author: By the Court.—Sedgwick, Ch. J. Truax, J.

text:
    JOHANNA DONOHUE, Respondent, v. SUSAN R KENDALL, et al., Appellants.

      Decided June 16, 1884.

      Landlord and tenant—tenement houses—liability of executors in control of.— Pleading.—Laws 1883, chap. 410, § 653.
    It is the duty of the landlord of a tenement house to keep in good repair the stairways, etc., intended for common use, and he is liable to his tenants, as well as to strangers lawfully on the premises, for damages caused by neglect of this obligation.
    Executors, who, as such, are in possession and control of such premises, are under a like obligation, which maybe enforced against, them personally, even though under the will they have no right to make repairs at the expense of the estate.
    The provisions of Laws 1883, chap. 410, § 653, establish the personal liability of executors in possession and control of tenement houses, for damages caused by defective condition of stairways. (Truax, J.)
    Where the title of the action contains after the names of the defendants the words “executors, etc.,” and the complaint states the former ownership of the premises by the testator, the appointment of defendants as executors, t>hat, as such, they went into possession and control; that “the defendants” were guilty of negligence, etc., and finally demands judgment against “ the defendants,”—if the proof be sufficient, judgment is properly entered against defendants individually.
    Before Sedgwick, Ch. J., and Tbttax, J.
    Appeal by defendants from judgment entered on verdict of jury, and from order denying defendants’ motion for a new trial made upon the minutes.
    This action was brought to recover damages sustained by plaintiff in falling down a stairway leading to the cellar of a certain tenement house, in the city of New York, in which she lived.
    The title of the action in the summons and complaint was “ Johanna Donohue v. Susan R. Kendall, Elizabeth R. Upham, Caroline R. Kendall, and Daniel R. Kendall, executors of the last will and testament of Isaac C. Kendall, deceased.” The complaint alleged that at the time of his death the said Isaac C. Kendall was the owner and had possession of the premises; that he died, leaving a last will and testament wherein he appointed the defendants executors thereof; that on April 28, 1877, the defendants were appointed executors of said last will and testament and are acting as such ; that thereupon the defendants, as such executors, undertook the management and control of said premises, and still have possession and control of the same.
    It then alleged that “ the defendants ” did on May 20, 1882, negligently, carelessly, wrongfully and unlawfully leave said stairway and suffered the same to remain in such dangerous, unguaz’ded and rotten condition, that by means whez’eof the plaintiff fell and was injured. Judgment was demanded against 16 the said defendants.”
    ,. The answer denied only that the premises were in an unsafe condition, or improperly or insecurely constructed, or that defendants left the stairway in a dangerous and unsafe condition as alleged in the complaint.
    The action resulted in a verdict in favor of the plaintiff for $1,000, on which judgment was entered against the defendants individually for $1,107.97, damages and costs. From this judgment the defendants appeal.

      W. McDermott, for appellants.
    The judgment should not have been against defendants individually. It is not necessary to set out in the title of an action that defendants az’e sued in a representative capacity. The complaint may set out the representative character of the defendants to show that the action is brought to z’ecover a demand of the estate (Yates v. Hoffman, 5 Hun, 113 ; Sullivan v. Husson, 50 How. 475).
    The allegation in the complaint that the executors had possession and control of the premises does not show any authority or duty to make repairs. There was no proof on the trial of the will or its provisions.
    Where an executor is empowered merely to receive the rent and has no estate in the land he is not personally responsible for damages by reason of the defective construction or condition of the building (Rollins v. Mount, 4 Rob. 553).
    Executors having a naked power to sell real estate and not authorized to make repairs cannot charge the estate with the cost of repairs (Hopper v. Adee, 3 Duer, 235).

      Peter Mitchell, for respondent.
   By the Court.—Sedgwick, Ch. J.

The appellants object that the verdict and judgment were entered against the defendants personally, erroneously, inasmuch, as is claimed, the complaint made no charge against them personally but only as executors, etc., of Isaac C. Kendall. The title of the action contains after their names the word “ executors, etc.” This is no more than identifying them by description, and does not indicate that they are sued as executors. The complaint states that as executors they undertook the management and control of the premises where the accident happened, but it states that they, personally, without attending to their executorship, negligently did leave the stairway in a ruined condition, etc. Their duties as executors related to the persons interested in the estate, yet even to them there might be a personal liability. As to the plaintiff, whatever was the title or right of the defendants, they had an obligation to her, because as natural persons they were in control of the premises and managed them, and were liable for any negligence on their part.

The answer, by not denying, admitted that the defendants had possession and control of the premises. It is to be observed that this amounts to an admission of joint possession and control, which is the foundation of a joint obligation to use ordinary care as to the premises.

The plaintiff was a tenant of some rooms in the upper part of the house, with the right to use a part of the cellar. Access to this cellar was to be had by a stairway leading down to the cellar. The plaintiff was going down the stairs, when she fell and was damaged, because one of the steps was gone. I think the circumstances that were not disputed, justified an inference that the plaintiff was either the tenant of the defendants, or of their testator, and if this were not correct, the defendants should prove the exceptional state of facts. In any condition of the facts as to this, it seems to me, that the defendants owed a duty to the plaintiff, who was rightfully using the stairway, that as part of the house was in their possession and control, not to allow it to become dangerous. It is supposed that. as executors they may have had no power to repair. It is conceivable that they had no such power at the expense of the estate. The presumption is otherwise. They had such a power at their own expense. They were not compelled to go into control of the property, but if they do so, they must fulfill duties and responsibilities that are grounded upon the fact of the power of management.

