author: McAdam, J. By the Court.—Freedman, J.

text:
    MINNA KNOCH, Appellant v. LOUIS FUNKE, JR., Respondent.

      Discovery and inspection of defendant's boohs and papers, petition for.

    This action is brought by an assignee of the right of action to an accounting of an alleged partner in a co-partnership already dissolved by the death of one of the partners. The defendant was examined before this motion as a party before trial, and denied the partnership relations. No competent evidence was adduced on this motion that the books and papers sought to be discovered contain entries establishing, or tending to establish, the existence of a co-partnership between plaintiff’s assignor and the admitted partners. Held, That the motion for a discovery and inspection of the books and papers of defendant was properly denied. The order appealed from affirmed on the opinion filed by the learned judge at special term, that is set forth in the statement of the case.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 4, 1891.
    Appeal from an order denying plaintiff’s motion for a discovery and inspection of defendant’s books and papers.
    The following opinion was delivered by the court at special term, viz.:—
   McAdam, J.

The plaintiff claims that John Boker, a former husband of hers, and ivho is now deceased, was a partner of the defendant, and that prior to his death he transferred his interest in the partnership to the plaintiff. She prays for a dissolution of the firm, a receiver and an accounting. The defendant, in his answer and in his opposing affidavit denies that any such partnership existed. The plaintiff applies for a discovery and inspection of the defendant’s books on the theory that they belonged to the alleged partnership. The rights of parties to suits in equity are in the first instance determined by the court, and if it then appears that accounts must be settled in order that a complete disposition may be made of the cases, an interlocutory decree is entered, declaring such rights, the manner in which the accounting is to be had, and referring the action to a referee, before Avhom the account is to be taken (1 Barb. Ch. Pr. 327; Baylies, Tr. Pr. 305). The discovery is material only on the accounting and not on the trial of the issues, and the defendant is entitled to have the issue as to the alleged partnership determined before he can be required to produce his books for inquisitorial purposes. It would be an abuse of discretion to order the discovery applied for. Application denied •with ten dollars costs to abide the event.

Edward Grosse, attorney, and John W. Goff of counsel, for appellant, argued:—

I. The learned judge erred in.refusing the order on the ground that “ the discovery is material only on the accounting and not on the trial of the issues.” 'Clearly the learned judge has misapprehended the nature of the application and the facts upon which it was founded. The issue is the partnership and the accounting is but incidental to the determination of the issue. The discovery was not sought for the purpose of enabling plaintiff to compute the amount due her but to adduce the proof which would sustain her case. The plaintiff alleges that her assign- or was a partner; that is denied by the defendant. Therefore the issue is the partnership. The books, etc., are witnesses which will prove the partnership, and their discovery is, therefore, material to the issue. From the nature of the case they are the only witnesses that can give testimony material to the issue. And without their testimony plaintiff cannot properly prepare for or safely go to trial. In the absence of a written agreement the issue of partnership or not is to be determined by ascertaining the intentions of the parties as manifested by their transactions, and these transactions have been recorded in the books and are thereby made primary evidence of the contract. Salter v. Ham, 31 N. Y. 321; Phillips v. Phillips, 49 Ill. 437; Frick v. Barbour, 64 Pa. St. 120. The acts of the parties between themselves are decisive as to their relations; upon the evidence of those acts the court must determine the ’ question, but the evidence must be first presented; without it the court cannot pass a judgment on the facts. The books contain this evidence. Therefore this evidence is material to the issue. The learned judge says in his opinion: “ The rights of the parties to suits in equity are in the first instance determined by the court, and if it then appears that accounts must be settled, an interlocutory decree is entered, etc.” True, but the plaintiff seeks the discovery to enable her to prove her right in the first instance. If her right be not proved in the first instance, the materiality of the discovery upon the accounting is of little consequence.

II. The learned judge erred in determining that the defendant is entitled to have the issue of the alleged partnership determined, before he can be required to produce his books for inquisitorial purposes.” Suppose that there had been a written contract of partnership and that it was in the possession of the defendant, would he be entitled to have the issue of partnership first determined before he could be required to produce the contract ? The books are as essential and material to the issue as a written contract, because they contain the evidence of the contract.

III. The granting of the order would not have been “ an abuse of discretion,” but its denial was a failure to properly exercise a discretion in affording to a party a remedy which was a legal right. “ A party applying for a discovery under the statute may, by making a case provided for by them and the rules of the court, became entitled to the remedy as a matter of right.” Hoyt v. American Exchange Bank, 1 Duer, 652; Keeler v. Dusenbury, 1 Ib. 660. No criticism has been made that the petitioner failed to comply with any of the requirements of the statute or rules of court. The ground of the refusal was that the discovery was not material to the trial of the issues. As it is manifest that the discovery is material to the trial of the issues, the objection falls and the petitioner is legally entitled to the relief-

The object of the law, as it is, is to enable each of the parties to secure a full and fair examination of such papers or documents as the other may have in his possession or under his control, if they are material to the interests of the party and relevant and material to the matters involved in the pending litigation. Wait’s Pr., vol. 2, 523; Townsend v. Northage, 1 Civ. Proc. Rep. 181.

IV. Whenever it appears that a trust relation existed, or one implying confidence, such as between principal and agent or co-partners, and that one of the parties is in possession of books and papers relating to the subject matter, courts of equity as well as of law will order a discovery. The case of Kelly v. Eckford, 5 Paige, 548, is considered a leading one on this question. The action was by an assignee of a partner for an account and settlement of the partnership. The Chancellor ruled: “ In the case of partnership books and papers, it is the constant and uniform practice of this court, upon the application of either party, and in any stage of the suit, to order the adverse party to deposit any of the partnership books and papers—which belong equally to both—for examination and inspection.” To the same effect are : Watts v. Lawrence, 2 Paige, 159; Eager v. Wiswall, 2 Ib. 369; Terry v. Rubbel, Sup. Ct., 12 Legal Obs. 138. In Babbitt v. Crampton, (Supreme Court General Term, First Dept., 1 Civil Pro. Rep. 169, action for an accounting—confidential relation—fraud alleged), discovery of books was allowed to enable defendant to disprove allegations in the complaint on the trial. In Gould v. McCarty, (reported in 11 N. Y. 575, action in the N. Y. Supreme Court for damages for non-delivery of stock; after issue plaintiff petitioned for discovery of books, etc., containing entries relating to the stock) the court granted the order, which the Court of Appeals affirmed. In Case v. Banta, 9 Bos. 595 (action for breach of warranty-), the court say: “If it is established to the satisfaction of the court that any book in the possession or under the control of the adverse party contains evidence relating to the merits of the action, it seems free from doubt, if it is otherwise competent evidence, that its production for inspection by the opposite party may be compelled. In Newman v. Newman, 20 Week. Dig. 288 (action by representative of deceased partner for an accounting), held that discovery of books, etc.,' should be had at instance of plaintiff. In Ahlmeyer v. Healy (N. Y. C. P. Genl.. Term, 12 N. Y. State Rep. 687, action for damages) plaintiff sought to show that defendant was proprietor of the business. He was examined before trial. On such examination he made several references to entries in his books relevant to the question of ownership. Plaintiff moved for discovery of the books. Held she was entitled, the court saying: “ A discovery is proper, when facts and circumstances warrant a presumption, that a book or document contains evidence that will prove or tend to prove some fact that the party applying is bound to establish. Absolute proof “ that the documentary proof exists is not required.” Citing Lefferts v. Brampton, 24 How. 257; Union Paper Collar Co. v. Metropolitan Co., 3 Daly, 171.

