was really and apparently in a dangerous condition when one defendant leased the dangerous part of it to the others, and, notwithstanding the dangerous condition of the wall, the defendant, the lessor, undertook to prolong the receipt of rent for it, and the defendants, the lessees, undertook to prolong its profitable occupancy, and neither took any precaution to prevent its doing injury to innocent persons, that they were liable for such injury.
    That they maintained a dangerous structure, and prolonged the continuance of it, in disregard of the principle, sie uiere tuo ut alienum non Icedas.

    That the landlords were liable because they were guilty of misfeasance in letting the premises while in a ruinous condition.

      Swords v. Edgar (59 1ST. Y., 28); Edwards v. New York and Harlem Bailroad Company (98 id., 245) followed.
    That as the Acme Oil Company was the lessor or the assignor of the Standard Oil Company, and the latter was the lessor of the other defendants, the Acme Oil Company could not escape liability, because of its not being in actual non-possession of' the premises, provided that the premises were in such a condition as to be a nuisance when the Acme Oil Company allowed the Standard Oil Company to take possession thereof in its stead.
    It was urged by Murphy & Liscomb that as they had not' covenanted to make substantial repairs they were not liable for the omission.

      Held, that while that might be so, as between themselves and the landlord, their liability to the plaintiff in this case existed because they continued a nuisance which killed the deceased.
    The Standard Oil Company requested the court to charge the jury that the occupation of a portion of the building by the company at the time the wall fell was not a ground of recovery against it, which request the court declined to charge.

      Held, that, assuming that this request might have been properly granted, that as the theory upon which the trial courts submitted the case to the jury-made the liability of that defendant to depend upon the question whether this was a nuisance at the date of the renewal of this defendant’s lease to Murphy & Liscomb in the May previous to the accident, the refusal so to charge did not in any way prejudice that defendant’s case.
    An objection was taken to the refusal of the court to charge the jury that evidence of a notice given by a policeman to the foreman of the agent of the Standard Oil Company, shortly before the accident, of the condition of the wall, was entirely immaterial upon the question of the Standard Oil Company’s liability.

      Held, that as the court instructed the jury that no recovery could be had against this defendant unless it knew, or ought to have known, or had notice before the 1st day of May, 1885, that the wall was in a dangerous condition, and in view of the evidence of opportunity on its part to acquire notice, the refusal to so charge did not prejudice the defendant.

      Appeal by tbe above-named defendants from a judgment rendered at the Albany Circuit upon the verdict of a jury, which was ■entered in the office of the clerk of the county of Albany on the 3d day of July, 1888, and from an order denying a motion made upon the minutes of the justice presiding at the trial for a new trial, upon the ground that the verdict was contrary to the evidence, and ■contrary to law and upon exceptions, which was entered in the Albany county clerk’s office on March 29, 1888.
    The plaintiff complained that John Timlin, her husband and intestate, was, on the 12th day of September, 1885, killed by the falling of a brick wall upon him; that the fall of the wall was due to the negligence of the defendants.
    The testimony tended to show that the portion of the wall which fell was the easterly brick wall of a one-story shed, standing alongside, and about six feet westerly of the western-most tracks of the Delaware and Hudson Canal Company’s Railroad, in the city of Albany. The wall was eleven feet high, one foot thick, one hundred and eleven feet long, and had been built forty years before, and at the time of its fall and for years prior thereto portions of it had been noticeably in a dangerous condition. The shed was the property of the New York Central and Hudson River Railroad •Company. September 12, 1885, John Timlin, then in the employ •of the Delaware and Hudson Canal Company, was engaged in driving spikes along the rails of the canal company’s track nearest the wall when a large portion of it suddenly fell and killed him. The portion which fell was thirty-four feet six inches long at its base, and forty-seven feet six inches long at its top.
    In July, 1881, the defendant, the Standard Oil Company, procured a lease of the shed in the name of the defendant, the Acme Oil Company, for five years, subject to termination by the railroad company by giving a written notice of sixty days. The Standard Oil Company was the owner of the majority of the stock of the Acme Oil Company, and the leáse was for the benefit of the Standard Oil Company. It was stipulated that the liability of the Standard Oil Company was the same as if the lease had been to it. The Standard Oil Company occupied a portion of the shed, but not the portion directly opposite the place where Timlin, was killed. The defendants, Murphy & Liscomb, had been under-tenants of a part of the shed of Strain & Reynolds for a number of years prior to 1884. Strain & Reynolds were tenants of the New York Central Railroad Company, and also agents of the Standard Oil Company, and Murphy & Liscomb continued as tenants nominally under Strain & Reynolds, but really under the Standard Oil Company at the time the wall fell. Their lease wasu renewed on the first of May of each year. They occupied that part of the shed, the wall of which killed Timlin. Their lease was subject to the same termination as that to the Acme Oil Company. Strain & Reynolds, as agents of the Standard Oil Company, occupied the portion of the shed not leased to Murphy & Liscomb. The court charged the jury that if the wall was a nuisance as against the adjoining owner at the time the Acme Oil Company became the lessee of the premises in 1884, and continued in that condition until it fell, all the defendants were liable, provided the jury should find that Timlin was free from contributory negligence. The defendants severally excepted.

