author: Barnard, P. J.:

text:
    JOHN H. VAN CLIEF and Others, Respondents, v. HANNAH R. VAN VECHTEN, Appellant, Impleaded with Others.

      Mechamos’ Ken — under chapter 342 of 1885 — what is covered by — amendment of a repealed statute.

    Under the lien law (chap. 342 oí the Laws of 1885, and chap. 316 of 1888) the liability of the owner to pay is not necessarily a liability which could he enforced when the lien was filed, nor does the validity of the lien necessarily depend on the right of the contractor to collect the sum of money himself from the owner. It covers the value of the building at the time of the filing of the lien.
    The legislature by amending may revive a repealed statute.
    Appeal by the defendant Hannah. R. Yan Yechten from a judgment, entered in the office of the clerk of the county of Richmond on the 9th day of March, 1889, upon the report of a referee in favor of the plaintiff.

      Ezekiel Fiwmcun and A. H. Stoiber, for the appellant.
    Thornton, Earle ds Eiendl, for the respondents.
   Barnard, P. J.:

Hannah R. Yan Yechten mane an agreement with one George M. Smalle, by which Smalle was to furnish all labor and materials for and to complete a building on her land. The contract-price was $4,298, payable by installments. The first two installments were earned by Smalle and were paid, amounting to $2,000. The contractor did work and furnished material to the amount of $900 beyond what was paid for by the owner to the contractor, and then abandoned the contract without fault upon the part of Mrs. Yan Yeclifcen. Smalle bought lumber of the plaintiff, which went into the building. ' The referee allowed a judgment to him to the extent of $800, and the question is whether this judgment was right under the lien law. The lien was filed before the abandonment of the contract by Smalle.

The lien law of 1885 (chapter 342, Laws of 1885, chap., 316, Laws of 1888) which was in force when the lien was filed, gave a lien, with a limitation that all liens shall not exceed the amount remaining unpaid on the contract at the time of the filing of the lien. As between contractor and owner, nothing was due under the contract, but the property of the lienor had been used in the building and the owner had received value therefor over and above her jiayments to the extent of this judgment. In Heckmann v. Pinkney (81 N. Y., 211) the Court of Appeals held that the words u liable to pay at the time ” of filing the lien, which was the enactment under the lien law of 1875, meant liability to pay by virtue of the contract according to its terms, either presently or in future. That the liability was not necessarily a liability which could be enforced when the lien was filed, which construction would defeat the law. The words in the present law are broader. By the first section of the act of 1885, and as amended in 1888, the liens are to be limited so that the owner would not be compelled to pay a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of the filing of such lien. The lien is, therefore, for the value of the materials; it covers the plaintiffs lot. All the liens must not exceed the contract-price. The lien does not necessarily depend on the right of the contractor to collect the sum of money himself from the owner. It covers the value of the building at the time of the filing of the lien. (Graf v. Cunningham, 109 N. Y., 369.)

The County Court had jurisdiction of the action to foreclose the liens. The legislature had power to confer original jurisdiction on the County Court. (Constitution, § 15, art. 6.) Chapter 480, Laws of 1880, confers jurisdiction on County Courts to the amount of $3,000. This law purported to amend a repealed law, but the power of the County Court can be conferred by reviving a repealed law. The law of 1880 has full force of itself. The lien law of 1885 gives courts of record jurisdiction to enforce mechanics’ liens to the extent of the jurisdiction of the court in money judgments. „

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

DyemaN, J., concurrred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.: Dykman, J.

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STANLEY H. LOWNDES, Appellant.

      Planting oysters —Penal Code, see. 441 — indictment under.

    Under section 441 oí the Penal Code two offenses are defined; one where a person, who is not an actual inhabitant and resident of the State, plants oysters in the waters of the State without the consent of the owner of the same or of the shore; the other, where a non-resident gathers oysters from a bed of natural-growth oysters for his own benefit or for the benefit of a non-resident employer. It is not necessary to establish, under an indictment charging the offense of planting oysters by a non-resident, that such planting of oysters was for his own benefit or for the benefit of a non-resident employer. (Dykman, J., dissenting.)
    No title to land under water can be acquired by the planting of oysters thereon for any length of time.
    Appeal by tbe defendant from a judgment of conviction of tbe defendant under an indictment charging that “ tbe said Stanley H. Lowndes, then not being an actual inhabitant of tbe State of New York, at tbe town of Huntington, in tbe county of Suffolk aforesaid, on tbe 14th day of July, 1888, unlawfully and wrongfully planted oysters in the waters of Huntington bay, in said town and county, without tbe consent of the owners of the same, to wit, tbe board of trustees of tbe town of Huntington, against tbe form of tbe statute in such case made and provided, and against the peace of tbe people of tbe State of New York and their dignity.

      Martin J. Keogh, for tbe appellant.

      Charles JR. Street and JN. S. AeTcerly, for tbe respondent.
   Barnard, P. J.:

By section'441 of the Penal Code, it is made a misdemeanor for a person who is not an actual inhabitant and resident of tbe State to plant oysters in tbe waters of tbe State without tbe consent of tbe owner of tbe same or of the shore. Tbe same section makes it a misdemeanor for a non-resident to gather oysters from a bed of natural-growth oysters for his own benefit or for the benefit of a nonresident employer.

There is no connection between tbe two offenses. One is made out by.mere planting-without tbe consent required, the other prevents non-residents from getting oysters from natural beds for tbeir own benefit. A non-resident may not plant. A non-resident maybe employed by a resident to gather from natural beds for the resident, but he may not gather himself or employ another to do so. The indictment is, therefore, good as it charges an offense under the section cited for planting without consent of owner being a non-resident. If this be the proper reading of the statutes, the offense was proven by the planting without consent, and the question whether the defendant intended to violate the law is immaterial. The planting was in Huntington bay, and the question of fact whether the bay was within the grant from Governor Nichols, and from Governor Dongan, and from Governor Fletcher, was put in evidence.

These several colonial grants have been conferred by the State of New York, and the question was one of description. It was proven by witnesses, who were acquainted with the premises, that Huntington bay was within the description of the grants in these patents, and the jury have so found. The planting was in this bay, and the indictment charges that the place of planting was without the consent of the trustees of the town of Huntington. The title to the town is fully proven and is a good title. (Brookhaven v. Strong, 60 N. Y., 72.)

The legislature, by chapter 279, Laws of 1888, ceded to the trustees of the town of Huntington all its right in Huntington bay. There was no proof in the case which permitted the jury to find otherwise, and there was, therefore, nothing upon which to base the usual charge that all doubts are to be cast in favor of the accused, so far as evidence related to the town of Huntington title.

The only other defense was a title by user for over twenty years in the defendant. No title to land under water can be acquired by the planting of oysters for any length of time without any other title than is acquired thereby.

The conviction should be affirmed.

Pbatt, J., concurred.

Dykman, J.

(dissenting):

The defendant was indicted under section Ml of the Penal Code, which reads as follows: “A person who, not being at the time an actual inhabitant and resident of this State, plants oysters in the waters of this State, without the consent of the owner of the same or of the shore, or gathers oysters or other shell-fish from their beds of natural growth, in any such waters on his own account or for his own benefit, or the benefit of a non-resident employer, is guilty of a misdemeanor, punishable by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars, or both.”

The cultivation of oysters in this State, and especially in the waters of Long Island sound, in the vicinity of the city of New York, has come to be a very large and lucrative industry, and it has received encouragement and protection from the legislature in various ways; and the courts have never hesitated to effectuate the salutary purposes of the laws which have from time to time been enacted for such purposes.

The indictment against the defendant accuses him of the crime of planting oysters in the waters of the State of New York without the consent of the owners of the same, and - without being at the time an actual inhabitant and resident of the State of New York, committed without being an actual inhabitant and resident of the State of New York, at the town of Huntington, in the county of Suffolk aforesaid, on the 14th day of July, 1888, by willfully and wrongfully planting oysters in the waters of Huntington bay, in the said town and county, without the consent of the owners, to wit, the board of trustees of the town of Huntington. * * *

The statute under which this defendant was prosecuted makes it criminal to plant oysters in the waters of this State without the consent of the owner of the same or of the shore, or to gather oysters or other shell-fish from their beds of natural growth in any such waters, on his own account or for his own benefit, or the benefit of a non-resident employer, and an indictment under the statute must contain all the facts essential to constitute the crime.

It is necessary, under this statute, to do more than ehai’ge and prove that a defendant willfully and wrongfully planted oysters in the waters of Huntington bay without the consent of the owners. An essential element of a crime, under this statute, is the planting of oysters on the account of the defendant, or for his own benefit, or the benefit of a non-resident employer; and without that ingredient, there is no guilt and no crime.

We are not dealing with an act which is wrongful of itself, but one which is wrongful because it is prohibited by positive law, and, therefore, all facts necessary to constitute the offense must be specifically stated and charged in the indictment. (People v. Clements, 42 Hun, 353; People v. Monteverde, 43 id., 447.) The objection to the indictment was distinctly raised by demurrer, and we think the demurrer should, have been sustained.