V. The production of the books, etc., upon the trial under subpoena duces tecum would not aid the plaintiff or enable the court to determine the case on its merits. The books are numerous, and cover a period of thirty years. Many of the letters and papers are in the German language. To properly examine the books, make extracts therefrom and translate the German writings would require the services of an expert, and at least two weeks’ time. An examination and inspection before trial will enable the plaintiff to properly prepare the evidence and present the material entries in proper order. An examination of the books and papers before trial will economize time at the trial and tend to elicit the facts with greater certainty. Union Collar Co. v. Metropolitan Co., supra; Exchange Bank v. Monteith, 4 How. 280; Clyde v. Clyde, 14 Hun, 146. When the accounts, for the discovery of which an application is made, are of extensive transactions, and time is necessary for their examination and the proper preparation of the case for trial, the fact that the books containing them can be produced at the trial by means of a subpoena duces tecum, will not defeat the application for discovery.” Duff v. Hutchinson, Supm. Ct. Genl. Term, 18 Week. Dig. 20. The petition is verified by the plaintiff and contains all the necessary allegations in compliance with the statute and rules of court to warrant the discovery and inspection.

James McG. Smith, attorney, and Austin Abbott of counsel, for respondent, argued:—

I. Plaintiff does not establish a prima facie right to any interlocutory relief.' The complaint is unverified. The petition states its contents, but does not allege that any part of it is true. The body of the petition is entirely on information and belief, and does not state any facts showing plaintiff’s right to call defendant to account. Plaintiff claims to be an assignee of a partner, but she knows neither the par - nership nor her assignment, though both are challenged. She ignores the defence set up in the answer that the assignment to her was merely as collateral and that her debt has been paid. She does not produce her alleged assignment nor inform the court as to its terms and what it purports to assign to her. It is an elementary rule that the court will not award a plaintiff any provisional remedy or interlocutory relief by order without proof upon some one’s oath that plaintiff has a cause of action, and that there are good reasons for granting the relief in the particular case. This general rule is followed in the statute as to discovery. Code Civ. Pro. § 805 requires a petition “verified by affidavit.” This means an affidavit of an affiant who has knowledge, and not one who merely believes. Fox v. Brega, 23 State Rep. 833; Wilkie v. Moore, 17 How. 480; 1 Bliss Code, 1000. A general assertion in an affidavit upon information and belief proves nothing. Mowrv v. Sanborn, 65 N. Y. 581, 584; Rome, W. & O. R. R. Co. v. City of Rochester, 46 Hun, 149. The criticism of the court upon the papers in Churchman v. Merritt, 21 State Rep. 729, applies with especial force to the case at bar. The statement in the petition that the defendant’s deposition is the source of petitioner’s information does not strengthen the case. The disposition itself should have been presented or its contents stated. The present petition merely states the conclusion of the affidavit as to its effect. This form of proof has recently been condemned by the general term of the Supreme Court in this district. McColloh v. Aeby & Co., 31 State Rep. 125, and by many previous cases; De Worth v. Feldner, 16 Abb. 295; Bennett v. Edwards, 27 Hun, 352.

II. Defendant’s opposing affidavit clearly shows that plaintiff has no cause of action. It shows that John Boker was never a partner with defendant in his present business. That he never claimed to be a partner : but swore that he was not. That he assigned all claim against defendant to a third person before the alleged assignment to plaintiff. That plaintiff’s alleged assignment was merely as collateral to a note held by her, which note was subsequently paid by her husband, John Boker, with moneys supplied by defendant. These allegations are entirely uncontradicted. They are all made positively on defendant’s oath. They cannot be ignored.

III. Relief by discovery is unnecessary at this time. The discovery sought is material only on an accounting, and not on the trial of the issues. If the court finds on the trial that plaintiff is entitled to an accounting, it will, in the ordinary course of practice, render an interlocutory judgment directing such accounting before a referee. Defendant is entitled to have that issue determined before being further harrassed. This position is fully sustained in the opinion rendered by the learned judge at special term on denying the application. An alleged partner must establish the existence of the partnership before he can maintain an action for an accounting. 1 Collyer on Partnership, 51 (n.). “ An action by one partner against another for an account of the dealings and transactions of an alleged partnership may be met by the denial of the existence of any such partnership. This defence, if relied upon as a reason for not answering interrogatories or making a discovery of documents, must be accompanied by statements on oath denying those allegations, which, if true, would establish the partnership, and deny the possession of documents relevant to the question of partnership or no partnership.” 2 Lindley on Partnership, 961. The affidavit submitted by the defendant in this case goes further than is required by this rule. It not only denies the existence of the partnership, but denies that plaintiff succeeded to the interest of the alleged partner. It is apparent from the papers that whatever the rights of John Bolter may have been, the plaintiff never succeeded to them. The assignment to her fell when the debt to which it was collateral was satisfied and paid. It has been stated in some cases that discovery of partnership books is a matter of course in an action for a partnership accounting. Stebbins v. Harmon, 17 Hun, 445 ; Kelly v. Eckford, 5 Paige, 547; but in these cases there was no denial of the partnership. The court must first determine that the partnership exists, and then only proceed to take the account. McCall v. Moschowitz, 10 Civ. Pro. R. 107, 140 ; Marvin v. Brooks, 94 N. Y. 71. In this case the court might, and probably would upon the trial, order the trial of the issues as to the plaintiff’s status first, as authorized by Code Civ. Pro., § 967.

IV. The court, in its discretion, properly refused the application. Its granting was not a matter of right, but rested in the discretion of the court. It should only be granted when indispensably necessary. Harbison v. Van Valkenburgh, 5 Hun, 454 ; 1 Bliss, Code, 998. Plaintiff has already been accorded an examination before trial which has been pursued to extraordinary length. On such examination she was permitted to examine all books which have any bearing on the main issues. The court should not further aid her until her own status has been established.

By the Court.—Freedman, J.

This action having been brought by the assignee of the right of action to an accounting of an alleged partner in a co-partnership already dissolved by the death of one of the partners, and the defendant having been already examined as a party before trial at the instance of the plaintiff, and having fully and circumstantially denied the partnership, relations, and no competent evidence having been adduced that the books and papers sought to be discovered do contain entries establishing or tending to establish the existence of a co-partnership between plaintiff’s assignor and the admitted partners, the motion for a discovery and inspection was properly denied. The order appealed from should be affirmed, with costs, on the opinion filed by the learned judge at special term.

Sedgwick, Ch. J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    ANNIE BARRETT, an Infant, by Guardian., etc, Appellant v. GEORGE WALDO SMITH, et al., Respondents.

      Negligence, action for damages caused therefrom.

      Held, that to sustain the action the plaintiff was bound to show affirmatively that negligence on the part of defendants’ driver was the proximate cause of the injury, exclusive of any other primary cause. Negligence is never presumed or inferred from the fact that an injury has been sustained. Therefore, whenever the fact appears that the injury was occasioned by one of two causes, for one of which the defendant is notresponsible, while for the other he is responsible, the plaintiff must fail unless the evidence shows that the injury was produced by the cause for which defendant is responsible, and he must fail also if it appears from the evidence that it is just as possible that the injury was caused by the one as by the other. Also held, that the injury in this case was the result of an unavoidable accident, and the evidence insufficient to establish actionable negligence on the part of the defendants.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal from a judgment dismissing the complaint with costs.