It is also argued that as tenant the plaintiff took the risks of the actual condition of the stairway. That if the defendants were ’ her landlord, they were not bound to repair it, during her tenancy. This might be, if the stairway had been part of the premises that had been let to the plaintiff. It was not. She had but a right of passage over it, as had the members of the other nine families in the building. It is not to be presumed that the arrangement intended that she or the others should keep the stairway in repair. The implication from the circumstances, is that it should be kept safe for them.

It was argued again, that the testimony showed that the plaintiff was guilty of contributory negligence. This question was properly left to the jury. The evidence did not incontrovertibly show that the plaintiff knew either that the step on which she said she intended to place her foot was gone or was likely to be found to be gone. The jury was at liberty to find that the plaintiff had been warned only that there was a loose step over which she might safely go if she went with care. No information necessarily was a warning, that she must expect to find a step gone.

Judgment affirmed and order affirmed with costs.

Truax, J.

[Concurring.] The statute (Laws 1867, chap. 908, § 4; Laws 1882, chap. 410, § 652), placed upon defendants the duty of keeping the stairs in good repair. This duty they failed to perform. For this reason, I concur.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J. Ingraham, J.

license: Public Domain

text:
    GEORGE McGOVERN as Temp. Adm’r, Appellant, v. MARGARET D. McGOVERN, Respondent.

      Decided June 16, 1884.

      Costs—when temporary administrator chargeable with.

    Where property which had belonged to the deceased and was in his possession within a short time of his decease, is immediately thereafter in the possession of his widow, and when the same is demanded by the temporary administrator, appointed under a will in which he is named as executor, but is not otherwise interested, the widow claims the ownership thereof, but does not explain the transaction or the manner or time of the transfer to her, and it does not appear that the administrator was cognizant of said facts, he should not be charged personally with the costs of an action to test the title of the property, in which the widow proves title by gift from her husband.
    Plaintiff in such a case, having been duly appointed temporary administrator under the will, the probate of which is contested by the widow, allegations as to his improper conduct, in inducing the testator to make the will, cannot be considered on such an application to charge him with bad faith. (Sedgwick, Oh. J.)
    Though the widow swears before the action, e. g., in an examination to enable a complaint to be framed, what the transaction was by which she obtained title, it does not necessarily show bad faith or mismanagement that the administrator disbelieves the statement of an interested party. (Sedgwick, Oh., J.)
    Defendant failing in such a case, to move for security for costs under section 3271 of the Code, plaintiff should be charged therewith only on clear proof of bad faith. (Ingraham, J.)
    Before Sedgwick, Ch. J., and Ingeaham, J.
    Appeal from order, directing that the costs of the action should be paid by the plaintiff personally, under section 3246 of the Code of Civil Procedure.

      It appeared that Daniel McGovern, the plaintiff’s testator, was in his lifetime a liquor merchant, carrying on business at the city of New York, and reputed to be a man of means. At the time of his death he was apparently in possession of a large stock of goods and a valuable good will, the sign over the door of the place of business being in his name, as were also the licenses under which the business was transacted. He left a will which was duly propounded for probate. The plaintiff, who was named as executor, endeavored to take an inventory of the estate. The defendant, his widow, refused to permit him to do so, claiming that the deceased had left no property or estate whatsoever. Thereupon, alleging the facts that the defendant threatened to contest the probate of the propounded will, plaintiff applied for and was granted letters of temporary administration. After such appointment tlie plaintiff again demanded possession of the property, which was refused. Defendant then moved to set aside the letters of temporary administration and the motion was denied. Plaintiff then instituted proceedings for the discovery of asset's of the deceased pursuant to the provisions of the Code (§ 90). Defendant claimed to be the owner of the property and the proceedings were dismissed for want of jurisdiction. Thereupon this action of conversion was brought to test the title to the property, in which action defendant claimed title by gift from her husband, and recovered a verdict.
    Defendant’s affidavits on this motion, to show bad faith, etc., among other things, alleged that the will provided that certain legacies should first be paid to plaintiff’s mother and sister, and thereafter a legacy to defendant; that the plaintiff personally had had the paper drawn, and procured a letter from the deceased’s physician advising the deceased’s being taken out to ride often ; took him out to ride on the day the paper was signed, when the deceased had to be carried to the carriage, and at a saloon on the Boulevard had the deceased’s cross put to the will, which he witnessed, and which will was not brought to the attention of the widow of the deceased until after the death of the said Daniel McGovern ; that at the time of the commencement of this action the plaintiff was not in possession of any property belonging to the estate.

      E. J. Myers, for appellant.
    There must be some specific cause or circumstances upon which the court convicts the plaintiff of bad faith in the prosecution of the action, to charge him with costs (Slocum v. Barry, 38 N. Y. 46).
    It was plaintiff’s du’ty to take possession of the personal property of the intestate ; to secure and preserve it, and to collect choses in action (Code Civ. Pro. § 2671; Redfield Sur. Pr. 349, 2d ed).
    The temporary administrator was in the honest discharge of his duty bound to bring this action (Schultz v. Pulver, 11 Wend. 312).
    It must be shown that plaintiff was influenced by some corrupt motive, or that his action was due to some undue interest in the proceeding.
    The motion was improvidently granted by the special term without a certificate by the trial term justice of the facts which bore on the question of bad faith (Parkhill v. Hillmann, Admr., 12 How. 353 ; Mersereaux v. Ryers, 11 How. 300).
    Turner, Lee & McClure, for respondent.
   By the Court.—Sedgwick, Ch. J.