      M. Hale, for the Standard and Acme Oil Companies, appellants.

      H. C. Moak, for Murphy & Liscomb, appellants.

      H. Countryman, for the respondent.
   Landon, J.:

The jury found that the deceased was rightfully at work at the place where the wall fell upon him and was free from negligence. The court charged the jury that if the wall was a nuisance, as against the adjoining owner, at the time the Acme Oil Company, became the lessee of the premises, in 1884, and continued in that condition until it fell, all the defendants were liable. The court defined the sense in which it employed the term nuisance as follows: A man has no right to maintain a building which is inherently weak and in a ruined condition, and liable to fall and do injury to the adjoining owner or the public. Such a building is a private nuisance to those owning property adjoining it, and if it falls and inflicts injury upon any one, lawfully in its vicinity, the owner is liable for all the consequences. The court further said, in substance, that no recovery could be had against the Acme Oil Company, unless the wall was in an apparently ruinous condition when it leased it from the railroad company, or against the Standard Company, unless It was dangerous before it renewed its lease to Murphy & Liscomb in May, 1885.

The charge was sufficiently favorable to the defendants. A private nuisance is defined in Swords v. Edgar (59 N. Y., 34) as “ anything unlawfully or tortiously done to the hurt or annoyance of the person, as well as the lands, tenements and hereditaments of another.” The gist of the action is negligence, and whether by wrongful act or wrongful omission, is not material in this case. The defendants are hable if they owed a duty to the plaintiff’s intestate respecting this wall, which they failed to perform, and because of such failure the wall fell and killed him. That duty was, the moment they discovered the wall to be dangerous, to cease maintaining it in that condition, or contributing to such maintenance by act, or by omission to act, they possessing the power of remedial action.

The defendant, the Acme Oil Company, was the immediate lessee of the owner. The Standard Oil Company assumed control under the Acme Oil Company’s lease, and has ever since occupied a portion of the building. "What relations these two companies sustain to each other does not clearly appear. The Standard Oil Company admits that it is the real owner of the lease and has been since its date, and it stipulates that its liability is the same as if it were named lessee in the lease. But no assignment or lease is shown.

The admission of the Standard Oil Company is effective against itself, but not exculpatory of the actual lessee, whose agent or partner it may be for aught that appears. The Acme Oil Company took the'lease in its own name and then permitted the Standard Oil Company to control the- premises thenceforth. The transaction implies a co-operation of the two companies, in which one is the lessee for the benefit of the other. Murphy & Liscomb are under-tenants of the Standard Oil Company. They had long been in possession of the part of the premises from which the wall fell, and their lease was renewed in the May previous to the accident, in September, 1885. The deceased was not a party to any of these leases, and the plaintiff only examines them in order to ascertain who was maintaining the wall at the date of its fall, and whether the several leases were executed after its dangerous condition existed and was manifest.

If tlie wall was really and apparently in a dangerous condition when one defendant leased it or the dangerous part of it to the others, then the case stands in this wise— that notwithstanding the dangerous condition of the wall, the defendant, the lessor, undertook to prolong the receipt of rent for it, and the defendant, the lessees, undertook to prolong its profitable occupancy, and neither took any precaution to prevent its doing injury to the innocent. Clearly they thus maintained the dangerous structure, and prolonged the continuance of it as a peril; they did this for gain, in reckless disregard of the rule, sio utere tuo ut alienum non Iwdas, and of their duty to those to whom the structure was a peril. The landlords, the oil companies, in such case, are liable for the reason stated in Swords v. Edgar (59 N. Y., 28), and also in the main case upon which their counsel rely (Edwards v. N. Y. and H. R. R. R. Co., 98 id., 245), and as cited from Nelson v. Liverpool Brewery Company (L. R., 2 C. P. D., 311), because they were guilty of misfeasance in letting the premises in a ruinous condition. In Swords v. Edgar, the deceased was killed by the fall of a pier on which he was engaged in unloading a vessel. The pier was private property, but devoted to the use of those having proper occasion to go upon it; it was in an unsafe condition when the defendant leased it to the tenant, and the lease contained a covenant that the tenant should keep the pier in repair. The landlord was held hable. The quasi public use of the pier amounted to a license to the deceased to engage in his work there. Surely, in the present case, the canal company whose servant the plaintiffs intestate was, needed no license from the defendants to work upon his employer’s premises. Todd v. Flight (9 C. B. [N. S.], 377), is cited with approval in Swords v. Edgar. It was there held that the owner of premises who lets them to a tenant in a dangerous condition, who permits them to remain so until, by reason of want of reparation, they fall upon and injure the house of an adjoining owner, is liable to an action. Davenport v. Ruckman (37 N. Y., 568), is to the like effect.