      Richard O. Gorman, Jr., for appellant, argued :
    I. On this appeal it is only necessary to consider whether there is such evidence as would justify a jury in finding that the driver was guilty of negligence, and that his negligence caused the injury complained of. The learned trial judge dismissed the complaint solely on the ground that there was a failure to prove negligence on the part of the defend^ ants. In his opinion he states that the negligence of the child cannot be considered and the negligence of the child’s .parents cannot be imputed to the child. In other words, if the child was hurt through the negligence of the defendants, she is entitled to recover. Taking the view of the law most favorable to the. defendants, the question as to the parents’ negligence was for the jury. Prendergast v. N. Y. C. & H. R. R. Co., 58 N. Y. 652; Mangam v. Brooklyn R. R. Co., 38 Ib. 455 ; Birkett v. Knickerbocker Ice Company, 110 Ib. 504 ; Weil v. D. D. E. B. & B. R. R. Co., 119 Ib. 147; Ames v. B. & S. A. R. R. Co., 56 N. Y. Superior, 3.
    II. The plaintiff, upon this appeal, is entitled to the most favorable inference deducible from the evidence ; and when the evidence is conflicting, and different interpretations or inferences may be drawn therefrom, it is the province of a jury to pass upon the questions involved. Belton v. Baxter, 58 N. Y. 411; Hart v. H. R. B. Co., 80 Ib. 622 ; Greany v. L. I. R. R. Co., 101 Ib. 423; Kunz v. City of Troy, 104 Ib. 352.
    _ ... III. The was non sui juris, and no negligence of hers, even though it contributed to the evil, can bar her recovery in this action. The learned trial judge evidently so held, and this doctrine has been established by repeated decisions. An infant three or four years of age is not to be deemed sui juris, and is incapable of forfeiting his remedy against a conceded wrongdoer by reason of his own personal negligence. Mangam v. Brooklyn R. R. Co., supra. This principle is founded upon the natural disability of so young a child. An infant of such tender age is so helpless, so wanting in discretion, so inclined to misapprehension, so subject to fright and so incapable of using any judgment whatever in the face of apparent danger, that, as matter of law, no care or prudence can be from her.
    IV. The driver, when he first saw the plaintiff, owed to her the duty of exercising a very high degree of care. The plaintiff was manifestly a child, too young to expect from her intelligent or efficient care of her person. When at a distance the driver saw her by the wall in this exposed position, it then became his duty either to pass to the right-hand side of the street in obedience to the law of the road, and thus entirely avoid the child, or to reduce his speed to such a pace as would enable him to speedily and effectually stop or control his horses. In the case of Birket v. Knickerbocker Ice Co., the court, at general term, says: “In a populous city, one driving a vehicle must always be on the alert to discover foot passengers and especially to look out for children” (3 N. Y. Slate Reporter, 134). This decision was affirmed by the Court of Appeals, 110 N. Y. 504; Stone v. Dry Dock R. R. Co., 115 Ib. 104; Murphy v. Orr, 96 Ib. 14.
    V. There was such evidence as would justify a jury in finding that the driver was negligent. The complaint alleged that the driver did carelessly and negligently drive and manage the horses and truck, and did drive them with greater speed than at the rate of five miles an hour, in violation of a city ordinance, which fixed that rate as the extreme limit of speed. The ordinance had no doubt for its object the safety of foot passengers on the public streets, recognizing the fact that a high rate of speed causes fright, and deprives the driver of complete control over his horses. The violation of such an ordinance is evidence of negligence. Beisegel v. N. Y. C. R. R. Co., 14 Abb. N. S. 34; McGrath v. N. Y. C. & H. R. R. Co., 63 N. Y. 530; Massoth v. D. & H. C. Co., 64 Ib. 532 ; Knupfle v. Knickerbocker Ice Co., 84 Ib. 490. Driving at an unusual rate of speed is negligence. Hill v. N. A. R. R. Co., 109 N. Y. 242; Stone v. Dry Dock R. R. Co., supra; Birkett v. Knickerbocker Ice Co., supra. In the case at bar, the evidence is that an ordinance was violated and that the horses were driven at a high rate of speed. James Reilly testifies that the horses were going at the rate of six miles an hour and says that they were going faster than his horse could go, although at the time he was driving in a light wagon, and his horse was a fast one. He says that he had to pull to one side to allow defendant’s team to pass him. Mary Barrett testifies that the horses were flying up, that they were going as fast as they could go. The front leg of the horse knocked the child down, yet the front and hind wheels of the wagon passed over her and the wagon went on, leaving the child lying bleeding on the street. From these facts a high rate of speed may be inferred. The driver also violated the law of the road in keeping to the left hand side instead of to the right. This has been held to constitute negligence. But the negligence of the driver does not consist only in that he drove at an unlawful or high rate of speed, or that he violated the law of the road, but that he drove at that rate and in violation of that law, close to and among a number of children, one of them less than four years old, and at a distance of only three feet from a high wall which prevented them from escaping in the direction which a person in their position would instinctively believe the proper one. Oelerich v. N. Y. Condensed Milk Co., 24 N. Y. State Reporter, 699. The day was clear, the avenue was empty, and there was no obstruction to prevent the driver from seeing the exact position of the children. He entered the avenue at One Hundred and Second street, six blocks away. Taking all these circumstances in connection with the violation of the ordinance, there was clearly evidence from which a jury might find negligence on the part of the driver. Durant v. Lipsius, 5 N. Y. St. Rep. 841; Wandell v. Corbin, 38 Hun, 391; Moebus v. Herrmann, 108 N. Y. 352; Birkett v. Knickerbocker Ice Co., supra ; Oelerich v. N. Y. C. M. Co., supra.