The effort by defendant to show that the plaintiff had acted improperly in respect of the paper proposed as the deceased’s last will, cannot be considered on this appeal. The surrogate, with competent jurisdiction, thought it right to appoint the plaintiff to be the temporary administrator, and it became the duty of the latter to bring actions for the protection of the estate. The facts were that a large quantity of property that had belonged to the deceased and was in his possession within a short time before his death, was after his death in the possession of the defendant, and was claimed by her to be her own. It does not appear that she ever explained the transaction or the manner or time of transfer to her, or made a specific statement as to her kind of title. The only opportunity that the papers show the plaintiff had of learning this, was upon an examination of the defendant by the plaintiff, to enable him to draw his complaint. On that examination, when the questions approached an inquiry as to defendant’s title, the plaintiff’s counsel objected that the order for examination confined it to the defendant’s knowledge of the property, and all outside of that was objected to. When a question was asked whether the defendant had checks from the deceased in July, the defendant’s counsel objected, whether correctly or not need not be determined, or gave notice that the question was within the rule as to communications with a deceased person. The practical effect of this was to stop a line of questions that if followed, vrould have given the defendant power to be a witness as to the transfer to her.

Or, if she had stated under oath what the transaction was, it cannot be determined as the case stands, that it would have been bad faith or mismanagement on plaintiff’s part to have disbelieved'the statement of an interested party.

The case was unusual, and it does not appear that the plaintiff could have fully performed his duty without subjecting it to the test of litigation. For these reasons, my opinion is that the order should be reversed, and the motion below denied, with $10 costs and disbursements to be taxed.

Ingraham, J.

[Concurring.] The plaintiff was not personally interested in the result of the action, and in order to charge him personally with costs, it must appear that he was guilty of mismanagement or bad faith in the prosecution of the action (Code, § 3246). There was a substantial dispute between the legatees under the will and the defendant, as to the title to the property. Plaintiff was acting for the legatees under an appointment of the surrogate, and from the facts as they appeared prior to the trial, plaintiff, cannot be charged in prosecuting this action to test the defendant’s title to the property with bad faith.

• Defendant could have applied under section 3271 of the Code, to require plaintiff to give security for costs, and having failed to make such application, should not be allowed to compel plaintiff to pay the costs of an action which he was prosecuting for the benefit of others, without clear proof of bad faith I concur, therefore, with the chief judge that the order should be reversed.


author: By the Court.—Sedgwick, Ch. J.

text:
    MARY N. TOWNSHEND, Respondent, v. ELIHU WILLIAMS, Appellant.

      Decided June 16, 1884.

      Tax sales—defects in—presumption as to validity of lease.— Cloud on title.— Laws 1871, chap. 381.
    A lease of land executed by the city of New York upon a statutory sale of the premises for unpaid taxes, is void when founded on an advertisement giving notice of the sale of different premises described in a certain list, upon divers days named in said advertisement, and requiring redemption to be made on divers other days therein named, without designating which lots are to be redeemed each day.
    But a lease so given has sufficient presumptive validity to constitute a cloud upon title, and it may in a proper case be removed as such.
    Such a lease is still a cloud upon title though the comptroller has not after delivery of the lease duly executed the certificate necessary to cut off the right to redeem under the statute (Laws 1871, chap. 881, § 16). The lease is still valid, excepting there remains a right of redemption, which together with the invalid lease, the owner is entitled to have removed.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from judgment for the plaintiff entered upon the findings of a judge at special term.
    Action to have a certain lease given by the city of New York upon sale of premises for taxes, declared to be a cloud upon-plaintiff’s title and removed, upon the ground that though such lease was valid on its face and under Laws 1871, chap. 381, § 4, was presumptive evidence of the regularity of the proceeding under which it was given, yet that it was in fact void, proper notice of sale and redemption not having been given prior to the execution thereof. The advertisement of notice to redeem gave notice of sales of different premises described in a certain list on the 15th, 16th, 18th, 21st, 22d, 23d days of December, 1871, and required redemption to be made on 14th, 15th, 16th, 18th, 21st, 22d and 23d days of December, 1873, without designating which lots were to be redeemed each day.

      Anderson Price, for appellant.
    The a valid legal objection appears upon the face of the proceedings, through which alone the adverse party can claim, there is notin law sucha cloud upon his title as will authorize a court of equity to set aside proceedings (Van Doren v. Mayor, 9 Paige, 388 ; Hatch v. City of Buffalo, 38 N. Y. 276). It is a general rule that the owner of real estate must waif until his title is assailed. It is not sufficient that there is a formal title. Where the lien is invalid on its face, or its invalidity will necessarily appear in any proceedings taken to enforce it, the jurisdiction of equity cannot be invoked to set it aside (Townsend v. Mayor, 77 N. Y. 544 ; Guest v. City of Brooklyn, 79 Id. 624 ; Stuart v. Palmer, 74 Id. 185 ; Wells v. City of Buffalo, 80 Id. 253; Dederer v. Voorhees, 81 Id. 153).
    The defective redemption notice, would necessarily appear in proceedings by defendant to enforce claim, and it cannot be claimed that, the language of the statute, § 4, chap. 381, Laws 1871, has the power to make a wrongfully executed paper a valid instrument. The lease is not evidence of the power to sell; it is evidence only of the regularity of the act of selling (Doughty v. Hope, 1 Com. 79 ; Striker v. Kelly, 2 Den. 323). There are no presumptions of regularity when an officer conveys property of an individual. “Conclusive evidence” means only evidence as to sale itself, not as to prior or subsequent proceedings (Bunner v. Eastman, 50 Barb. 639 ; Hickox v. Tallman, 38 Id. 608).