This conclusion renders an examination of the merits unnecessary, but we feel justified in saying that the proof fails to bring the defendant within the mischief against which the statute in question was aimed. He was only a hired man, and did nothing for his own benefit. He claimed the right to go on these grounds and plant oysters for his father, and his father claimed the right to occupy the grounds, and he was never warned off or disturbed in any manner.

Upon the first ground examined the conviction should be reversed and the defendant discharged.

Conviction and judgment affirmed.


author: Baiínard, P. J.:

text:
    In the Matter of the Estate of EDGAR M. VAN KLEECK, Deceased; ISAAC W. SHERRILL, as County Treasurer of Dutchess County, Appellant; CHRIST CHURCH Of POUGHKEEPSIE, Respondent.

      Legacy, given to build a church — not liable to the collateral inheritance tax.

    A testator, by Ms will, directed Ms executor, after the death of his wife, to pay “to Christ Church of Poughkeepsie $10,000 toward the building of a new church, or the renovation of the present one.” Subsequent to the testator’s death, and during the wife’s lifetime, in anticipation of the payment of this sum of money, a new church edifice was built by means of borrowed money.

      Held, that this $10,000 was not liable to the collateral inheritance tax, although, as the church had no general exemption from taxation, if the gift had been an absolute one to it, and had not been made for the purpose of building a new church or repairing the old one, it would have been liable to the tax.
    Appeal by Isaac W. Sherrill, county treasurer of Dutchess county, from an order of the surrogate of Dutchess county, dated and entered in his office on the 16th day of July, 1889, and particularly from so much of said order as holds or decides that there is to be no collateral inheritance tax assessed upon the legacy of $10,000 to Christ Church of Poughkeepsie, and that said legacy is exempt from such tax.

      Marti/n Heermcuxee, for county treasurer, appellant.

      Robert E. Taylor, for Christ Church, respondent.
   Baiínard, P. J.:

The testator died on the 6th of January, 1887. By his will he directed a fund of $40,000 to be set apart, and the income thereof to be paid quarterly to his wife during her life. The wife is still living. After her death the will directs his executor to pay to Christ Church of Poughkeepsie $10,000 towards the building of a new church or the renovation of the present one.” Since the testator’s death the church has built a new church edifice, and has paid for the same, using this remainder for this purpose, by a loan of said sum in anticipation of its payment over after the life estate ceases. The question presented is whether this $10,000 is liable to the collateral inheritance tax. The Revised Statutes provide that every building for public worship, and the lot on which it is built, and the furniture belonging to it, shall be exempt from taxation.” (2 R. S. [Throop’s 7th ed.], 982, § 3.)

The collateral tax law (chapter 713, Laws of 1887) imposes a tax of five per cent on all gifts by will to corporations other than such gifts when made to corporations “ now exempted by law from taxation.” The church in question has no general exemption from taxation, and if the gift was an absolute one, and not for the purpose of building a new church or repairing the old one, the case would be embraced in Catlin, v. Trustees, etc. (113 N. Y., 133).

The question, therefore, in this case is, whether a gift for a new church, which is exempt, falls within the exemption of the collateral tax law, which exempts this corporation from taxation upon this new church. The church takes as trustee for a specific purpose, and there was no need of the testator directing his executor to build the church, in. order to make the subject of the gift exempt as a church edifice after the money has been put. in it. A valid trust is not affected by tbe fact that the beneficiary is appointed trustee. When the church takes the money it gets no title other than a trust title until the money is put into a new building or used on the old one. The spirit of the collateral inheritance tax is in favor of the exemption. Property is directed to be exempt from taxation, and when this $10,000 became property in the hands of the church it was to a church edifice and exempt “ by law.”

The judgment should be affirmed, with costs.

DyKMAN, J., concurred.

Order of surrogate affirmed, with costs.


text:
    SARAH MARTINO, Respondent, v. CORA KIRK, APPELLANT.

      Phydeiam, — licensed, under chapter 513 of 1880, in one county may practice in other counties of the State.

    Under chapter 513 of the Laws of 1880, where a physician, with the authority for so practicing, has once registered in the county in this State where he is practicing, or intends to commence the practice of medicine, he is authorized to practice anywhere within the State, and no new registry is necessary in order to authorize him to visit a patient in any other county of the State.
    Appeal by the defendant from a judgment, entered, after a trial at the Kings County Circuit, a jury having been waived, in the office of the clerk of the county of Kings on the 11th day of April, 1889, upon the decision of the justice, who found that the defendant was indebted to the plaintiff in the sum of $206.50.

      Q-eo. W. Stephens, for the appellant.

      John Andrews, for the respondent.
   Barnard, P. J.:

The plaintiff is a physician residing in Brooklyn ; the defendant lived at Mt. Yernon in Westchester county. The plaintiff made numerous visits to and treated the defendant as her physician at Mt. Yernon, The amount of the bill does not seem to be seriously disputed. The fact appears that the plaintiff was registered as a physician in Brooklyn, but was not so registered in Westchester county.

It is proven that the plaintiff advertised in the Westchester eonnty paper that she would meet patients on certain days at Mt. Yernon, where she had an office, for the purpose of treating persons for diseases. The plaintiff was under no obligation to register in Westchester county. She registered and had her office in Brooklyn. She was practicing in Kings county and duly registered there. Chapter 513, Laws of 1880, requires registry in the county where the physician is practicing or intends to commence the practice, with the authority for so practicing.” The practice referred to in the act is defined to be “ within the State.” The plain meaning of the law is, therefore, that the place of practicing is the place to register, and once registered the practice is legalized within the State. No new registry is needed to visit a patient out of the county. The fact that a physician gives two days in a week out of his county to see patients does not make a new practice in a new county, unless intended as a cover for a real change of place.

It is simply practicing medicine in Kings county with patients in another county. Even if the advertising an office in Westchester county was an offense, the plaintiff cannot avail herself of this fact. The contract with the plaintiff was not proven to be a Westchester contract.

The plaintiff was in Brooklyn two" or three times and was treated there. The other visits were received at the plaintiff’s own residence in Westchester county. She was never in the Westchester office, was never treated there, and it is not proven that the original contract came from the advertisement in Westchester county. There is no defense to the claim proven. (Gay v. Seibold, 97 N. Y., 472.)

•The judgment should be affirmed, with costs.

DyemaN, J., concurred Pratt, J., not sitting.

Judgment affirmed with costs.


text:
    JOHN A. MORRIS and the NEW YORK JOCKEY CLUB, Respondents, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Appellants.

      Eminent domain — chap. 532 of 1884 — provision in an order of confirmation requiring the owner to convey, is illegal, hut does not destroy the effect of the confirmation-improper appointment of a commissioner to act, how waived.

    In a proceeding for tlie condemnation of land by the city of New York, under chapter 522 of the Laws of 1884, for a public park-way, it was objected by the owners of the land that such proceedings were irregular and void by reason of an illegal provision in the order of confirmation of the award of the commissioners, requiring the execution of a deed by the owners of the premises to the city of New York upon the payment of the award, and also by reason of an alleged incapacity on the part of one of the commissioners.

      Held, that, conceding that the provision in the order of confirmation, requiring the execution of the deed, was unauthorized and unwarranted, yet, as it was not made'a condition of the payment of the award, it did not render the order void as an order of confirmation.
    That such direction or provision was subject to correction, upon motion or by appeal, but the main and proper purpose'and effect of the order, as one of confirmation simply of the report, remained unaffected by this provision, with all the lawful results which flowed from the fact of confirmation.
    That an objection that one of the commissioners had been appointed ex pm'te, and that such appointment was a nullity, could not be raised after the report of the commissioners had been confirmed by a competent tribunal.
    Appeal by the defendant from an order, entered in the office of the clerk of the county of Westchester on the 3d day of September, 1889, as resettled by direction of Mr. Justice Babtlett, whereby it was ordered that the motion to vacate an injunction order theretofore granted in the above-entitled matter by the county judge of Westchester county, under date of August 12, 1889, be denied, and whereby it was further ordered that the motion to vacate the injunction order granted by the countv judge of Westchester county, under date of August 19, 1889, be dismissed.

      Thomas P. Wiolces, for the appellants.

      Noah Dmis, Henry C. Henderson, Charles E. Coddington and Alfred B. Grmhshanlc, for the respondents.
   Barnard, P. J.:

This is an appeal by defendants from an order of Special Term of date August 22, 1889, denying defendants’ motion to vacate a temporary injunction order made in the action on August 12, 1889, by the county judge of "Westchester county, and dismissing the motion to vacate the injunction order granted by said county judge, dated August 19, 1889.

The object of the action and the effect of the injunctions is to enjoin the defendants from entering upon or interfering in any manner with certain premises described in the complaint, originally the property of the plaintiffs, and which the defendants claim to have acquired by virtue of proceedings in behalf of the city of New York, under chapter 522 of the Laws of 1884, for a public park-way.

There is no question made that proceedings were instituted under that act to acquire these lands. Commissioners were appointed, hearings' had before them, an award made to the plaintiffs, and the report of the commissioners upon the matter was confirmed by order of the court of date December 12, 1889. And by the provisions of the second section of the act, upon and by reason of the final confirmation of the report, the city of New York became seized in fee of the lands in question, with the right to immediate possession for the use of the public, and the right to the award made by the commissioners for these lands became vested in the plaintiffs; and by the fourth section the defendants became bound, within four months after the confirmation, to pay the award, and on their failure to do so, a right of action to recover the same is conferred upon the plaintiffs.