    VI. No act of the plaintiff is a bar to her recovery, unless that act was of so unusual a nature that the driver, as a man of reasonable prudence, could not have anticipated it. The learned trial judge has considered the plaintiff non sui juris and incapable of performing an act which could be considered negligence. To hold that such a child cannot recover, if an act on her part natural to her youth and indiscretion has contributed to the injury, is practically to take from her all advantage which the law intended she should have in pronouncing her non sui juris. The true rule is that if the act of the child is so unusual and so unnatural that it cannot, in the ordinary course of events, be anticipated, then that the act is a bar to its recovery. But when the act is one natural to its years, and arises as a natural consequence from the circumstances of the case and the negligence of the defendant, the act should have been anticipated and guarded against.
    VII. The negligence of defendants’ driver caused the injury complained of. The argument on behalf of the respondent will undoubtedly be, as it was on the trial, that the evidence shows that if the plaintiff had stood still the team and truck would have passed her by without touching her, and that if she had done as the other children did, and had drawn herself close up to the wall, she would have escaped uninjured. . That, in her fright, instead of doing either of these things, she placed herself in front of the horses, and therefore it was her act and not the act of the driver which caused the injury. It must be remembered that the child was placed in a sudden and perilous, exigency; and the question is not whether she did the wisest thing possible under the circumstances, but whether she acted as might have been expected from a child of her age. The position called for immediate action. When she turned to the wall she saw the other children crouched up against it, and she might well doubt whether safety lay in that direction. And it is clear that whatever movements she made were made in the space of the three feet between the truck and the wall. The duty of drivers in the public streets is to use care to prevent coming in contact not only with foot passengers who are directly in the path of the vehicle, but also foot passengers whom, under the circumstances, a reasonable man would expect to come in front of it. So, if a driver sees a passenger about to cross the street and does not stop his horses in time, it is negligence. Moebus v. Herrmann, supra. Where a child nine or ten years old was crossing a street and stopped two feet from the car track, with her back to it, to call her companions to follow her, and suddenly turning and attempting to cross, ran behind the horses and was struck by the dashboard of the car and run over, it was held that a nonsuit was error. The opinion says that the driver was not to expect the same prudence on the part of the child that he might look for from an older person. Mallard v. Ninth Ave. R. R. Co., 27 N. Y. St. Rep. 801. So, where an excursion train was left standing for some time opposite what had the appearance of a station, and the plaintiff leaving the train to look for water was struck by a locomotive on an intervening track, the court said that the railroad company should have anticipated the possibility of the passengers leaving the train, the day being hot and the train being crowded. Wandell v. Corbin, 38 Hun 393. The question in the case at bar is whether the driver, seeing the ■ child and her exposed position at a long distance off, should, under all the circumstances of the case, have anticipated that she would become frightened, and that in her efforts to escape she would act, like a child of her years, blindly and foolishly, and might come in the path of the horses. This surely was a question for the jury. They had the plaintiff before them, and could consider what effect her appearance would have upon the mind of a man of ordinary prudence. The rule which has been applied to plaintiffs in personal injury cases, that they are negligent if they depend upon the result of a nice calculation to save them from damages, might well be invoked in considering the conduct of the driver and his duty towards the child. Fright was the natural and necessary result of his conduct. One who has caused an injury .to another by failing to perform a duty cannot relieve himself of liability by showing that some cause arising out of such failure has' contributed to produce the result complained of. Hardy v. City of Brooklyn, 90 N. Y. 435. Considering all the testimony and the fact that after the collision the driver drove on (according to the witness McLean) without stopping, a jury might well have found that the driver had failed to look before him and had not seen the children at all. To believe otherwise it is necessary to consider him guilty of inhumanity and heartlessness difficult to comprehend. If, however, he failed to look before him, and by this violation of duty brought about the accident, he was equally guilty of negligence.

      James A. Seaman, for respondents, argued :—
    I. The nonsuit was put by the judge on the ground that negligence of defendants had not been proved, and that even if there had been some evidence of negligence on the part of their driver, the sufficient (and only) evidence showed also in connection therewith that the accident was not necessarily to be accounted for on the ground of such supposed negligence, but was as reasonably to be explained on the ground of the child’s act (running at the horses), of which there was ample proof, and of which there was absolutely no contradiction.
    II. There was no substantial proof of any negligence on the part of the driver. Neither the court nor the jury could be at liberty to infer negligence from the fact of the accident. Bulger v. The Albany Railway, 42 N. Y. 459; Henderson v. Knickerbocker Ice Co., 5 N. Y. Supplement, 909; Terry v. N. Y. Central R,. R., 22 Barb. 574; Fenton v. 2d Ave. R. R. Co., Court of Appeals, N. Y. Law Journal, March 17, 1891. There was no evidence tending to show negligence on his part, except the declaration of two or three witnesses that the horses were going fast, and the only evidence which could reasonably be considered as to the rate of speed was that of Mr. Reilly who was . following the truck. He testified that the truck was going faster than the ordinance allows, but his testimony was so self-contradictory, and involved him in such astonishing absurdities of statement, that neither judge nor jury would have been justified in believing his assertion that this heavy and heavily-loaded, truck was moving at any such rate of speed.
    III. It is to be noted that the claim of contributory negligence on the part of the child or her mother did not enter into the judge’s reasoning by which he sustained his conclusion. He expressly discarded it. The ground upon which it was sustained was this: It would be necessary to show that the driver was guilty of negligence, and this was not shown. But even conceding that it was shown that he was negligent, it' was necessary to go further and to - show that such negligence was the cause of the accident, and upon this point there was an utter failure of proof. Moreover, .there was evidence that the accident was caused by the child’s own conduct—her running towards the horses—and this evidence was absolutely undisputed. He did not nonsuit on the ground that negligence of the child contributed, but because it was the direct cause, so far as the evidence showed, and because no negligence on the part of the driver was shown to have contributed in the least to the result. This reasoning, it is urged, is irresistible.

      IV. As a general principle, when the fact is that the injury is occasioned by one of two causes, for one of which the defendant is not responsible, and for the other of which he is responsible, the plaintiff must fail unless his evidence shows that the injury was produced by the former cause, and he must fail also if it is just as probable that it was caused by the one as by the Other, as the plaintiff is bound to make out his case by the preponderance of evidence. Searles v. Manhattan Railway Co., 101 N. Y. 661; Malone v. Boston and Albany R. R. Co., 51 Hun, 532; Wilds v. H. R. R. Co., 24 N. Y. 430, 434.
    V. It was the driver’s business to look ahead, that what went on behind him, or suddenly occurred at his side, should not have distracted his attention from his horses, and what was in front of them in this public thoroughfare. Thus the evidence, taken together, so far from proving negligence on his part, seems especially consistent with the idea that he was driving properly and with due care.
    VI. Though the court, in dismissing the complaint, did not rely on the contributory negligence of the child or the imputed negligence of the parent as contributory negligence, still if there was such contributory negligence, it is available to sustain the non-suit. And that there was such negligence on the part of the mother, the evidence makes clear. A child less than four years old is allowed to go into the street to play, not under the care of any competent person, and in fact, as the event shows, without any proper protection. In the case of Weil v. Dry Dock, etc., R. R. Co., 119 N. Y. 147, a child over two years old, in summer when doors were opened, escaped from her father’s bakery and was injured on defendant’s track. The escape of the child in that case was apparently what the court held should have carried the case to the jury. Here, however, a child but little older is expressly allowed by her mother to go into the public street to play, without any proper protection, no precautions of any kind are shown, and the accident plainly in all the facts resulted from the mother’s imprudence and the absence of adequate protection. Unless the court is prepared to abandon in toto the doctrine of imputed negligence in cases of infants non sui juris and to hold that in all cases questions of this sort must be submitted to the jury, it should hold in this case that the tender years of the child, and the permission to go into the public street to play, without proper protection, established such negligence on the parents’ part as would have justified the court in taking the case from the jury and dismissing the complaint, even if the grounds on which the nonsuit was put had been otherwise insufficient. In the case of Mangam v. Brooklyn R R. Co., 38 N. Y. 455, it is held that a child between three and four years old is to be considered non sui juris and the act of the parent, as in this case, distinctly allowing such child to go into the street to play is negligence, must be imputed under the principle of Hartfield v. Roper, 21 Wend. 615, and, of itself, justifies-the non-suit. Honesberger v. 2d Ave. R. R. Co., 2 Abb. Ct. App. Dee. 378.
   By the Court.—Freedman, J.

The action was brought by the plaintiff, an infant less than four years old to recover damages for personal injuries, the result of her being run over by defendants’ team and truck driven by defendants’ driver. At the trial the complaint was dismissed on the sole ground that the evidence was insufficient to establish actionable negligence on the part of the defendants, and the only question presented by the appeal relates to the correctness of this ruling.