      To divest the owner of lands by a sale for taxes, every preliminary step must be shown to be in conformity with the statute. It is a naked power, not coupled with an interest, and every prerequisite to an exercise of that power must precede it (Doughty v. Hope, 3 Den. 594 ; Brown v. Goodwin, supra). A provision in a section of a law cannot declare a paper, which can only be issued after complying with all the requirements of preceding sections, and can only be lawfully issued after such strict compliance, presumptive evidence of the due performance of the requirements of those preceding sections (Brown v. Goodwin, Abb. N. C. 458); so as to'prevent defects from appearing in proceedings to enforce (Donohue v. O’Connor, 45 Super. Ct. 297).
    The defects in the lease, on its face and in proceedings relating thereto, must necessarily appear, or be made to appear, in any proceedings to enforce same, and the court erred in denying the motions to dismiss the complaint.
    The lease was delivered before the notices had been served, which made it absolute, and the certificate of comptroller, which alone makes lease absolute, is not under seal, as required by § 13 of chapter 381 of 1871.

      John Townshend, for respondent.
    The lease was prima facie a valid lease, and presumptive evidence of the sale and all prior proceedings (Laws 1871, chap. 381, § 4).
    Although the lease was prima facie good, it was nevertheless invalid. This court has held that a notice like that upon which the lease was founded is defective, and that a lease founded upon it is. void (Donohue v. O’Connor, 45 Super. Ct. 297).
    The lease being evidence of the tax on plaintiff’s property, that the tax was unpaid, and that the property had been legally sold for a term of 1,000 years to pay said tax, the falsity of which could be made to appear by extrinsic proof only, the lease being in fact void, was a cloud on the plaintiff’s title such as a court of equity will remove. When the instrument is made presumptive evidence that the preliminary proceedings were had, the action to remove the cloud lies if the instrument is in fact void for a defect in the proceedings (Scott v. Onderdonk, 14 N. Y. 9 ; see also Crooks v. Andrews, 40 Id. 547 ; Newell v. Wheeler, 48 ld. 487 ; Story Eq. Jur. § 700).
    The fact of the lease being presumptive evidence of the regularity of the sale is sufficient to constitute a cloud, and plaintiff is not bound to go so far as to show that defendant could, if not opposed, recover possession by means of his alleged cloud; still, plain! iff submits that in an action to enforce the lease, the production of the lease without the certificate of the comptroller in regard to publication of notices after receipt of lease (§ 16), would entitle the plaintiff to recover.
    The provisions of Laws 1855, ch. 427, touching this point are identical with those in law of 1871, chap. 381. Under these provisions it was held : “The purchaser acquired by the comptroller’s deed the fee simple in the land subject to the lien of the mortgage (Beecher v. Howard, 4 Hun, 361; affirmed 66 N. Y. 7 ; See also Pell v. Ulmar, 18 N. Y. 139 ; Johnson v. Elwood, 55 Id. 435 ; Finlay v. Cook, 54 Barb. 30; Phyfe v. Masterson, 45 Super. Ct. 138; Colman v. Shattuck, 62 N. Y. 358 ; Curtis v. Follett, 15 Barb. 343; Hatch v. City of Buffalo, 38 N. Y. 276).
    But in this case it appears that the notices subsequent to the giving the lease have in fact been given, and the comptroller has been satisfied of that fact and has given his certificate to that effect, and the sole alleged defect as regards this is that, although he declares the certificate is under his “hand and seal,” no seal is found on the instrument. The presumption is the seal was affixed and has been displaced, but if it was never affixed the holder of the lease could have it affixed at any time and so complete the lease (Granden v. Herdandez, 17 Week. Dig. 88).
   By the Court.—Sedgwick, Ch. J.

The complaint asked that a lease given by the city, upon a sale of premises lor taxes, be declared to be a cloud upon the title of the plaintiff to the premises, and be removed, and judgment accordingly was allowed.

The principal objection argued upon this appeal'is, that the lease and the proceedings to it are invalid upon their face, and therefore the lease is not a cloud upon the title. I am of opinion that the lease has such apparent and presumptive validity that the plaintiff is entitled to its removal, but in fact the pleadings raise no such question and place the sole defense of the defendant upon the validity of the lease. The answer admits that the mayor, &c., by virtue of the power in them vested by statute, duly executed a lease purporting to be a lease of the premises mentioned in the complaint, to one Goodrich, for value, and that the defendant is the holder and owner of the same for value, and that the premises were sold at public auction for the non-payment of certain taxes duly levied or assessed upon said premises, “ and said purchase and said holding are in good faith and for value.” The answer calls these averments admissions, but they constitute the defense, and the defendant cannot make a contrary defense that the lease was apparently invalid.