The title of the defendants under these proceedings, and their right to possession of the premises is clear, unless there is some fatal defect in the proceedings. And it is claimed by the plaintiffs that they are irregular and void by reason of an illegal provision in the order of confirmation, requiring the execution of a deed of the premises to the defendants by the plaintiffs upon the payment of the award, and also by reason of an alleged incapacity of one of the commissioners. It may be conceded that the provision in the order requiring the execution of a deed is unauthor-' ized and unwarranted, but it in no manner operates to render void the order as an order of confirmation.

The improper direction or provision is subject to correction upon motion or by appeal, but the main and proper purpose and effect of the order, as one of confirmation simply -of the report, remains unaffected by this provision with all the lawful results which flow from the fact of confirmation. The court had jurisdiction of the subject-matter and of the parties, and was competent to make the order, which in these proceedings is held to be of the nature of a judgment, and it would be an anomaly to hold that the whole judgment or order was nullified by reason of the insertion of this provision.

The order does not purport to make the giving of the deed a condition for the payment of the award. It first confirms the report of the commissioners; by a later clause directs that the sums awarded to the various owners shall be paid to them within four months after the entry of the order of confirmation; and then, in a later and independent clause, provides that whenever the awards are paid to the owner, he shall execute a deed of the premises.

As to the objection based upon the alleged incapacity of one of the commissioners, it was, for the purpose of deciding upon a similar objection in Astor v. Mayor, etc. (62 N. Y., 588), stated that the objection was that one of the commissioners had no jurisdiction to act, his appointment being exporte and a nullity; and the court say that, “ without, however, discussing the question as to the legality of the appointment of this commissioner, it is sufficient to say that it is too late to raise the question after the report of the commissioners has been confirmed by a competent tribunal.” And we must regard that case as decisive upon the question raised in this case as to the competency of the commissioner. The act of 1884, under which these proceedings were taken, is similar, almost identical, in its provisions to the act of 1813, in reference to streets, etc., in New York, an act which has been before the courts and received judicial construction and approval in repeated instances, and which has stood the test of three-quarters of a century of experience under it, and which, in all its main and essential provisions, must be held to be established as constitutional and valid. No sufficient reason appears, upon an examination of the objections raised in this matter, for the further interposition of the arm of the court preventing the defendants from taking possession of the premises which they have acquired for public uses.

The order appealed from should be reversed, and the injunction orders granted in the proceedings vacated and set aside, with costs.

Peatt, J., concurred.

Order refusing application to vacate injunction reversed, with costs and disbursements.


author: Dykman, J.:

text:
    MATTHEW CLUNE, Respondent, v. PATRICK FORD and PATRICK EGAN, Appellants.

      Guaranty — what consideration will support an agreement to pay a debt already in great part incurred.

    A. guaranty was given to the proprietor of a hotel, in New York city, in the following words:

      “We hereby agree to guaranty the expenses of the members of the Gaelic Athletic Association to the sum of $650, or the amount due under that figure.
    “PATRICK EGAN.
    “PATRICK FORD.” .
    The association was in arrears for board, at the time that the instrument was executed, in the sum of about four hundred and seventy-five dollars, and they lived at the hotel and incurred expenses thereafter to the amount of, $175.
    Held, that the fact that the proprietor of the hotel, upon the faith of the instrument of guaranty, furnished board to the extent of $175, afforded a sufficient consideration to sustain the guaranty to the extent of the whole amount named in the instrument.
    Where the collateral undertaking of guaranty is subsequent to the creation of the debt, and was not the inducement leading to its creation, although the consideration need not be expressed in the writing, yet there must be some consideration shown having an immediate respect to such liability.
    Appeal by the plaintiff from a judgment, entered, after a direction of a verdict in favor of the defendants at the Westchester County Circuit, in the office of the clerk of the county of Westchester on the 6th day of June, 1889; and also from an order, entered in said office on the 14th day of June, 1889, denying the defendants’ motion for a new trial entered upon the minutes of the court.

      W. Lome O’Neil, for the appellants.

      Arthur J. Burns, for the respondent.
   Dykman, J.:

This is an action upon a written guaranty in these words:

“New York, October 27, 1888.
“ Mr. Matthew Clune, Proprietor 'Vcmderbilt Hotel:
“Dear Sir. — "We hereby agree to guaranty the expenses of the members of the Gaelic Athletic Association to the sum of $650 (six hundred and fifty dollars), or the amount due under that figure.
“ PATRICK EGAN, Lincoln, Neb.
“PATRICK FORD.”

At the time of the execution of this instrument Clune was the proprietor of a hotel in New York city at which the members of the Gaelic Athletic Association were boarding, and were in an-ears for such board in the sum of about $475; and they lived at the hotel and incurred expenses there, after the delivery of the guaranty, to the amount of $175. There being no disputed facts at the trial, a verdict was directed by the judge for the plaintiff for the full amount of the guaranty, and the defendant has appealed.

If the language employed can be allowed the full force of its unequivocal meaning and signification, there will be no difficulty in the disposition of the appeal, for the defendant plainly expressed their intention to guaranty to the plaintiff the payment to him of the expenses of the association at his hotel to the amount of $650, or the amount due under that sum. We must see, however, whether such intention so expressed can be carried into execution or whether it will be defeated by any technical rule of law.

In its commercial sense a guaranty is an undertaking by one person to be answerable for the debt or obligation of another, and it is essential to its validity that it shall be based upon a sufficient consideration. In cases like the present, where the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it originally, there must be some further consideration shown having an immediate respect to such liability.

It is now no longer necessary in this State to express a consideration in a writing containing a promise to answer for the liability of another (Laws of 1863, chap. 464), yet it is indispensable that a consideration shall exist to effectuate the promise. (Evansville Nat. Bank v. Kaufman, 93 N. Y., 279.) We think there was proof here of a sufficient consideration to uphold the guaranty in question. The terms of the instrument are unrestricted and the agreement is to guaranty the expenses of members of the association. The language applies equally to future and to past expenses; and $175 of expenses were incurred after the delivery of the promise ; and in the case of a special guaranty like this, the consideration necessary for its support may be furnished by the promise to the principal or to some third party according to the terms of the guaranty. (93 N. Y., 279, supra)

In this case, according to the very terms of the writing and the legitimate inference from, and the circumstances which cluster around, the transaction, the consideration for the support of the promise was to be furnished by the plaintiff to the members of the Athletic Association. Considerations at the common law are of two kinds, one where benefit accrues to him who makes the promise and the other where loss or disadvantage accrues to him to whom it is made, at the instance of the promisor, although without, benefit to the latter, and either one is sufficient to sustain a promise. (1 Pars, on Cont., 431.)

In this case loss came to the plaintiff from the guaranty, because upon that instrument he furnished $175 of the amount now claimed. We think such consideration imparts validity to the guaranty to the whole amount named in that instrument. The contract was entire and guaranteed the payment of all the expenses of the association, and only required the element of consideration to make it binding and effectual, and when that was furnished it imparted life and vitality to the whole instrument, and made it a living, legitimate obligation in the hands of the plaintiff to the extent of $650 — the limitation stipulated in the paper.

The judgment should be affirmed, with costs.

Peatt, J., concurred; BakNARD, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    FRANK S. BRADFORD, CHARLES P. BUCKLEY and NATHANIEL NILES, as Executors of and Trustees under the Last Will and Testament of SAMUEL I. HUNT, Deceased, Plaintiffs, v. WILLIAM MOGK, Defendant.

      Annuities charged, upon an estate — when the eha/rge does net prevent a sale, free therefrom, of the real estate.

    A testator by a will, which conveyed his estate in trust to his executors and trustees named therein, and conferred upon them power to convey his real estate in fee simple in their discretion, after giving out of the income of his estate certain legacies, further provided:

      “Nine. For each and every of the foregoing annuities the reckonahleyear shall begin at the date of my decease, and I make each and every of the same a first charge upon my estate into whose hands soever it may come.”

      Held,, that the word “estate,” as used in the will, referred to the title, and not to the corpus of the property, and that the lien of the annuities attached to the interest which the testator had in all of his property, and became a specific charge upon none.
    That the executors had power to convey the real estate free- from any lien or charge thereon.
    SubmissioN of a controversy, without action, to the court for the purpose of obtaining a construction of the provisions of the last will and testament of Samuel I. Hunt, deceased, relative to the authority of his executors to convey a good title to certain real estate which they had entered into a contract to sell and convey to the defendant.

      W. W. BuoMey, for the plaintiffs.

      Max Brill, for the defendant.
   Dykman, J.:

The defendant m tnis action entered into a written agreement with the plaintiffs, who are the executors of the last will and testament of Samuel I. Hunt, deceased, for the purchase of a lot of landin the city of Brooklyn of which their testator died seized and possessed.

Becoming distrustful and fearful respecting the power of the executors to convey the premises, the defendant refused to execute his agreement and take the conveyance ; and as the executors insisted upon his performance the controversy has been submitted to us without action, and so we have the case. Obviously, the solution of the question presented depends upon the construction to be given to the last will and testament of Samuel I. Hunt, deceased, which is long and complicated. Yet the scheme of the will and the design of the testator are not difficult of ascertainment.