The injuries were sustained by the plaintiff in Fourth avenue, between 107th and 108th streets, in the city of New York, during the afternoon of July 22, 1890. At that place the actual width of the avenue was 25 feet from the curb on the easterly side of the avenue to a stone wall on the westerly side thereof. The roadbed between the stone wall and the curb was paved for a carriage road and there was no sidewalk along the wall. It seems that a boy named Henry Peters had a bird, and in showing it to another boy it flew out of his hands and went into a little hole in the stone wall. The boys ran over to get the bird. One knelt down and put his arm into the hole and the other stood by and tried to help him. Then another boy and the plaintiff went there, and all the children were stationed around that hole in the wall when defendants’ team and truck came along. The team consisted of a pair of worlc-horses, and the truck was a heavy one and had on it a load of five tons. The roadbed on the block in question, and indeed the entire distance between 104th and 114th streets, was nearly level. The testimony as to the rate of speed at which defendants’ horses passed the point in question, varied somewhat. One witness thought they were going at the rate of six miles per hour. One of the boys said they were going fast. Plaintiff’s mother said they were flying. As a whole the testimony was unreliable and even improbable. But that presented a question for the jury, unless it appeared that the mere speed was not the real cause of the injury. To sustain the action the plaintiff was bound to show affirmatively that negligence on the part of defendants’ driver was the proximate cause of the injury, exclusive of any other primary cause. Negligence is never presumed or inferred from the fact that an injury has been sustained. So, whenever the fact appears that the injury was occasioned by one of two causes, for one of which the defendant is not responsible and for the other of which he is responsible, the plaintiff must fail unless his evidence shows that the injury was produced by the cause for which the defendant is responsible, and he must fail also if it is just as probable that it was caused by the one as by the other. Searles v. Manhattan Railway Co., 101 N. Y. 661.

All the evidence shows that, while defendants’ horses and truck passed the spot where the children were stationed, there was a space of at least three feet between the wall and the horses and truck. One witness, who apparently was the most intelligent of all the witnesses, made it even fifteen feet. There is not a particle of proof that the driver directed the horses towards the children. For all that appears he was going in a straight line, and according to the testimony of one of the witnesses he quickly swung the horses away, almost into the gutter near the curb on the easterly side of the avenue, in order to avoid coming into contact with the plaintiff, but without being able to save the plaintiff. If, therefore, the plaintiff had remained where she was, she would have been safe. The other children remained near the wall and were not hurt. But the plaintiff, at the moment the horses approached, first drew closer to the wall and then suddenly started to cross the street, and thus came into collision with the horse nearest to the side of the wall. This was something which the driver, who had the right to act upon the appearances as they presented themselves, was not bound to anticipate. If there had been something in the appearances which called upon the driver to take notice that the plaintiff would attempt to run across, a different case would be presented. But in the absence of all evidence upon the subject, the driver is not chargeable with a neglect of duty in that respect. The result is that the rate of speed at which the horses were driven, was not the proximate cause of plaintiff’s injury, exclusive of any other primary cause, and that the injury was the result of an unavoidable accident.

The question of contributory negligence in the plaintiff or her parents requires no consideration under the circumstances.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.


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    BENJAMIN F. BATCHELDER, Appellant v. COUNCIL GROVE WATER COMPANY, Respondent.

      Action to recover principal and interest of certain bonds, secured by mortgage, etc.

    The facts in this case are somewhat different from the facts appearing in Mallory v. The West Shore R. R. Co., 35 N. Y. Super. Ct. 174, but the difference is so unimportant as not to work any different result. On a full examination of all the instruments, that were simultaneously executed in this case, namely, the bonds, the interest coupons and the trust deed or mortgage, for the purpose of discovering the true intent and meaning of the contract thereby made, the conclusion is unavoidable that, upon default in the payment of the interest and the continuance of such default for a certain period named, the principal sum of each bond thereby became due, not absolutely, but in the manner and with the effect provided in the trust deed or mortgage.
    The scheme of payment provided by the trust deed or mortgage clearly indicates that it was intended that the holders of the bonds should look to the mortgaged premises for their security in the event of default in the payment of the bonds; that the question of foreclosure and sale should be remitted to the discretion of a majority of the bondholders, and that they should share ratably in the proceeds.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    This is an appeal from so much of a judgment entered upon the decision and by the direction of the special term of this court as by its terms “ adjudged that plaintiff is not entitled to recover of the defendant the principal of the- bonds mentioned and described in the complaint in this action,” and also from that part of such judgment which by its terms “ limited the recovery in the action to the interest upon said bonds represented by the interest warrants mentioned in the complaint; ” and also from such parts of said judgment “ as awarded costs by way of an additional allowance to said plaintiff, or by which the recovery of any sum whatever is adjudged to said defendant,” and from the order making such allowance of additional costs.
    The action was for the recovery by the plaintiff of the principal and interest secured by three several bonds (with interest warrants or coupons attached) of which the plaintiff was the holder and owner, issued by the said defendant company, which bonds bore date the 1st day of July, 1887, and were numbered 43, 44 and 45 and were payable to bearer, for the sum of $1,000 each, on the 1st day of July, 1912, with interest at the rate of 6 per cent per annum, payable semi-annually, on the 1st day of July and January in each year; on the ground that such principal and such interest as remained unpaid had become due and payable by the terms of the bond. The said defendant having made default in the payment of the half-year’s interest due upon each of said bonds on the 1st day of January and July, in the year 1889, such interest having been duly demanded in manner and form as required by the condition of each of said bonds, and such default having continued for six months without the consent of the plaintiff.
    The answer admits the ownership of the bonds, etc., the continuance of the default; denies the demand, and avers substantially in bar and avoidance that the remedy sought in this action could not be had (except as to the interest). That the plaintiff was confined to the remedy provided by the terms of the mortgage, and that such remedy was exclusive, and the payment of the bonds, etc., could only be enforced by the foreclosure of the mortgage in the manner provided therein.
    The court found, as matter of fact, that the principal of the several bonds, as also the interest secured by the several coupons in suit, was due and payable at the time of the commencement of the action, and directed judgment for* the interest, but held “ that the plaintiff was not entitled to recover in this action the principal of said bonds.” And at the request of the plaintiff, as matter of fact, “ that the bonds mentioned in the complaint in this action did, by reason of the provisions contained therein and in said trust deed or mortgage, become due and payable by reason of the continued default of the said defendant in the payment of the interest thereon, as aforesaid, before the commencement of this action, but that the remedy of the plaintiff for the enforcement of the payments of said bonds is provided for by the terms of said trust deed or mortgage in the paragraphs thereof, above found, and is confined to the remedy so provided.”
    Judgment was entered in said action on the 28th day of June, -1890, in accordance with the conclusion above cited.
    The case as presented to this court is confined to the record and exceptions appearing therein under § 998, Code of Civil Procedure.
    The clauses of the bond and trust deed or mortgage are as follows: The trust deed provides: “ If default be made by the said party of the first part (defendant) on _any half-year’s interest on said bonds and the warrants or coupons for such -interest shall have been presented and its payment demanded, and such default shall have continued six months after such demand without the consent of the holders of such coupon or bond, then and thereupon the principal of all of said bonds shall be and become immediately due and payable, anything in said bonds to the contrary notwithstanding, and the said party of the second part may so declare, and upon the written request of the holders of a majority of said bonds then outstanding shall proceed to collect both principal and interest of all such bonds outstanding by foreclosure and sale of said property or otherwise as therein provided.” The provision of the bond as to the effect of such default is as follows: “ And in case of the default in the payment of any of the interest coupons attached to this bond in the manner provided in the trust deed, or mortgage hereinafter mentioned, then and in that case the principal sum of this bond shall become due in the manner and with the effect provided in the said trust deed or mortgage.”