The other objection relates to matters subsequent to the execution of the lease. It is taken under the provisions of section 16 of chapter 381, Laws of 1871. That section declares that if the comptroller be satisfied by a prescribed kind of affidavit, that notice for redemption had been duly served, and the money for redemption shall not have been paid, ‘1 he shall under his hand and seal certify to the fact, and the conveyance shall thereupon become absolute, and the owner and all others interested in the lands and tenements, shall be barred of all right thereto during the term ” of the lease. In the present case, the comptroller signed the certificate but he did not seal it, and the judge below, so found. It is argued that therefore the lease was not a cloud because it was not absolute. The section does not avoid the lease, but it is valid excepting there remains a right of redemption. The statement shows that apparently there is a valid lease, but that the owner of the fee, that is the plaintiff, has a right to redeem. She has a right to have removed the appearance of this right to redeem, as well as the lease, for that is derogatory to her title. The immediate right, is, to have removed this apparently valid, but really invalid lease.

Judgment affirmed, with costs.

Ingraham, J., concurred.


author: By the Court.—Truax, j.

text:
    PEOPLE ex rel. MARY N. TOWNSHEND, Relator, Respondent, v. ARTEMUS CADY, Clerk of Arrears, Respondent, Appellant.

      Decided June 16, 1884.

      Taxes—lien of on property—mandamus to compel receipt of—statute of limitations.

    In a proceeding by way of mandamus to compel the clerk of arrears to receive certain taxes alleged by relator to be a lien on her premises, it was shown that the taxes were imposed in the years 1861, 1863, 1866, 1867, and 1868, and there was no proof of non-payment or of their present existence. The relator pleaded the ten years statute of limitations.

      Held, that a mandamus will lie to compel the tax officer to receive the tax. That it being admitted the taxes in question once existed, in the absence of proof to the contrary, it will be presumed that they continue to exist; and further, that the statute of limitatidns does not discharge the debt, nor bar the right of the debtor to pay it, but affects only the remedy of the creditor.
    That these taxes are a lien on the property tiJLl paid (Laws 1871, ch. 381, § 1), therefore that the right to remove the lien continues concurrently, notwithstanding the statute of limitations.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from an order and judgment awarding the relator a peremptory mandamus, commanding the appellant., Cady, as clerk of arrears, to accept certain arrears of taxes for the years 1861, 1862, 1866, 1867 and 1868.

      The relator moved for an alternative mandamus and alleged the ownership of the property, the assessment of taxes in the years mentioned above ; she also alleged that said taxes remain unpaid ; that they were a lien on her land; that she had tendered the respondent the amount of such taxes and the accrued interest, and that he had refused to accept the same. The respondent denied that said taxes remain unpaid, and admitted the other allegations. He also pleaded, as an affirmative defense, that the relator’s right to apply for the relief now sought was complete more than ten years béfore the commencement of this proceeding and that ten years had elapsed before the tender of the taxes was made.
    The issues thus raised were tried by Mr. Justice Ingraham and a jury, and by direction of the court a verdict was found for the relator. Upon this verdict the relator moved for judgment, and judgment was ordered awarding writ.
    Upon the trial the only evidence adduced was proof of a conveyance of the premises to the relator and her possession thereunder. The appellant then moved to dismiss the writ, among other grounds, because, so far as it related to the faxes of 1861 and 1862, more than twenty years had elapsed since they were imposed and that the presumption of law was they were paid, and also, because there is no proof the taxes were unpaid. The appellant also moved for a verdict in his favor on the ground stated in his answer that ten years had elapsed since the right to pay the taxes accrued. The appellant’s motions were denied, to which, and also to the court’s ordering a verdict for the relator, he excepted.

      George P. Andrews, counsel to the corporation, and John J. Townsend, for appellant.
    It was incumbent upon the relator before being entitled to relief, to prove affirmatively the unpaid condition of the taxes, and to show that they constituted a lien at the time the present proceeding was begun. For aught that appeared, the lien of the taxes may have disappeared either by the payment of the taxes or by the sale of the lots for the non-payment of the taxes under the scheme contemplated by the statutes of this state —a scheme which everyone is presumed by law to know (Laws 1843, chap. 230, art. 3).
    The motion as to the taxes of 1861 and 1862, on the ground that the lapse of 20 years since the imposition of these taxes created a presumption in law of their payment, should in any event be granted (Fisher v. Mayor, 67 N. Y. 78, 80). Section 1, chap. 381, Laws 1871, does not interfere with or rebut the presumption referred to. No doubt, taxes, etc-., by the act are made liens until paid ; but the rules of evidence applicable in determining whether or not any particular tax is as a matter of fact paid or unpaid are not in any way affected by the act.
    That mandamus is a £‘ special proceeding ” and that the provisions of the Code in regard to the limitation of actions apply thereto, has been expressly held (People ex rel. Sheridan v. French, 31 Hun. 617). The particular limitation here invoked is that prescribed in section 388 of the Code—covering all cases not especially provided for. As to • each tax in question, the right of the relator or her predecessor in title to make the demand or tender on which the proceeding is based was completed in June of the year following the imposition of the tax. The clerk of arrears then takes charge (chapter 579, L. 1853, §§ 11, 16.) The tender and demand as to her most recent tax—1858—could then have been made in June, 1869. The actual tender and demand as to all her taxes was December 19, 1883. Thus the statute had then run as to all. That when a demand is necessary prior to the institution of a suit, the statute begins to run when the right to make the demand is complete, see § 410 of the Code.