By the terms of the will all the estate of the testator, both real and personal, with some exceptions unimportant here, is given to the executors and trustees named therein, or such of them as qualified, and to the survivor and survivors of them, in trust to control and manage the estate, collect the rents, issues and profits during the life of his daughter and grandson, and to dispose of the income in the manner directed by the will. The executors are invested with the most ample power to convey in fee simple at any time, at public or private sale, any and all of the real estate of the testator, in their discretion. Thus far no difficulty is encountered, but the uncertainty and the controversy arise over the ninth clause of the will. By the third, fourth, fifth, sixth, seventh and eighth clauses of the will the testator provided for the payment of annuities to several persons out of the income to be derived from his estate, and then he inserted this provision:

“Nine. Bor each and every of the foregoing annuities the reckonable year shall begin at the date of my decease, and I make each and every of the same a first charge upon my estate into whose hands soever it may come.”

This is the clause which creates the apprehension of danger, and which leads to the contention of the defendant that all the annuities are charged upon the estate, and that such charge creates an incumbrance which will rest upon the property “ into whose hands so'ever it may come,” and we must see if it does. Throughout his entire will the testator uses the term estate, and from the manner and connection in which the term is constantly employed it must be held to refer to his title, and not to the corpus of the property. Such is the usual rule of application of the term estate unless it be controlled or restricted by other portions of the instrument. “ An estate in lands, tenements and hereditaments signifies such interest as the tenant hath therein. * * * It is called in Latin, stafaos, it signifying the condition or circumstance in which the owner stands with regard to his property.” (2 Black. Com., 103.) Such- is also the natural and primary signification of the term.

This will, like all others, must receive a construction which will impart force and validity to all its provisions, if it be susceptible of such interpretation. If the contention of the defendant presents the true exposition of the testator’s intention, then he has defeated his important design to clothe his executors with an unrestricted and unlimited power of sale of all of his estate, because if the annuities rest upon all the property as a charge and incumbrance, then the executors can make no disposition of any portion of the estate without the consent of the annuitants, who may or may not be capable of giving such consent, or may withhold the same at their pleasure. Such a construction would not only embarrass the executors in the administration of the trust created by the will, but would substantially nullify many of its portions.

We cannot concur in such interpretation, especially as it is unnecessary and not required, even by the language of the will creating the charge. If we impart to the term estate, as employed in the ninth clause of the will, its natural import and meaning, then it attaches the lien of the annuities to the interest which the testator had in all of his property, and became a specific charge upon none. Such a construction renders the entire will harmonious and capable of execution in accordance with the scheme and scope of the will and the evident design of the testator.

The extensive powers bestowed upon the executors, in respect to the management of the estate and the disposition of the property, were placed in the hands of the executors for the purpose, in part, of providing and continuing the very annuities charged upon the estate, and if they cannot exercise the power of sale, that very object will be defeated. This is not like the case of lands devised to a beneficiary charged with the payment of a legacy or annuity, because here the property is placed in the hands of the executors in trust, to subserve a irarticular purpose plainly contemplated by the testator and provided for by the will.

The plaintiffs must have judgment to compel the defendant to perform and carry out his contract, with costs.

BaRNAkd, P. J., concurred.

Judgment for plaintiff that defendant carry out the contract.


text:
    CHARLES F. CARLSON, Respondent, v. THE PHŒNIX BRIDGE COMPANY, Appellant.

      Defective material — when the master, malting instruments from it, is not liable fon1 an inijury to a servant a/rising from the brealting of such instruments.

    In an action, brought to recover damages for personal injuries, it appeared that the defendant was a contractor, engaged in the construction of an elevated railroad on which the plaintiff was employed as a laborer to raise girders to their proper position in the structure, by fastening a rope to the girder and steadying the same while it was being elevated. The girders were about seventy feet long, five feet wide and weighed from four to ten tons. When one of these girders was to be raised a hook at the end of the rope or chain was inserted under the flange, and sufficient power was applied to turn the girder on to its edge so as to permit the insertion of blocks under it. The plaintiff was injured by reason of the hook giving way when the girder had been partially raised.
    The hook had been in use nearly three months before the accident, in the same service; was one inch and three-quarters in diameter, and was made by a blacksmith in the employ of the defendant, from a bar of iron which was purchased as of the best quality from a reputable house, from which bar a number of other hooks had been made, none of which had given way. The person who purchased the bar was the general superintendent of the work, and in the order therefor he specified the very best of refined iron without limitation of price, and it appeared that such iron was tested in its manufacture to make it homogeneous.
    It was claimed by the plaintiff that had proper tests been applied to the bar of iron from which the hook was made the defect which caused the break therein would have been disclosed, and that, although the iron, such as the bar from which the hook was made, was subjected to tests before it was placed on the market, yet it was the duty of the defendant to cause additional tests to be made before making the bar into hooks. The question whether a prudent employer was required to make such further tests or to do more than this company did was submitted to the jury.

      Held, that the bar of iron having been purchased in this manner, even if a test made by the defendant would have detected the latent defect in the iron, yet the institution of such an examination by it would have involved a degree of extraordinary vigilance and caution which it was not required to exercise.
    If materials, the best of their kind, are purchased, and articles are constructed from them by skillful workmen, and there is nothing to indicate any deficiency in them, a master is authorized to put them in the hands of his servants for use.
    Appeal by tbe defendant from a judgment, entered, after a trial at tbe Kings County Circuit before tbe court and a jury, in tbe office of tbe clerk of the county of Kings on tbe lOtb day of July, 1889, in favor of the plaintiff, by whom a verdict was recovered for $25,000 ; and also from an order, entered in the same office on the same day, denying the defendant’s motion to set aside the verdict and grant a new trial.

      Albert L. Bocurdman, for the appellant.

      J. Edward Swanstrom, for the respondent.
   Dykman, J.:

This is an action for the recovery of damages for personal injuries sustained by the plaintiff. The defendant was the contractor for the construction of the Kings County Elevated Railroad, and the plaintiff was one of a company of laborers employed to raise the girders to their position in that structure. It was his business to fasten a rope to the end of the girder, and steady the same while it was in the process of elevation, so as to prevent it from swinging or turning in its ascent. The girders were about seventy feet long and five feet wide and weighed from four to ten tons, and the plaintiff was injured by one of the largest and heaviest.

"When one of these girders was to be raised a hook at the end of a rope or chain was inserted under the flange, and then sufficient power was applied to turn it on its edge, and raise it sufficiently high to permit the insertion of blocks under it, upon which it was permitted to rest until other apparatus was applied preparatory to its elevation to its final resting place.

When the plaintiff sustained his injuries the hook had been inserted in the flange in the usual manner, but when the power was applied and the girder had been partially raised, the hook gave way, and the girder fell upon the plaintiff’s foot, crushed and lacerated it to such an extent that amputation became necessary and his leg was taken off about six inches below the knee.

Such are the facts, and the trial of the action resulted in a verdict in favor of the plaintiff for $25,000. The sole charge upon which the action is based and the recovery was obtained had relation to the hook which failed to sustain the girder and broke under its weight. The hook had been in use nearly three months in the same service, and was one inch and three-quarters in diameter. It was made by a blacksmith in the employ of the defendant, from a bar of iron wliick was purchased for the best quality from a reputable house, and a number of other hooks were made by the same man from the same bar, and none of the others gave way.

It was claimed, on the part of the plaintiff, that certain tests to which the bar of iron might have been subjected before its use would have disclosed the defect which caused the break; and although it appeared that the best refined iron, such as the bar from which this hook was made, is subjected to tests before it is placed on the market, yet the plaintiff claimed that it was the duty of the defendant to have caused additional tests to be made before making the bar into hooks; and the question whether a prudent employer was required to make such further tests, or do more than this company did, was left to the jury for determination.

The material facts were undisputed, and from them the jury was permitted to draw the inference of negligence; and we must now decide whether the uncontroverted facts in the case justified the imputation of negligence to the defendant; and if we find from the whole case that the inference of negligence could not properly be drawn, it will be our duty to reverse the judgment. (Burke v. Witherbee, 98 N. Y., 565.) It is the duty of a master to furnish adequate and suitable implements for the use of his servant, and a safe and proper place for the prosecution of his work, but such duty is not absolute, and it is discharged by the exercise of reasonable care and prudence in the manufacture or selection of such implements and appliances. (Probst v. Delemater, 100 N. Y., 272.) Guided by this rule, we must determine whether the servants of the’ defendant exercised reasonable care in the selection of the bar of iron from which this hook was made, and in making the hook.

The person who purchased the bar was the general superintendent of the work, and in the order he specified the very best of refined iron, without limitation of price; and the case shows that such iron is tested in its manufacture to make it homogeneous, and that such is known to be the practice at all well-established mills. The bar of iron having been purchased in such manner, it was delivered to the blacksmith of the company, who made a number of hooks from it, and among others the one that broke. There is no charge of unskillfulness against this, man, and he worked the iron and made the hooks in the usual manner. The iron worked well, and there was nothing to indicate any defect. It bent without showing any fracture, and there was nothing to manifest any weakness, iiaw or imperfection either in the iron or in the hook.