      Thomas J. McKee, attorney, and Samuel J. Crooks of counsel, for appellant, on the questions considered, argued:—
    I. The plaintiff’s remedy at law for the recovery of the bond debt and interest is available to him, and may be resorted to, unless by the terms of the condition in the bond and those of the mortgage so far as referred to and adopted in such condition, such remedy is denied the plaintiff by the substitution of another and exclusive remedy, (a.) “ As a matter of settled law with reference to all mortgage securities the debt is the bond obligation or note of the debtor.” It is indeed secured by a mortgage, “ but the debt can be sued as against the debtor without enforcing the mortgage.” Polhamus v. Fitchburg R. R. Co., 50 Hun, 397-398. It is said by Mr. Justice Bradley in the State of Florida v. Anderson, 91 U. S. 679: “ Of course the company giving the bonds is primarily liable to the bondholders for principal and interest as they become due, inasmuch as the bonds import on their face an absolute promise to pay; and on failure to pay suit may be instituted at once against the company.” And Mr. Justice Swathe, in Gilman v. Ill. & Miss. R. R. Co., 91 U. S. 616, uses this language: “ In the present state of the law, where there is no prohibition by statute, it is competent for the mortgagee to pursue three remedies at the same time : he may sue on the note or obligation, he may bring ejectment, and he may file a bill for foreclosure and sale” (citing Hill on Mort., 9, 62 ; Ib. 104, 111; Andrews v. Setton, 2 Bland, 665). To the same effect are the cases of Northampton Bank v. Kidder, 106 N. Y. 221 ; McClelland v. Norfolk Southern R. R. Co., 110 Ib. 469, and Mallory v. West Shore R. R., 35 Superior Court, 174.
    II. It is well settled that to determine the character of the contract made resort must be had to each of the securities simultaneously executed by the defendant, viz., the mortgage, the bonds and coupons, for the purpose of discovering the intent and meaning of the contract thereby made. McClelland v. Norfolk So. R. R., supra, 474. “ The reference in the coupons to the mortgage and bonds, and in the bonds to the terms and conditions of the mortgage, clearly charge the holders of both coupons and bonds with the provisions contained in each of such instruments.” Ib. Such resort, however, is limited to the subject and object of the reference by the very nature of the case. The language used in the several securities, with reference to the effect of a continued default “in the payment of any of the interest coupons,” thus becomes a part of an entire contract, and part and parcel of the condition of the bond. Thus the provision in the bond, that in case of such continuous default “ the principal sum of this bond shall become due, in the manner and with the effect provided in the said trust deed or mortgage,” adopts and refers to the provision of the deed or mortgage upon that subject as follows: “then and thereupon the principal of all of said bonds shall be and became immediately due and payable, anything in said bond to the contrary notwithstanding.” The “effect” was, therefore, that for such continuous default in the payment of the interest upon one of such bonds, all the bonds became not only due, but payable immediately. No action was necessary on the part of either the holder of the bond or of the trustee named in the deed to produce “this effect.” The bonds in suit were therefore due and payable at the commencement of this action.
    III. By the terms of the mortgage, upon the happening of such event, i. e., that “all of said bonds hereby secured, shall be and become immediately due and payable,” the trustee named in the mortgage “may so declare and notify the company (defendant), and upon the written request of the holders of a majority of the said bonds outstanding, proceed to collect both principal and interest of all such bonds then outstanding,” etc. This declaration of the trustee was in no sense necessary to produce the effect already attained; it was only necessary for him to so declare to enable the bondholders as a body to act and control his (the trustee’s) action. The plaintiff’s bonds and coupons were due and payable by force of their terms and the default which had occurred, at once. The remedy provided by the trust deed was cumulative, not exclusive. In the case of McClelland v. Norfolk So. R. R. Co., supra, a recovery of a judgment at law for the amount of several coupons was affirmed as against the company upon its primary liability, and the learned justice (Ruges, C. J.,) who delivered the opinion says (p. 480): “The fact that the mortgage in question covers all the property of the corporation, and must eventually be enforced for the ¿benefit of its beneficiaries equally, would seem to subject the motive of the plaintiff in bringing this suit to the imputation of attempting to extort payment of his coupons from the company to the detriment of his associates; but this constitutes no defence to the action. The remedy of the bondholders against such an effort (if any there is) must be found in the exercise by the trustees of the power conferred upon them by the mortgage to take possession of the property covered thereby and use its proceeds for the common .benefit of all bond and coupon holders.” The recovery of the coupons depended upon the like condition as the princi¡Dal of the bonds. “ There was but one contract, and that evidenced by the bond, which covenanted to pay the bearer the sum of $1,000 at a fixed date with semi-annual interest at the rate of six per cent. The coupon is simply a mode agreed between the parties for the convenience of the holder in collecting the interest as it becomes due.” The City v. Lampson, 9 Wall. 478. Cited McClelland v. Norfolk So. R. R., supra. The recovery upon the coupon must therefore rest with and be governed by the bond, and both being due and payable, both or neither could be recovered in the same action. The decision of this court in Mallory v. West Shore R. R. Co., supra, invoked in aid of the defendant’s contention, is distinguished from the case at bar in that the facts involved were quite different. That case in the principles enunciated by the learned justice delivering the opinion (Sedgwick, J.,) in his discussion of the case, applied to the case at bar, would sustain a recovery of the principal of the bonds in question and reverse the judgment in this action.

      Isaac L. Miller, attorney and of counsel, for respondent, on the questions considered, argued:—
    I. As the record contains no statement or certificate that all the evidence given, on the trial is contained therein, the facts are not before the general term for review, and the only questions that it can properly consider are those of law. The facts as found by the judge at special term must, for the purpose of an appeal, be accepted as the facts of the case, and the court will not look into the evidence even so far as it is returned for facts to reverse the judgment. Travis v. Travis, 122 N. Y. 449 ; Aldridge v. Aldridge, 120 Ib. 614; Mahoney v. Prendergast, 12 N. Y. Supplement, 869, March 12th, 1891.
    II. In determining the character of the coupons in question the court is required to examine each of the securities simultaneously executed, viz.: the bonds, the coupons, and the trust deed or mortgage, for the purpose of discovering the intent and meaning of the contract thereby made. McClelland v. Norfolk R. R., 3 N. Y. State Rep. 250 ; S. C. 110 N. Y. 469, 474; Bailey v. County of Buchanan, 115 N. Y. 297, 301; Caylus v. New York K. & S. R. R., 10 Hun, 296, affd. 76 N. Y. 609; Jones on Mortgages, vol. 1, 4th ed., §76, vol. 2, 4th ed., §1179.
    III. It is well settled, particularly in this court, that a party holding a bond of this nature is not entitled to recover the principal sum therein named, and cannot maintain an action thereon for the principal thereof in case of non-payment of interest, but that the provision is intended to give the trustee named in said mortgage (with whom, in trust for the bondholder the covenant was made,) a right of action upon it for the foreclosure of the mortgage, thus making the security a more complete security for the bondholder. The covenant in these bonds was with the trustee, not with each bondholder, and the cause of action is in the trustee only. Mallory v. West Shore R. R. Co., 35 Super. Ct. Rep. 174; Pennock v. Coe, 23 How. U. S. 131; McClelland v. Norfolk R. R., supra; Jones on Mortgages, vol. 2, 4th ed., § 1183 ; Jones on Corporate Bonds and Mortgages, 2d ed., § 51.
    IV. It is equally well settled that a beneficiary cannot maintain an action until the trustee refuses to perform his duty in that respect, and then the trustee must be brought before the court as defendant. Western R. R. v. Nolan, 48 N. Y. 513, 517, cited and approved in Wetmore v. Porter, 92 N. Y. 76, 82. Davenport v. Dows, 18 Wallace, U. S. 637.
    V. The statute of this state provides in terms that the judgment debt’s equity of redemption in real property mortgaged shall not be sold by virtue of execution issued upon a judgment to recover for the mortgage debt or any part thereof, thus expressly negativing the idea that a creditor may, by means of a money judgment obtained in a suit on the bond, sell the mortgaged premises. Code, § 1432.
    VI. The whole scheme of the mortgage shows that it was clearly intended that the holders of the bonds should look to the mortgaged premises for their security in the event of default in the payment of either principal or interest; that the question of foreclosure and sale should be remitted to the discretion of a majority of the bondholders, and that the bondholders should share ratably in the proceeds. It never was supposed or intended that a bondholder could maintain an action at law and thus obtain a preference over others similarly situated with himself.
   By the Court.—Freedman, J.