      John Townshend, for respondent.
    The assessment of the taxes being conceded, it follows they were liens on the property for which it was liable to be sold. Prior to Laws of 1871, chap. 381, there was no specific enactment fixing the duration of this lien, but it was by analogy held that the lien continued for twenty years (Mayor v. Colgate, 12 N. Y. 140).
    By Laws 1871, chap. 381, § 1, these taxes imposed are made liens until paid. There is no presumption of payment.
    As to the objection that there was no proof of the taxes being unpaid, %. e., no proof of payment, a debt or obligation once shown to exist is presumed to continue.
    The court at trial term had power only to try the issues framed by the alternative writ and the return. It could not dismiss the writ (Code Civ. Pro. § 2083).
    Supposing that after ten years the debt cannot be enforced, still that does not show that the right to pay and discharge the lien is taken away. The statute of limitations is to protect against the enforcement of a debt and not otherwise (Morey v. Farmers’ Loan Co., 14 N. Y. 308 ; Lawrence v. Ball, Id. 477; Brady v. Begun, 36 Barb. 538).
    The motion for leave to pay these taxes is in the ^nature of an action to remove a cloud from the title. The causé of action continues as long as the cloud continues (Miner v. Beekman, 50 N. Y. 337-343).
    This court had jurisdiction to issue the mandamus People v. Green, 58 N. Y. 295). A mandamus is the proper remedy against a municipal officer who refuses to receive payment of a tax (Re Clementi, 92 Id. 591).
   By the Court.—Truax, j.

It is admitted that these taxes once existed, and in the'absence of proof to the contrary, it must be presumed that they continue to exist. The statute of limitations does not discharge the debt; it simply bars the remedy on the debt (Waltermire v. Westover, 14 N. Y. 20). In effect it does not dispense with the performance of the contract. It is for this reason, that such statutes have been held not to impair the obligation of the contract (Sturges v. Crowninshield, 4 Wheat. 207). The statute says that the actions therein specified must be commenced within the times mentioned in the statute (Code Civ. Pro. § 380). It raises a bar to the action, which bar the obligor may use if he see fit. It is personal to him as a defense.

It has been determined by the court of appeals that a mandamus will lie to compel the tax officer to receive the tax. It is true that such determination was reached in a case in which six years had not elapsed since the imposition of the tax, and in which a statute of limitations was not pleaded (Matter of Clementi v. Jackson, 92 N. Y. 591-5). But it is a right inherent in the owner of the fee to have a lien on his property removed, and these taxes are a lien on this property until paid (Laws 1871, chap. 381, § 1). This right continues while the lien continues, and therefore an action or proceeding to enforce this continuing right is not barred by the statute of limitations (Miner v. Beekman, 50 N. Y. 343).

The judgment and order are affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Truax, J.

text:
    JOHN G. HOFFMAN, Appellant, v. THE NEW YORK, LAKE ERIE & WESTERN R. R. CO., Respondent.

      Decided June 16, 1884.
    Pleading—denials, form of—Motion for judgment on pleadings—Amendment on appeal.

    A denial of each and every allegation of the complaint, except as admitted, qualified or explained, is not a good denial and raises no issue.
    A ruling denying plaintiff’s motion for judgment on the pleadings, in such a case, when made in due season at the opening of the trial, is to be tested on appeal by the answer as it then stood, and not as it would have been if changed by an amendment that was not granted or asked.
    But after the denial of such a motion, if plaintiff fails to make a case and his complaint is dismissed, the court on appeal in the interest of justice should allow the defective denial to be amended so as to stand as the pleader intended a general denial.
    Before Truax and Ingraham, JJ.
    Appeal from a judgment dismissing the complaint.

      Action to recover $2,000 damages, claimed to have been sustained by the plaintiff, consequent upon being ejected from the cars of the defendant on October 28, 1881.
    The'first paragraph of the answer “denies each and every allegation set forth in the complaint, except as herein admitted, qualified or explained.” The second paragraph admitted the first allegation of the complaint, viz.: as to incorporation of defendant, etc. The remaining paragraphs, which were numbered consecutively from the above, contained statements, that at the time mentioned in the complaint, a certain person, but whether plaintiff or not, the answer stated defendant was ignorant, was on defendant’s train, and presented an expired stop-over check, which he had obtained with knowledge of its conditions, and on being informed again thereof by the conductor and refusing to pay his fare, was expelled from the train with no more than reasonable force, etc.
    At the beginning of the trial plaintiff moved for judgment on the pleadings on the ground that there was no denial in the answer, which motion was refused.
    After the plaintiff rested his case, the court dismissed the complaint on the ground that a cause of action had not been shown.

      Edward S. Hatch, for appellant.
    The plaintiff was entitled to judgment on the pleadings. The denial contained in the answer is not authorized by the Code, and no issue is raised on it (Luce v. Alexander, 4 Civ. Pro. 428 ; Clark v. Dillon, 4 Id. 245 ; Leary v. Boggs, 3 Id. 227). There being no sufficient denial of the allegations of the complaint for the purposes of the action, the complaint is admitted (Code Civ. Pro. § 523 ; Swinburne v. Stockwell, 58 How. 312). There is no new matter in the answer constituting a defense or counter-claim (Radde v. Ruckgabe, 3 Duer, 684). There is no counter-claim, for that is apparent on the pleading itself.