After the hook was made it was put in use and endured the heavy strains to which it was subjected for about three months and then broke from a latent defect. Do these facts manifest the absence of ordinary care? Let us assume, what is quite uncertain, that a minute examination and test would have detected the latent defect in the iron in this case, yet the institution of such an examination would evidence extraordinary vigilance and caution, and that is not ever exacted from a master in respect to the provision of implements for his servant; ordinary and reasonable care, such as a prudent man would take for the protection and safety of his own person, is the extent of the law’s requirement, and the exaction of more, would destroy the well-settled rule of liability, for there is no conceivable defect which may not be discovered by some possible test. The law is designed for application to the ordinary affairs of business and every day life. All men are not scientists, and all are justified in acting upon certain assumptions and appearances. If materials, the best of their kind, are purchased and articles are constructed from them by skillful workmen, and if there be nothing to indicate any deficiency, men in ordinary life use them, and place them in the hands of their servants for use.

Experience teaches us that such articles are not usually subjected to any tests before they are put in use. ¥e do not test a harness or a wagon which we order from a reputable dealer before we use the same, and there were no circumstances surrounding the manufacture of the hook in question which would induce a prudent man to depart from the usual course of procedure and adopt special and extraordinary precautions.

The scientific expert witness of the plaintiff onfy said the quality of iron should be known before hooks were made from it, and the servants of the defendant were in possession of such knowledge. They knew the quality of the iron and believed it to be the very best, and, with such knowledge and such honest belief, there is no rule of law which required them to resort to extraordinary tests • before they used the iron.

It is true the jury has drawn the inference of negligence against the defendant, but our conclusion, after a most thorough examination, is that such inference was unjustified and erroneous.

Such determination upon the main question disposes of this appeal, and renders unnecessary any examination of the other questions involved in the case.

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

Barnard, P. J., concurred.

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


text:
    JOHN W. MACY, as Trustee of the Trust Estate for the Benefit on ELEANOR HILDICK, Formerly Held by BENJAMIN L. GUION, Deceased, Respondent, v. DAVID T. WILLIAMS and ISAAC M. HUNT, as Executors of the Last Will and Testament of BENJAMIN L. GUION, Deceased, Appellants.

      Deposit of money in a savings bamh by the depositor as trustee for another — a valid, trust is created thereby.

    A deposit was made in a savings bank, the depositor receiving therefor a pass-book containing an account opened with him as trustee for Eleanor Hildick. After receiving the pass-book he left it with the ‘mother of Eleanor Hildick for some considerable time, but subsequently obtained the book and drew the money out of the bank and then died.

      Held, that his executor was chargeable to the beneficiary of the trust with the amount of the money so drawn by the testator.
    Appeal by the defendants, upon the questions of law and upon the facts, from a judgment, entered, upon the report of a referee, in favor of the plaintiff, in the office of the clerk of the county of Kings on the 4th day of November, 1889, for the sum of $3,385,30 ; also from an order granting to the plaintiff an allowance of fifty dollars, by way of additional costs, entered in the said clerk’s office on the 4th day of November, 1889.

      The complaint alleged that in the month of March, 1887, Benjamin L. Guión had in his possession a sum, upwards of $1,000, which was held, managed and controlled by him for Eleanor Hildiek; that, in the month of March, 1887, the said Guión died leaving said trust incomplete, and his duties, as such trustee, unfulfilled; that, by an order of the Supreme Court, made on the 28th day of December, 1888, the plaintiff was appointed a trustee in his place to execute the trust for the benefit of the said Eleanor Hildiek, and thereafter duly qualified as such trustee.

      Sidney S. Harris, for the appellant.

      Ojiarles H. Judson, for the respondents.
   Dykman, J.:

This action is instituted by the plaintiff, as trustee of Eleanor Hildiek, against the executors of Benjamin L. Guión, deceased.

The trial was before a referee, who found the following facts: Benjamin L. Guión in his lifetime opened accounts with two banks for savings, and made deposits in each, which he declared were in trust for Eleanor Hildiek, his grand-niece. When such accounts were opened and the deposits made, Guión received from each of the banks a pass-book containing a statement that the accounts were with him as trustee for Eleanor Hildiek. After such pass-books were received by Guión he left them for a considerable time with the mother of Eleanor, but'they were subsequently returned to him and he dr'ew out all the money' so deposited during his lifetime for his own benefit.

Guión died in March, 1887, and the defendants are the executors of his last will and testament. The plaintiff has been appointed the trustee of Eleanor Hildiek, and he commenced this action against the defendants, as such executors, for the recovery of the money so drawn from the savings banks, upon the theory that they belonged to Eleanor Hildiek when they were drawn out by Guión, and that he was her trustee in respect to such funds, and received the same in that capacity.

There is no material dispute respecting the facts, and the findings of the referee are well sustained by the testimony. Upon such facts the conclusion of law of the referee was that the transaction between the banks and Guión constituted a valid declaration of trust, and that the plaintiff was entitled to recover the amount drawn from the banks by Guión in his lifetime. Judgment was entered upon the report of the referee in favor of the plaintiff, from which the defendants'have appealed to this court.

The testimony in this action developed a case stronger in favor of the plaintiff than the case of Martin v. Funk (75 N. Y., 134), where it was held that the transaction whs a valid and sufficient declaration of trust, and passed the title to the deposits, the depositor constituting herself a trustee, and the retention of the pass-books, which were simply the vouchers for the property, must be deemed to have been as trustee, and was not inconsistent with the completeness of the gift.

In the case of Boone v. Citizens’ Savings Bank (84 N. Y., 86) the Court of Appeals, in the opinion, said the case of Martin v. Funk determined that the deposit made with the bank constituted the depositor a trustee for the person for whom the deposit was made, and transferred the title to the fund from the depositor as an individual to her as a trustee. It was also said of that case that it determined that, in an action by the beneficiary against the administrator of the trustee and the depository, the beneficiary was entitled to the delivery of the pass-book and to receive the money from the bank.

It was also said in that case that if the depositor in her lifetime had demanded the money from the bank and presented the pass book, no. claim by the beneficiary having been interposed, the bank would have been bound to pay; and it was further said in that case that, upon the death of the depositor, her rights as trustee devolved upon her administrators.

Those principles, so enunciated, seem to be decisive of this case upon the merits. When the depositor1, Guión, drew out the funds in question, he received the same as trustee of Eleanor Hildick, to whom they belonged, and held them in that capacity; and, upon his death, his rights and liabilities as such trustee devolved upon his executors, and as he was under legal obligations to account to her for such fund in his lifetime, so his executors are now liable to account to her after his death. Guión, in his lifetime, held the fund as trustee for the plaintiff, and the defendants hold it in the same capacity. We conclude, therefore, that the trust and the trust relations were fully established and the plaintiff is entitled to recover.

In respect to the capacity of the trustee to sue we have little trouble. He is the trustee of the beneficiary with her assent, and the action is prosecuted for her benefit, with her knowledge and consent, and the defendants stand in no danger of a second recovery.

There may have been no necessity for the appointment of a new trustee, inasmuch as the money belonged to Eleanor Hildick; and if it should now be deemed necessary, the whole proceedings can be amended on this appeal by striking out the name of the trustee and making the beneficiary the sole plaintiff.

We conclude, however, that the allowance of costs to the plaintiff was erroneous. The defendants were not allowed sufficient time to consider the claim before the action was commenced, and cannot be said to have unreasonably resisted the claim or the offer to z’efer.

The judgment should be modified by striking out the costs and allowazice, and, as so znodified, affirmed, without costs of this appeal.

Barnard, P. J., concurred.

Judgment affirmed, with modification striking out order granting allowance, and judgznent, as modified, affirmed, without costs.


author: Pratt, J.:

text:
    ELEANOR J. BARTLETT, Respondent, v. THE VILLAGE OF TARRYTOWN, Appellant.

      Damages for a cha/nge of grade — a previous grade legally established need not be shown.

    The provisions of chapter 118 of the Laws of 1888 do not require a property owner, in order to authorize a recovery of damages arising from a change of grade in the street in front of his premises, to show that a grade had been, previously to such change, established by the municipal authorities of the village of Tarrytown.
    Appeal by the defendant, the Village of Tarrytown, from the award of commissioners made in the above-entitled mattez-, and from an order,, dated the 20th day of July, 1889, made at a Special Term held in Westchester cozzzzty on that day, affirming the said award.

      The proceeding was instituted under chapter 113 of the Laws of 1883 by the petition of Eleanor J. Bartlett, alleging that she was the owner of certain premises in the village of Tarrytown, on which there was a dwelling-house and outbuildings; that the village of Tarrytown was a municipal corporation, and that John street, upon which the plaintiff’s premises were situated, was a public street in said village; that since about the 1st day of April, 1888, the grade of John street had been greatly changed and altered so as to greatly damage the property of the plaintiff, and interfere with and hinder free access to some of the buildings thereon, and that such change of grade had been made by and under the direction of the village of Tarrytown and its officers.

      J. 8. Millard, for the appellant.

      L. T. Yale, for the respondent.
   Pratt, J.:

This is an appeal from an award for damages allowed the plaintiff by reason of a change of grade in a street fronting upon the plaintiff’s lands.