On the argument of the appeal it was conceded by the learned counsel for the appellant that, if the judgment is right, the order for the’ extra allowance is unassailable, which involves that in such a case the order refusing a rehearing upon the question of an allowance is also correct. I have examined, therefore, only the question whether the judgment is right.' The facts of the case are somewhat different from the facts as they appear in Mallory v. The West Shore Hudson River R. R. Co., 35 N. Y. Superior Ct. R. 174, but the difference is so unimportant as not to work a different result. On a full and careful examination of all the instruments simultaneously executed in this case viz.: the bonds, the coupons, and the trust deed or mortgage, for the purpose of discovering the true intent and meaning of the contract thereby made, the conclusion is unavoidable that, upon default in the payment of the interest and the continuance of such default for a certain period named, the principal sum of each bond was to become due, not absolutely, but in the manner and with the effect provided in the trust deed or mortgage. The scheme of payment provided by the trust deed or mortgage shows that it was intended that the holders of the bonds should look to the mortgaged premises for their security in the event of default in the payment of the bonds; that the question of foreclosure and sale should be remitted to the discretion of a majority of- the bondholders, and that the bondholders should share ratably in the proceeds.

The judgment and orders should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.


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    HENRY W. DROGE, Respondent v. EUGENE H. CREE, Appellant.

      Title to real estate.—Action to recover the deposit made upon a contract for sale of real estate, and for damages, on the ground that the defendant could not give a good title.

      Held, That, upon the whole ease, it is clear that the defendant cannot give such a good and marketable title as the plaintiff has a right to demand, and that the judgment of the court below, holding the same view, should be affirmed.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.

      Appeal by defendant from a judgment entered in favor of plaintiff upon the decision of a judge at special term, a trial by jury having been waived.

      Ashbel P. Fitch, for appellant, argued :—
    I. As to law of record. The Revised Statutes provide for a registration of deeds of real estate for the protection of purchasers thereof. Part 2, chap. 3, § 1, provides that conveyances of real estate shall be recorded in the office of the clerk of the county where such real estate shall be situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser of the same estate, whose conveyance shall be duly recorded. Section 2 provides that the clerk of the county shall provide different sets of books for the recording of deeds and mortgages, in one of which sets all conveyances not intended as mortgages shall be recorded. Section 24 provides that every conveyance shall be recorded in the order and as of the time when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded from the time of such delivery. Section 25 provides that the recording officer shall make an entry in the record immediately after the copy of every conveyance recorded, specifying the time of day, the month and year when the conveyance was recorded. These sections must be taken together to show what constitutes a perfect record of a conveyance of real estate that shall be a sufficient notice to a subsequent purchaser. If a deed is left with the proper officer for record, and is lost or destroyed without being copied into the proper book of deeds, there has not been in such case a compliance with sections 1 and 25 of the Revised Statutes above mentioned, and therefore is not notice to a subsequent purchaser. There is no evidence of any such loss in the case at bar. An agreement giving one mortgage priority over another, and recorded in the book of deeds instead of the book of mortgages, is not notice to subsequent purchasers or assignees from the mortgage. Gillig v. Maas, 28 N. Y. 191; Bank for Savings v. Frank, 45 Superior Ct. 405. A deed intended as a mortgage and not recorded in the book of mortgages, is no notice. White v. Moore, 1 Paige, 551; Brown v. Dean, 3 Wend. 208. It could not be claimed that where a deed is properly drawn and left for record, but by mistake the description is so recorded as to cover an adjoining lot, that the record is good to the lot described in the deed. The case of the Manhattan Co. v. Laimbeer, 108 N. Y 578, relied upon by counsel for plaintiff, is not in point. There the question was under the statute for the formation of partnerships, which provides that the certificate thereof shall be filed and also recorded in the county clerk’s office. The certificate was filed but not recorded; and the question was whether this omission prevented the formation of a limited partnership, and left the parties who attempted to form the partnership liable as general partners.
    II. Application of the law of record to this case. The evidence shows that the deed from Elton to Stillman was not recorded in the set of books which is kept for the record of deeds in the office of the register of Westchester county, but- was recorded in a book of deeds of “ Rural Cemeteries.” The chief searcher, Mr. Dick, testified that some of the deeds of Rural Cemetery lots are recorded in the regular set of books for deeds. Under the statute there could be kept but one set of books in which to record deeds (87 N. Y. pp. 260, 264). But one set was here kept, and the deed in question was not there recorded. In addition to delivery, to keep the record perfect, it was necessary to record the instrument at the proper time, in its proper order, in the proper book, (87 N. Y. supra, 264), not simply to record it anywhere.

      III. As to plaintiff’s claim of adverse possession. The person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law, unless the premises have been held adversely to the legal title for twenty years. Code, § 368. The evidence shows that the legal title to the land in question is in the defendant from the executors of the last will and testament of Elton (who is the agreed source of title), through several conveyances. To constitute an adverse possession, land is deemed possessed when usually cultivated or improved, or when protected by a substantial enclosure, or when used for fuel or fencing timber, or for purposes of husbandry, or for ordinary use of the occupant. Code, § 370. Possession must be actual, open and visible. Brown v. Volkening, 64 N. Y. 76-82; Miller v. Long I. R. R. Co., 71 Ib. 380 ; Thomson v. Burnham, 61 Ib. 52 ; Pope v. Allen, 90 Ib. 298; Page v. Waring, 76 Ib. 463, 470. Such possession, under an unrecorded deed as will amount to notice to a subsequent purchaser, must be under the unrecorded deed, and must be actual, open, visible, so that the subsequent purchaser could go upon the land and obtain, by inquiry, the information of the unrecorded deed. It was incumbent upon the plaintiff to show a possession for twenty years. If any possession is proved, it is only for about eighteen years. A purchaser from the heir or from an executor will be protected to the same extent against an unrecorded deed from the ancestor as though he had purchased from the ancestor himself. Webb on Record of Title, § 184; Martindale on Conveyancing, 2d ed. p. 262.
    IV. The power of sale given by the will of Elton was exercised by the executors, and the case of Chamberlain v. Taylor, 105 N. Y. 185, is not in point. The will of Elton does not create an express trust under the statute. The power to sell is imperative and although the title to the land may have vested in the widow and children, it was subject to the execution of the power. The power of sale having been exercised, there was an equitable conversion, and the title and interest of the widow and children was thereby transferred to the proceeds of the sale and in the proportions or shares provided by the testator. Dodge v. Phelps, 23 N. Y. 69 ; Crittenden v. Fairchild, 41 Ib. 289; Lent v. Howard, 89 Ib. 169; Cooke v. Platt, 98 Ib. 35; Konvalinka v. Schlegel, 104 Ib. 125 ; Cotton v. Taylor, 42 Barb. 578.