      Abbett & Putter, for respondent.
    The first paragraph of the answer is a good denial (Calhoun v. Hallen, 25 Hun,
      155; Allis v. Leonard, 46 N. Y. 688; 22 Alb. L. J. 28 ; Youngs v. Kent, 46 N. Y. 672; 1 Bliss Code, 2d ed. 306, note 1). But assuming that the denial is not good, the other portions of the answer comply with subdivision 2 of section 500, and contain a statement of new matter constituting a defense. The answer alleges, beginning at paragraph III., the facts under which the plaintiff rode on the cars of the defendant, and these fact show that the plaintiff is not entitled to recover (See Youngs v. Kent, 46 N. Y. 673).
    After judgment, amendments will be allowed for the purpose of sustaining the judgment (See case 2 Bliss Code, 2d ed. 618, note g). Upon appeal to the general term the court may treat the pleading as having been amended so as to conform to the facts proved, in any respect in which the court ought clearly to allow an amendment upon application at special term (Foote v. Roberts, 7 Robt. 17; 1 Bliss Code, 2d ed. 620, note h).

   By the Court.—Truax, J.

The motion for judgment on the pleadings, made by the plaintiff at the commencement of the trial, should have been granted. The answer does not contain the general or specific denial of the allegations of the complaint required by section 500 of the Code of Civil Procedure. The motion was made in due season, and the ruling must be tested by the answer as it then was, and not by the answer as it would have been if it had been changed by an amendment that was not asked for or made (Tooker v. Arnoux, 76 N. Y. 397). As the pleadings then stood, and now stand the plaintiff was entitled to judgment.

But the evidence offered by the plaintiff on the trial does not entitle him to a judgment (Elmore v. Sands, 54 N. Y. 512 ; Townsend v. Cant, 56 Id. 295). He failed to prove a cause of action, and as the court at trial term, could have amended the answer so that it would have contained what the pleader intended it to contain—a general denial. We think that in the interests of justice the defendant should be allowed to amend its answer, nunc pro tunc, by striking out the words “ qualified or explained ” in the first paragraph. This privilege is given the defendant on its stipulating to satisfy the judgment heretofore entered against the plaintiff. On filing this stipulation the judgment will be affirmed without costs to either party. If the defendant do not give the stipulation above mentioned the judgment will be reversed with costs to the appellant to abide the event.

Ingraham, J., concurred.


text:
    MARY A. KING v. THE TRUSTEES OF ST. PATRICK’S CATHEDRAL, Impleaded, &c.

      Decided June 16, 1884.

      Conveyancing—implied covenants—description bounding land by closed highway —right to award of damages for closing highway.

    A. conveyed to B. certain premises by warranty deed containing the usual covenants, and describing the premises as bounded by the side of a certain road, which had been theretofore closed as a public highway by act of law, the deed granting all the right, title and interest if any of A. in so much of the said road as was adjacent to the premises conveyed. Thereafter an award of damage for the closing of said road as a public highway, was made.

      Held, that said award belonged to A.
    That B. is presumed to have receive his deed with "knowledge of the closing of said road and to have paid for the property its value with the road closed.
    That as there was no express covenant giving B. an easement in and right of way over said road, none can be implied.
    That the mere mention of the road in describing the property conveyed, was not such a statement of its actual existence as a road, as to make the grantor liable for damages.
    That the injury was done when the road was declared closed and became a personal right to damage belonging to the owner of the fee at that time, and not to the owner of the fee when the award was made.
    That the words “tenements, hereditaments, and appurtenances” in the deed, did not convey the grantor’s right to these damages.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Questions submitted to the court upon an agreed state of facts, under section 1279 of the Code of Civil Procedure.
    On April 25, 1871, Edward King and William Henry-King were the owners in fee of certain lots of land situate on the Bloomingdale road, between Ninety-sixth and Ninety-seventh streets, in the city of New York. On that day this property was conveyed by them by deed, containtaining the usual covenants, to Richard Brennan. Bloomingdale road was closed in March, 1868, under the provisions of chapter 697 of Laws of 1867 ; and at the time of the closing, such property was owned by said Edward King and William Henry King. The award for the damage caused by closing Bloomingdale road was made in December, 1880. The amount awarded for damage to the lots- so conveyed to Brennan was $7,865. The plaintiffs have succeeded to rights of Edward and William Henry King, and the defendants above mentioned, have succeeded to the rights of Richard Brennan.
    The lots in the deed to Brennan are bounded in front by the easterly side of the Bloomingdale road. The deed also conveyed to said Brennan all the right, title and interest of the grantors, “ if any, in and to so much of the land laid down on said map as Tenth avenue and Ninety-sixth and Ninety-seventh streets, and Bloomingdale road, as is adjacent to the land and premises,” conveyed to said Brennan.
    The matters in controversy were submitted in the following questions:
    1. Are the plaintiffs, Mary Augusta King, as executrix and trustee under the last will' and testament of Edward King, deceased, and David King, Jr., as committee of the estate of William H. King, a lunatic, entitled to said award? 2. If Mary Augusta King as executrix, &c., and David King, Jr., as committee, &c., are not entitled to said award, are the defendants, The Trustees of .St. Patrick’s Cathedral, entitled to said award? -3. Does the deed from Edward King and wife to Richard Brennan, dated April 25, 1871, contain or have any covenant or representation upon, or by reason of which, the plaintiff, Mary Augusta King, as executrix under said last will of Edward King, is now liable in damages to the trustees of St. Patrick’s Cathedral, for or by reason of the previous closing of said Bloomingdale road as aforesaid ? 4. Does the deed from Edward King, as committee, &c., to Richard Brennan, dated April 25, 1871, contain or have any covenant or representation upon, or by reason of which the plaintiff, David "King, Jr., as committee of the estate of William H. King, is now liable in damages to said trustees of St. Patrick’s Cathedral, for or by reason of the previous closing of said Bloomingdale road, as aforesaid ?