No questions of irregularity in the appointment or in the proceedings of the commissioners are raised.

The principal question is, whether or not. the damages are excessive. With this subject, courts cannot interfere unless the commissioners infringe some rule of law in the course of their proceedings, or fix the damages at an amount so grossly excessive as to indicate passion, prejudice or fraud.

The counsel for the defendant very ingeniously contends that this case does not fall within the statute allowing damages for a change of grade, for the reason that a grade had never been officially fixed for John street, and hence could not be changed. We think, however, that this argument is too fine for practical use.

There are many streets in all cities where the grade has never been established by resolution, but has.become established by long user. The natural grade may suit well enough for years, but finally the authorities may see fit to change it. Now, can it well be said that the statute was not intended to apply to such cases ? The statute is one giving a remedy, and it ought to be liberally construed. (People ex rel. Wood v. Lacombe, 99 N. Y., 49.)

It was the intention, of the legislature to afford damages to persons who were injured by changing the grade in front of their premises, and the law does not restrict the damages to streets, the grade of which had been previously established by resolution, and no good reason seems apparent why there should be any such restriction. A party might be damaged just as seriously, so that the reason of the passage of such a law might apply as strongly as in the case of altering a grade in a street which had been previously fixed by resolution of the authorities.

We also think this question should have been raised when the motion was made for the appointment of commissioners, and that the decision of that motion concludes the defendant upon this proceeding. Neither do we think that a giving of the deed by the petitioner cuts off her remedy for damages under the statute. The deed only carried the right to use the land in the street, and the changing the grade was an entirely distinct matter.

The damages are for injury to petitioner’s adjoining land, and arose some time after the deed was given.

Barnard, P. J., concurred, Dykman, J., not sitting.

Award of commissioners affirmed, with costs.


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    J. FREDERIC ANDREWS, Appellant, v. THE DAY BUTTON COMPANY, Respondent.

      Landlord and tancmt — substitution by the tenant of a new engine for an old one— conditional assent thereto by the landlord — the condition not binding on tile tenant.

    A tenant applied to liis landlord to have a neV engine put in by the latter upon the demised premises in place of an old one, which was worn out. The landlord offered to consent to the lessee’s making the change upon the condition that the engine should belong to him. Without assenting to this the lessee put-in anew engine on the foundation of the old one which he removed.

      Held, that although this was done after the tenant received a letter containing this conditional assent on the part of his landlord, yet as there was evidence that the tenant never accepted the condition, the title to the new engine, placed upon the old foundation by him, did not pass to the landlord.
    Appeal by the plaintiff from a judgment dismissing the complaint, rendered at a Special Term held in the county of Kings, and entered in the office of the clerk of the county of Queens on the 21st day of May, 1889.
    The action was brought to restrain the defendant from removing an engine placed by him in certain premises occupied by him under a lease from the plaintiff in the action.

      Michael H. Gardozo, for the appellant.

      Gibson Putzel, for the respondent.
   Barnard, P. J.:

The evidence sustains the finding that the new engine was put into the place of the old one without any agreement that the new one should belong to the landlord. The landlord was applied to to put in the new engine himself and refused. Ho was requested to contribute to the expense and he refused that. He offered to consent to the lessee’s making the change, upon the condition that the engine should belong to him. There was no assent to this, and the lesseee put in/the engine on the old foundation and removed the old engine. Although the tenant put in the new engine after he received a letter containing this condition, the evidence is plain and abundant that the tenant never accepted this condition, but exercised such right in respect to the change as he had as a tenant, hiring manufacturing premises for use as such. A tenant has the right to. erect a new building on the rest of the demised premises, and to remove the old one therefrom, so as to permit this improvement without waste. (Winship v. Pitts, 3 Paige Ch., 259.) A building erected for the purpose of trade or manufacture maybe removed by the tenant. (Ombony v. Jones, 19 N. Y., 234.) The tenant may put in an engine and remove it at the end of the term. (Kelsey v. Durkee, 33 Barb., 410.) The tenant may remove a chimney and the machinery put in for the purpose of trade. (2 R. S. [2d ed.], 24.)

The title to the new engine was never, therefore, in the landlord. There is no reason to distinguish this case from those cited, because the building or engine was put in a vacant place and was not substituted for another similar structure or implement of trade. Admit that the tenant had the right to put up a new foundation, and place an engine upon and connect it with the mill, he may substitute a new article for a worn-out one, and he may remove a dangerous engine and put in a safe one in its place, always subject to the condition that the same could be put in and taken out without injury to the realty. The proof is clear in this case that the engine could be removed without injury to the building, and that fact is so found. There was no intention to make the new engine real estate, and that fact is found and the evidence sustains the finding. The clause in the lease that the tenant would make no alterations in the premises is not material to the question. The tenant’s rights depended in all cases upon the fact that the article annexed should not materially injure or affect the real estate, and that the removal can be made without any injury therefrom.

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

Dykman, J., concurred.

Judgment affirmed, with costs.


author: Barnard, P. J.: Pratt, J.:

text:
       OTTO SCHMIDT, Appellant, v. STEINWAY & HUNTER’S POINT RAILROAD COMPANY, Respondent.

      Negligence — driver of a sti'eet railroad car — injury done to a workman in an excavation adjoining the tracks.

    The driver of a street railroad car, approached an excavation in which a sewer was being constructed along side of the car tracks, upon the ground along side of which, sewer pipes were placed upright on the edge of the sewer; he stopped his team, but was told to go on by a man stationed at the excavation, who had been there for the four preceding days controlling the passage of the cars. This man was not one of the contractor’s men, nor did it affirmatively appear that he was employed by the company;
    The car was driven on against the pipe which was standing in full sight of the driver, and the pipe was thrown into the excavation, injuring one of the workmen employed therein.

      Held, that it was the duty of the company to exercise extreme vigilance in the management of its cars, and that this obligation was increased by reason of the existence of the excavation; that it should have placed a man there to prevent injury to others if the place was dangerous.
    That proof that the man who directed the driver to go on apparently acted for the company was sufficient to justify the submission of that question to the jury, although no contract of employment was shown to exist between him and the company.

      Appeal by the plaintiff from a judgment dismissing tlie plaintiff’s complaint, entered in the office of the clerk of the county of Kings on the 12th day of November, 1889.
    The action was brought to recover damages occasioned to the plaintiff by the. alleged negligence of the defendant, consisting in the alleged reckless driving of a horse car against a pipe in full sight of the driver, which fell into an excavation and seriously injured the plaintiff.

      M. L. Towns, for the appellant.

      Foster da Foster, for the respondent.

       Decided December 20, 1889.

   Barnard, P. J.:

The case, as proven, was one for the jury. The complaint avers that the defendant’s driver drove one of its cars carelessly against a pipe, which fell into an excavation in which the plaintiff was working.

The pipe fell on him and seriously injured him. The evidence shows that a sewer was being excavated along side of the defendant’s track for about 200 feet, and then turned across the track of the railroad company. On the 1st of June, 1888, at evening, the sewer workmen were guarding the track for the night. This was done by placing sewer pipes on end and placing plank on the upper end of the pipes. This guard extended for the length of three or four boards, for the case shows there were that number of pipes upright on the edge of the sewer.

The defendant’s driver stopped his team before he came to the first of the’pipes. The man was told to go on by a man stationed at the excavation, who had been there for the four preceding days controlling the passage of the defendant’s cars. It was proven that he was not one of the contractor’s men who was excavating the sewer. It was proven that he had the right to signal the cars to move. The driver’s evidence is rather baffling, but he states this fact distinctly. The company owed extreme vigilance in the management of its cars, and this duty was increased by the excavation. It should have placed a man there if dangerous. A man was placed there by some one and the conductor was informed of his right to control tlie cars in some way. The proof that the man apparently acted for the defendant, or was in its employment, as evidenced by his acts, was proper. It was too much to require the plaintiff to produce a witness to the contract of employment. A prima faoie case was made out for the jury, when it was proven that he acted for the railroad company. The defendant is then called upon for its defense. If the jury could find that the man was employed by the defendant, the company is liable for their servant who gave the signal for the car to move, when it was not safe to do so. The car struck the pipe and threw it into the trench and hurt the plaintiff.

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

Dykman and Pratt, JJ., concurred.

Pratt, J.:

Defendant’s counsel are quite correct in their contention that the burden of proving negligence rests upon the plaintiff, but we are not able to agree with them that negligence was not shown. The testimony shows that the pipe was standing in full sight of the driver and was, in fact, seen by him before he drove against it. He was aware of the work in progress, and it was his duty to guard against injuring the employees. Of that he was conscious and stopped his car, but his caution did not go so far as to be effectual. Had he looked into the sewer, which would not have required any appreciable time or trouble, he would have seen the plaintiff, and, doubtless, would have given him warning to remove.