In this case the Acme Oil Company is the lessor or assignor of the Standard Company, and the latter the lessor of the other defendants. The case, in this respect, is like Clancy v. Byrne (56 N. Y., 129), in which the defendant, who was the immediate lessee of the owner, snb-let the premises without himself ever taking possession. There the defendant escaped liability because it did not appear that the premises were in an unsafe condition when he sub-let them. The Acme Company was not in possession. Neither was the defendant in Clancy v. Byrne, but his liability was tested by the condition of the premises when he passed their possession to his under-tenant. The case cited holds that the Acme Company cannot escape liability because of its non-possession if the premises were a nuisance when it allowed the Standard Company to take possession in its stead. It cannot close its eyes to the condition of the premises and claim that its self imposed blindness relieves it from duty. It is by its acts and its negligence a co-contributor with the Standard •Company.

The Standard Oil Company by its stipulation consents that its liability is to be determined in like manner as if it were named as a lessee in the lease to the Acme Company. Whether co-lessee with the Acme Company or sole lessee, its liability is established by the •cases cited. Within the cases above cited the defendants Murphy ■& Liscomb, as the actual occupants of the premises and constant maintainers of the dangerous structure, are liable. (Irvine v. Wood, 51 N. Y., 224.) Murphy & Liscomb urge that as they had not •covenanted to make substantial repairs they are not liable for the •omission. That may be as between themselves and their landlord, but their liability to the plaintiff is because they continued a nuisance until it killed the deceased. (Wasmer v. Del., Lack. and W. R. R. Co., 80 N. Y., 212.) The Standard Oil Company requested the court to charge the jury that the occupation of a portion of the building by the company at the time the wall fell was not a ground of recovery against it. The court declined to charge as requested. The theory upon which the trial court submitted the case to the jury made the liability of this defendant to depend upon the question whether this wall was a nuisance at the date of the renewal of this defendant’s lease to Murphy & Liscomb in May previous to the accident. This was distinctly stated in the charge, and was repeated after the denial of the request now under consideration. Assuming that this request might have been properly granted, 'we cannot think that its denial in any way prejudiced this defendant’s case. This defendant’s possession was the same after as before this renewal. The previous possession was evidence of its knowledge at the date of the renewal, the possession continued to the date of the accident; but as the court explicitly instructed that the defendant’s liability depended upon the facts at the date of the renewal, we do not think we ought to hold that the mere denial of this request was an instruction that its previous and subsequent explicit instructions were not to govern the jury.

The refusal of the request to charge the jury that the notice given by the policeman to the foreman of the agents of the Standard Oil Company, shortly before the accident, of the condition of the wall, was entirely immaterial upon the question of the Standard Oil Company’s liability, is urged as error. These agents were the persons in possession in behalf of the company before the renewal of the lease as well as afterwards. If oral or written notice had been necessary to establish the liability of this company, then the defendant would have reason to complain of this particular notice. But the case was tried and submitted to the jury upon the question whether the defendant had had oecular notice. In other words, whether its agents in the building daily for years had not seen the patent defect in this wall. The rule, undoubtedly, is that where one hires or huvs land upon which there is an existing nuisance which may prove injurious to others, notice of it ought to be brought to him before suit will lie against him. This notice may be given by others or acquired by himself. The manner of it is not import, ant if the facts justify the inference that he 'acquired it. Where the nuisance is not obvious, as where a culvert constructed by his predecessor in title is too small to pass the high waters of a freshet, the grantee, in the absence of notice received from others or through his own observation, has been excused in the first instance. (Conhocton Stone R. v. Buffalo, etc., R. R. Co., 51 N. Y., 573.) So in the case of an overhanging gutter. (Haggerty v. Thomson, 45 Hun, 398.) Also, in a case of a conducter on the front of his house, not used by him, through which the water from his neighbor’s roof discharged upon the sidewalk and formed ice. (Wenzlick v. McCotter, 87 N. Y., 122.) But if he had made or repaired it the case would be different, for he would be an active participant and upholder. Actual notice, however acquired, is enough to charge him. (Brown v. Cayuga, etc. R. R. Co., 12 N. Y., 486; Irvine v. Wood, 51 id., 225; Swords v. Edgar, 59 id., 39; Wasmer v. Del. Lack., etc., R. R. Co., 80 id., 212.)

The court instructed the jury that no recovery could be had against this defendant unless it knew or ought to have known, or had notice before the 1st of May, 1885, that the wall was in a dangerous condition. In view of this charge and of the evidence of opportunity to acquire notice, the refusal to charge that the notice given by the policeman after that date was immaterial could not be expected to prejudice the defendant.

We have examined all the other exceptions and find none requiring a reversal.

The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concurred.

Judgment affirmed, with costs.