      Poor & Puffy, attorneys, and Walter S. Poor of counsel, for respondent, argued :—
    I. Appellant was bound to give respondent a marketable title. If there is a reasonable doubt as to the title ofiered, such as to affect the value of the property, and to interfere with its sale to an innocent purchaser, the title is not marketable and the purchaser cannot be compelled to complete his purchase. Hellreigel v. Manning, 97 N. Y. 56; M. E. Church v. Thompson, 108 Ib. 618; McPherson v. Smith, 49 Hun, 254, 257.
    II. A reasonable doubt as to the title offered exists. Such a doubt arises if it be shown that there are outstanding claims to a part of the premises on the part of persons not before the court. Fleming v. Burn-ham, 100 N. Y. 1, was a motion to compel a purchaser to take title in an action for partition. It was objected on the part of the purchaser: (1) That a quit-claim deed made by two out of three acting executors was invalid. (2) That the children under the will took an absolute fee in the premises. (3) That there was a question' of adverse possession as to one of , the heirs who had died, and parties claiming under him were not made parties. The court refused to compel the purchaser to complete his purchase, for the reason that while a decision would bind the parties, it would not bind those not before the court, and that a purchaser should not be compelled to accept a title that might subject him to further litigation. Appellant could not maintain ejectment under his title, and therefore cannot give respondent a good title. Chamberlain v. Taylor, 105 N. Y. 185.
    III. Appellant’s first' exception to a finding of fact was properly overruled. A copy of the conveyance, duly certified by the recording officer, was introduced. This is ample proof that the deed was received in the proper office for record. It could be there for no other purpose. Nichols v. Raynolds, 1 R. I. 30-36; Dubose v. Young, 10 Ala. 365. And leaving the deed in the proper office was all that Stillman was bound to do to protect himself and make the record complete as to him. Mut. L. I. Co. v. Dake, 87 N. Y. 257, 264; Simonson v. Falihee, 25 Hun, 570; Bedford v. Tupper, 30 Ib. 174. The failure of a public officer to perform his duty cannot prejudice parties who have complied with a statute made for their protection. Manhattan Co. v. Laimbeer, 108 N. Y. 578.
    IV. Upon the argument before the court below it was insisted that a record made in the wrong book was notice to no one, and Gillig v. Maas, 28 N. Y. 191, and Bank v. Frank, 45 Super. Ct. 405, were cited in support of the proposition. It is perhaps enough to say that Gillig v. Maas was decided in 1863, and Bank v. Frank in 1879, while M. L. Ins. Co. v. Dake was decided in 1881, Bedford v. Tupper in 1883 and Simonson v. Falihee in 1888; so that if the cases cited by appellant stated the rule to be as appellant claims, they must be considered as overruled by the later decisions. But neither Gillig v. Maas nor Bank v. Frank decide as appellant claims. In Gillig v. Maas the decision is placed squarely on the ground that the instrument was not a proper one for record. (See 28 N. Y. 191, p. 212.) And so it was in Bank v. Frank. (See 45 Super. Ct. 404, p. 407.) Nor do White v. Moore, 1
      Paige, 551, nor Brown v. Dean, 3 Wend. 208, cited below, apply here. The statute expressly declares that unless such papers be recorded together as a mortgage, the party for whose benefit it was made shall derive no advantage from the record. 1 R. S. 756, §§ 2, 3. In those cases the deeds were absolute and recorded as such, but there were defeasances not recorded showing the transaction to have been a mortgage, not a sale.
   By the Court.—Freedman, J.

This action was brought to recover back the deposit made by the plaintiff on a contract for the purchase and sale of real estate and to recover the cost of searching the title, upon the ground that the defendant was unable to give a good title to the premises according to his contract. The only question on this appeal is whether or not the defendant was able to give a good marketable title. The plaintiff was entitled to a good marketable title within the rule laid down by the Court of Appeals in Hellreigel v. Manning, 97 N. Y. 56; The Methodist Episcopal Church Home v. Thompson, 108 Ib. 618, and Moore v. Williams, 115 Ib. 586.

It appears that one Robert H. Elton was the common source of title. He laid out a cemetery and filed a map thereof, and parts of two of the lots of said cemetery are a part of the premises the title to which is in question. These two lots Elton conveyed by warranty deeds and with reference to the map to James Stillman and James L. Parshall, and the said grantees entered into use and occupation under said deeds. The plot laid out for a cemetery was enclosed and divided into lots, and there were paths between the lots. There is, no proof that the cemetery was ever incorporated. The deeds for these two lots were left with the proper officer for record, and were recorded in a book of deeds kept in the office of the proper recording officer, but they were not recorded in the book prescribed by statute for the record of deeds under the statute, but in a book entitled, “ Record of Deeds, No. 1, Rural cemeteries, Westchester county.”

Robert H. Elton died, leaving a will, which gave his executors no title to his real property, but which contained the following power, viz.: I authorize, empower and direct my executors hereinafter named at such time or times and in such manner and parcels as they shall deem for the best interest of my estate, to sell and convey all my real property and estate. And I also empower my said executors to carry out any and every contract which I have made for the sale of any ¡Dart or parcel of my said real property, and to execute and deliver such deed or deeds as shall be necessary and proper to convey the premises as contracted on the compliance with the terms of such contract by the party contracted with.”

On the 31st- day of December, 1874, more than 20 years after the conveyances to Stillman and Parshall above referred to, the executors of Robert H. Elton, assuming to act under the power in the will as quoted, executed a quit-claim deed, covering the premises in question, to Mary Beck, under whom the defendant claims title. It is conceded that the lots conveyed to Stillman and Parshall cover the fronts of the lots which the defendant agreed to sell to the plaintiff.

The facts being as stated, and the defendant not having established title by adverse possession in himself and his predecessors for at least 20 years, there can be no doubt of the correctness of the judgment, even if it be assumed that the deeds to Still-man and Parshall were not recorded as prescribed by statute. The power of the executors attached only to real estate of which their testator died seized. It did not attach to real estate which the testator had conveyed. Stillman and Parshall having acquired title to their respective lots by warranty deeds from the testator himself, and having entered thereunder, the executors had no more right or power to sell the said lots, or any part thereof, than the testator would have had at that time, if he had lived and had undertaken to do so, for there is not a particle of evidence that the testator or the executors ever regained title or possession from Stillman' and Parshall. It is unnecessary, therefore, to determine with precision the effect to be given to the recording of the deeds to Stillman and Parshall. Attention may be called, however, to the fact that there are authorities to the effect that leaving an instrument required by law to be recorded in the proper office for record, is all that a party is bound to do, and that the failure of a public officer to perform his duty will not prejudice a "party who has complied with a statute made for his protection. The Mutual Life Ins. Co. v. Dake, 87 N. Y. 257 ; Manhattan Co. v. Laimbeer, 108 Ib. 578.

Upon the whole case it is clear that the defendant cannot give such a marketable title as the plaintiff has a right to demand.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.