Clearly he should not have driven against the pipe unless he knew no one was below it to be injured by its. fall. His negligence in so doing is too clear to require argument. The excuse given for his going on, viz., that some one beckoned to him, does not help defendant. That may serve to show that another person was also negligent, but where the negligence of two persons concur to cause an injury, neither person is excused; both are liable. (Colegrove v. N. Y. and N. H. and N. Y. and H. R. R. Companies, 20 N. Y., 492.) The driver could not excuse himself for not using due care .on the ground that he relied upon some other person to do it. Defendant’s counsel suggest that the person who beckoned to the driver was probably an employee of the contractor who was building tbe sewer. If that were so, it would have no legal importance in this action. The negligence of a co-employee might prevent ■plaintiff' from recovering against the common employer, but it is well settled it will be no defense in an action against another person. (Perry v. Lansing, 17 Hun, 34; Young v. New York Central R. R., 30 Barb., 329.) But we think the evidence tends to show, and, if not' contradicted or explained, established that the person who gave the word to the driver to proceed was an employee ■of defendant for whose negligence it is, of course, responsible. It. seems he was not of the sewer party; and the fact that the drivers obeyed his orders is evidence that he was in authority over them. If he was not, it is entirely clear they should not have acted upon his •orders.

We think, as argued by plaintiff’s counsel that defendant could mot relieve itself of the duty to comduct its business safely; and ■that if it relied upon the contractor to notify his men when cars .approached, it did not thereby relieve itself from liability.

The judgment should be reversed and new trial ordered, costs to •abide event.

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


text:
    ELIZABETH K. BROADHEAD, Appellant, v. ELIJAH SMITH and FRED BOOTH, Respondents.

      *Chattel mortgage — general words of description of chattels, limited so as to include only those specified in the schedule attached.

    A chattel mortgage described certain property as “all machinery, tools, implements, appliances and personal property, and all other goods and chattels mentioned in the schedule hereto annexed, and now in the buildings and on the . premises situated in the town of Cornwall, county and State aforesaid.” The schedule, which contained a minute list of articles, stated that it was an “inventory of personal property mentioned and referred to in the annexed mortgage.”

      Held, that the general words of the mortgage were to be limited and restricted to the articles mentioned in the schedule, and that the mortgage did not cover other articles which were in the buildings and premises referred to in the mortgage.

      Appeal by the plaintiff from a judgment of the Orange County Court, rendered upon an appeal by the defendants from a judgment of Isaac Denniston, a justice of the peace of the town of Cornwall, in favor of the plaintiff, for the sum of $141, which said judgment of the County Court was entered in the Orange county clerk’s office on the 4th day of February, 1889, and reversed the-judgment of the justice of the peace.
    The action was .commenced for the conversion of personal property, consisting of two pumps in a woolen factory, which were claimed by the defendants under a chattel mortgage.

      Round <& Brewster, for the appellant.

      Howard Thornton, for the respondents.
   Barnard, P. J.:

A chattel mortgage in the body of the instrument contained this clause as describing the pro}3erty mortgaged by it: “All machinery, tools, implements, appliances and personal property, and all other-goods and chattels mentioned in the schedules hereto annexed, and now in the buildings and on the premises situated in the town of Cornwall, county and State aforesaid.” The premises were a woolen mill and appurtenances.

There was a schedule attached to the mortgage and this contained a very minute list of articles, some known as machinery and fixtures- and others mere detached articles of personal- property. The schedule stated that it is an “ inventory of personal property mentioned and referred to in the annexed mortgage.” The inventory or schedule is signed by the mortgagor. The mortgage and schedule must be read together. (Edgell v. Hart, 9 N. Y., 213.) The general words of the mortgage are to be limited to the articles named in the schedule. The words of the mortgage itself name-these: “ all the machinery, tools, implements, appliances and personal property ” are as well subject to the schedule annexed as the words all other goods and chattels mentioned there. The parties so understood the mortgage, for the machinery and appliances, tools and personal articles are all particularly stated therein, preceded by a statement that it is the property referred to in the mortgage.

The mortgage did not, therefore, cover property not mentioned in the schedule, and the judgment of the justice was right and •should, therefore, be affirmed and the judgment of the County ■Court reversed, with costs.

Dyiqian, J., concurred.

Judgment of County Court reversed and that of justice affirmed, with costs.


author: BarNArd, P. J.:

text:
    GEORGE W. BROWN, Appellant, v. SAMUEL COLEMAN, Respondent.

      -Landlord and tenant — an assignee of the rent is not liable for a breach of the lease in regard to repairs.

    In an action by the assignee of a claim for rent, a counter-claim for a breach of the contract under which the premises were leased was set up by the defendant. The court charged that the assignee stood in the place of his assignor for all damages sustained by the tenant on account of a breach of the landlord’s (the assignor’s) agreement.

      Held, that this was error; that when the jury allowed a counter-claim to the extent of the plaintiff’s demand, Jhe court should have told the jury to find generally for the defendant.

      Patton, Assignee, v. Boyal Baking Powder Oo. (114 N. Y., 1) distinguished,
    Appeal by the plaintiff from a judgment of the County Court •of Kings county, entered in tbe office of the clerk of the county of Kings on the ljth day of May, 1889, upon the verdict of a jury in Lavor of the defendant for $142.16.
    The action was brought by the plaintiff, as assignee of the landlord, •one J. Culbert Palmer, to recover rent due under a lease of certain premises, occupied by the defendant. The complaint demanded judgment for the sum of thirty-five dollars, with interest. The ■answer, by way of counter-claim, alleged that J. Culbert Palmer, the owner of the premises, agreed to make all repairs thereon, and keep the said premises in good repair and tenantable; that, at divers times during the term of the lease, Palmer violated his said agreement, neglected to repair the roof of the building, which became leaky, so that water from said roof poured down onto the floors and through the ceilings of the house, injuring the property of the •defendant to his damage $232.85 ; that the plaintiff in the action was personally cognizant of said damages, and of defendant’s claim therefor before the commencement of this action, and had had notice thereof before the time of the alleged assignment set forth in the complaint.

      J. CvXbert Palmer, for the appellant.

      Jamies J. Rogers, for the respondent.
   BarNArd, P. J.:

By section 502 of the Code of Civil Procedure it is provided, that when an assignee of a claim sues upon it, a demand existing at the time of the-assignment may be allowed as a counter-claim to the amount of the plaintiff’s demand. The case shows that the plaintiff is the assignee of a claim for rent. The default sets up a counterclaim for a breach of the contract under which the premises were leased. The court charged that the assignee stood in the place of his assignor for all damages sustained by the tenant on account of a breach of the landlord’s (assignor’s) agreement. This was erroneous. "When the jury allowed a counter-claim to the extent of the plaintiff’s, demand the court should have told the jury to find for the defendant. The fact that the plaintiff’s attorney was the assignee of the claim has no relevancy in this respect. In the case of Patton, Assignee v. Royal Baking Powder Company (114 N. Y., 1) the claim of the plaintiff, although sued as assignee, “was his personally,, and not as assignee.” He assumed to perform the contract assigned to him which made him liable for damages for a breach of the contract.

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

DtKMAN, J., concurred.

Judgment of County Court reversed and new trial granted, costs-to abide event.


author: Hardin, P. J.:

text:
    JOHN D. BARROW, REBECCA H. BARROW, ELIZABETH BARROW and GEORGE BARROW, Plaintiffs, v. HENRY BARROW and EDWARD WOOD, Executors of the Last Will and Testament of EDMUND H. PRIOR, Deceased, Defendants.

      Will — when the income of a trust fund created thereby is payable from the time of the death of the testatm'.

    A testator, by bis will, provided as follows: “I do give and bequeath to my executors hereinafter named, and the survivor of them, the sum of $60,000, in trust, that they invest the same in good securities, and that until the death of the survivor of my nephew, John D. Barrow, and niece, Mary L. Barrow, they apply the net interest and income therefrom to the use of my nephews and nieces, children of my sister, Elizabeth M. Barrow, as follows, namely: To John D. Barrow, Rebecca H. Barrow, Elizabeth Barrow, George Barrow and Mary L. Barrow, each one equal share annually, and every year, in half-yearly payments.”
    The testator’s estate was inventoried at the sum of $461,575, the assets of which consisted of bank stocks, cotton-mill stocks, gas-light stocks, etc., interest-bearing securities, none of which were such as the law permits trustees to invest in.

      Held, that the income of the $60,000 was payable to the beneficiaries named in the will from the date of the death of the testator.
    SUBMISSION of a controversy, without action, under section 1279 of the Code of Civil Procedure. On the l'3th day of December, 1819, Edmund H. Prior made his last will and testament wherein he. appointed Henry Barrow and Edward Wood his executors. He died in Westchester county October 16, 1888, and his will was probated on January 18,1889, andjhe executors qualified and entered upon the discharge of their duties as such executors. The plaintiffs claimed that under the will of Edmund H. Prior, deceased, the net interest or income on the amount given to the executors in trust, and directed to be invested by them for their benefit, commenced from the day of the death of the testator that is, October 16,1888, and that they were, therefore, entitled to income for the first year subsequent to said date. To the contrary thereof, the executors claimed that the income or interest did not commence until one year subsequent to said death of said testator, and that the plaintiffs were not entitled to any interest for the first year after the death of the testator.
    The plaintiffs claimed under the following clause of the will: C! I do give and bequeath to my executors hereinafter named, an d the survivor of them the sum of sixty thousand dollars, in trust, that they invest the same in good securities, and that until the death of the survivor of my nephew John D. Barrow and niece Mary L. Barrow, they apply the net interest and income therefrom to the use of my nephews and nieces, children of my sister Elizabeth M. Barrow, as follows, viz.: To John D. Barrow, Rebecca IT. Barrow, Elizabeth Barrow, George Barrow and Mary L. Barrow, each one equal share annually, and every year in half-yearly payments, and should any of my said nephews and nieces die before the death of said survivor, leaving lawful issue him or her surviving, then the share of the income to which the said deceased nephew or niece would be entitled, if living, shall be paid to such issue, if one, solely; if more than one jointly and equally; but should there be no such lawful issue surviving, then the income of such share shall be divided among the survivors of my said nephews and nieces and their issue, so that each one of my said nephews and nieces shall take one share, and the issue of any deceased one shall take the share of the parent, and upon 'the death of the survivor of my said nephew and niece, then the said sum of sixty thousand dollars is to fall into my residuary estate and be disposed of as hereinafter mentioned.”
    In the case submitted it appeared “ that the estate left by the said Edmund H. Prior was inventoried at the sum of $461,575, that the assets owned by said testator at the time of his decease, and -which passed to his executors, and which they took under their control upon the testator’s death, consisted of bank stocks, cotton mill stocks, gas-light company stocks, railroad bonds and interest-bearing notes; that substantially the whole of said estate was invested at the death of the testator in securities hearing interest, and together averaging five per cent per annum; and that the said estate in the executors’ hands now amounts to about $498,000. That none of ■said estate was at testator’s death invested in such securities as the law permits trustees to invest in, and that the amounts bequeathed to said executors in trust as aforesaid has not been set apart and was at no time previous to the 16th day of October, 1889, invested by the said executors. * * * That the said testator at the time of his decease was substantially free from debt.”
    The submission further stated : “ The question submitted to the ■court upon this case is as follows: 1. Tinder the will of Edmund H. Prior, deceased, and the above statement of facts, are said -John D. Barrow, Rebecca H. Barrow, Elizabeth Barrow and George Barrow entitled to the income on said trust legacy from the time of the death of said Edmund II. Prior? If this question is answered in the affirmative, then judgment is to be rendered against the said executors, and to be paid out of said estate for the amount claimed, $3,429. If answered in the'negative, judgment is to be rendered in favor of the executors. That this submission be filed in the clerk’s office of Onondaga county.”

      George Barrow, for the plaintiffs.

      Wilson M. Powell, for the defendants.
   Hardin, P. J.:

The language of the will before us is quite unlike that found in the will that was the subject of construction in Bradner v. Faulkner (12 N. Y., 472). In that case “the sum of $16,000 to be paid to her by my executors out of my personal estate as soon as the same can be collected after my decease ” was the language under which Mrs. Faulkner sought to recover interest from the decease of the testator. It was said by the court that the language used, as well as the other circumstances appearing in the case, did not indicate an intent on the part of the testator that the legatee should receive interest from the time of the death of the testator, and that to allow such interest it must appear to be the intent of the testator, either by express direction or by an implication from the provisions of the instrument, which shall be equivalent to such direction.” In the will before us the provision is for a gift of $60,000 to the executors in trust, and they are directed to “ apply the net interest and income therefrom to the use of ” the nephews and nieces, each one equal share annually, and every year in half-yearly payments.” It may he observed that the gift or bequest took effect immediately upon the death of the testator, and if we give a liberal construction to the words every year in half-yearly payments,” we may assume that they are sufficiently broad to include the period immediately following the death of the testator. If we assume that the bequest took effect upon the death of the testator, then the words apply the net interest and income therefrom to the use of my nephews and nieces ” would receive a reasonable construction if they were considered sufficient to carry to the beneficiaries any accumulation of interest or income upon that part of the estate of the testator set apart in trust for them.

Some significance may be given to the circumstance that the • assets of the estate out of which the trust funds w.ere to come, or in which they were invested at the time of the death of the testator, bore interest, and were yielding an income at the time of the death of the testator according to the language of the submission before us. It appears in the submission of the case that the testator left only $4,000 of real estate, and “ that the said testator at the time of his decease was substantially free from debt,” and it also appears that. “ substantially the whole of said estate was invested at the death of the testator in securities bearing interest.” These circumstances, are somewhat helpful to the position taken by the plaintiffs.

In Cooke v. Meeker (42 Barb., 533), it was held, viz.: “ Where a, sum of money is bequeathed to executors, to be put out at interest, and to pay over the income, the person for whom the provision is made is entitled to interest on the same from the death of the testator, provided a sufficient amount remains, after deducting debts, and other legacies.” In the case before us it is apparent that there were sufficient assets, after paying the debts and other legacies, to. meet the bequest mentioned in tbe clause of tbe will under consideration. In the opinion in tbat court delivered by Clerice, J.,. be said: “ Tbe weight of authority is in favor of allowing tbe payment of annuities or incomes to commence at tbe testator’s death.”' He adds a citation and considers numerous authorities bearing upon tbe subject, and says, viz.: “ In the case of Hilyard’s Estate (5 Watts & Serg., 30), tbe bequest was to tbe executors in trust, to put at. interest a certain amount, and apply tbe interest and income thereof, from time to time, unto tbe testator’s sister. The court held that she was entitled to tbe interest during tbe first year from tbe death of tbe testator.” This case passed to the Court of Appeals, and tbe decision thereof is reported in 36 New York, 15, andthe decision of the Supreme Court was affirmed. In tbe course- of tbe opinion delivered in tbe Court of Appeals, Bockes, J., referring to tbe case of Hilyard’s Estate (5 Watts & Serg., 30), says : “ Tbe last case cited is much like tbe one in band. The testator gave to bis executors a. sum in trust to be put at interest, and required them to apply tbe interest and income to tbe use of bis sister during her natural life.. It was held tbat she was entitled to interest on tbe sum from tbe death of the testator. So in Gibson v. Bott (7 Vesey, 96) tbe testator placed the residue of bis property in trust in tbe bands of bis. executors, and directed them to keep it invested, and to pay tbe interest and dividends to bis two daughters and their assigns for life. It was held tbat they were entitled to tbe interest thereon from the testator’s decease.” Surrogate Calvin followed the decisions in 'the case just referred to in disposing of a similar question in tbe Matter of the Estate of Edward Lynch (52 How., 367); and in delivering bis opinion in tbat case he made quite an extensive-examination of the authorities bearing upon tbe question.

In deciding Pierce v. Chamberlain (41 How., 501), Daniels, J., followed tbe doctrine of Cooke v. Meeker (supra); and the same-learned judge, in delivering tbe opinion of this court in tbe first, department, in Powers v. Powers (49 Hun, 219; 16 N. Y. St. Rep., 770) followed Cooke v. Meeker; and in alluding ,to tbe rule laid down said: “ No authority lias been found, neither is there any probability tbat .any can be, in any manner modifying or changing this rule.”

In delivering tbe opinion in Rodman v. Fincke (68 N. Y., 246), Rapallo, J., says, viz. : “ In some eases Where the amount of tlie fund cannot be ascertained till a period after the testator’s death, but the bequest is of the interest on such fund during the life of the legatee, it has been held that to carry out tlie intention of the testator the legatee for life must be allowed interest on the fund as afterwards ascertained, to be computed from the death of the testator. (Williamson v. Williamson, 6 Paige, 298; Gibson v. Bott, 7 Vesey, 89.) This rule is especially equitable when the fund has all the time been yielding income in the hands of the executors. (See Hilyard’s Estate, 5 Watts & Serg., 30.) Por these reasons we think that the grandchildren are entitled to interest on the deficiency demonstrated by the sale, from the time ■of the death of the testator.”

Surrogate Tuciceb, in the Matter of Fish’s Estate (19 Abb. Pr., 212), said: “Annuities or incomes, and interest upon sums directed to be invested upon trust to pay over interest or income, commence to run from the death of the testator.” Por that doctrine he cited the opinion of the Supreme Court in Cooke v. Meeker (42 Barb., 533). The doctrine of the cases to which we have referred was ¡stated approvingly by Surrogate Bergen in Bullard v. Benson (1 Dem., 494).

Surrogate Rollins, in Nahmens v. Copely (2 Dem., 257), indulges in some doubting criticism of the doctrine of Cooke v. Meeker (supra), but in closing his opinion lie applies the principle of that case to the question before him, as he says : “Nevertheless, in view of the peculiar language of this testator’s will, I have decided to allow interest from his death upon the legacy under consideration. He expressly declares that the provision for his grandchild shall be for her ‘support and education.’ This feature seems to me to be one of controlling importance, and to justify the claim urged by the special guardian in her behalf.” So far as the case is •entitled to respect as an authority, it supports the doctrine of the •cases already cited. The same remark may be made of the opinion in Clark v. Butler (4 Dem., 379).

After carefully considering the language of the will and the cir•cumstances relating to the testator’s estate, and the authorities to which we have referred, we are of the opinion that the plaintiffs ■are entitled to receive the net interest and income upon $60,000, less the State tax from the day of the death of the testator, and that, according to the terms of the submission, judgment should be; rendered against the said executors, and to be paid out of said estate for the amount claimed, $3,429.

.Martin and Merwin, JJ., concurred.

Judgment directed in favor of the plaintiffs for $3,429, against, the executors, payable out of the estate, with costs.