      James A. Peering, for plaintiff.
    I. The road was closed March 8, 1868, when the map of the Central Park Commissioners was filed omitting it (chap. 697, Laws 1867, § 3 ; Fearing v. Irwin, 4 Daly, 385). The damage or injury by the closing was then done (at the closing), and became a personal right to damages, for which the act provided a remedy. By the very terms of the act the road was then closed as a public road, and the damages provided for, are for the injury done by such closing (Pentz v. Mayor, 24 Wend. 668; Hatch v. Mayor, 43 Super. Ct. 426). The right to the damages in such cases, although not ascertained or allowed, will not pass by the deeds executed subsequently to the closing (Schuylkill Nav. Co v. Decker, 2 Watts Penn. 343 ; McFadden v. Johnson, 72 Penn. 335 ; Arthurs v. Penn. R. R., 27 Leg. Int. 237; Tenbrook v. Jakke, 77 Penn. 392).
    II. The claim must be based upon some specific covenant. There can be no claim upon any implied covenant (R. S. 2d ed, 689; Canaday v. Stiger, 3 J. & S. 423). There is no specific covenant or statement as to the .existence of said road as a public road in the deed. The reference to the road is in the general description only, and is used for the purpose of description and as one of the boundaries. This does not amount to a covenant or representation. It does not .attempt to or in terms convey an easement (Wheeler v. Clarke, 58 N. Y. 267; Howe v. Alger, 4 Allen [Mass.] 206 ; Hennessy v. O. C. & N. R. R. Co., 101 Mass. 540).
    The act made the filing of the map constructive notice of the action of the Central Park Commissioners (Wheeler v. Clarke, 58 N. Y. 267). Parties are presumed to contract in reference to the condition of the property as it is at the time of sale (Summers v. Bloonan, 47 N. Y. 3; Lampman v. Milks, 21 Id. 505).
    Nor did the words of description amount to the grant of an easement to Brennan which the grantors could not "convey, and for failure of title to which they are liable under any covenant in the deed. Since the Revised Statutes no right of way or easement is created by mere description of a lot bounding it on a street. There must be an express covenant or grant. All of the early cases wherein it has been held that by bounding upon a street" the grantee of a lot took an easement or right of way over'such street, were put upon the common law rule that such description constituted an implied covenant that there was such street or right (Kent’s Comm. 432).
    III. If the Revised Statutes have not. abolished the doctrine of dedication by abolishing implied covenants, then the description used in the deeds to Brennan at most constitute the grant of an easement in the parcel referred to as to a road, as between the grantors and grantee only. Where a grantor in his deed conveys, fronting on a street which the public authority has not laid out or accepted, the grantee at most can only claim a private easement or right of way. Such dedication is not public, and no right to the use thereof by the general public is given (Cox v. James, 45 N. Y. 557; Bissell v. N. Y. C. R. R., 23 Id. 61; Perrin v. N. Y. C. R. R., 36 Id. 120).
    This private right created in 1871 was not affected in any .manner by the previous closing of the road by the Central Park Commissioners as a public road or highway of the city.

      The award in question was made for the damage done by-closing the road asa public road of the city.
    Neither Brennan or his grantees could maintain an action to have the road kept open as a public road (Underwood v. Stuyvesant, 19 Johns. 181).

      Charles E. Miller, for defendants.
    I. It was the intent of the conveyances to transfer the right to damages thereafter to be ascertained and paid: (a) The ordinary effect of the description bounded by the easterly side of the Bloomingdale road would be to convey an easement and right of way over the road (In re Mayor, 2 Wend. 472; Smyles v. Hastings, 22 N. Y. 217; Cox v. James, 45 Id. 557). But as the road was closed by law no such easement or right could be granted, and we must give effect to the description, by holding that it transferred the equivalent, to wit, the right to the then unascertained damages. (&) The right to damages was appurtenant to the land conveyed, and was transferred by the use of the words, “ tenements, hereditaments and appurtenances.” The continuous right to use the street was clearly appurtenant to the g¡ ant of the land. If such right did not pass, then its substitute, to . wit, the right to the damages was granted.
    II. The covenant of warranty in the deed from Edward King to Brennan was broken by the fact that Bloomingdale road had been closed.
    III. That injury resulted from the closing of the road is res adjudícala, by the award.
    IV. The fund representing the damage to the premises by reason of the non-existence of the road being in court will be administered by it in equity according to the equitable rights of the parties (Underwood v. Stuyvesant, 19 Johns. 181). The easement in a street bounding the premises is of value and cannot be taken without compensation to the owner of such easement, even though other accesses remain to the premises (Re Mayor, 1 Wend. 262 ; Matter of Lewis street, 2 Id. 472; Livingston v. Mayor, 8 Id. 85).
    As between plaintiffs and defendants the Bloomingdale road was and is a street. If by reason of superior right to either, the city can claim that it is closed upon payment of damages, such damages are payable inter partes to those who are the’only parties injured by its closing, and who have the only interest in desiring that it should remain open (Bissell v. N. Y. Cent. R. R. Co., 23 N. Y. 61 ; Matter 11th Avenue, 81 Id. 436; see also Cox v. James, 45 ld. 557; Wiggins v. McCleary, 49 Id. 346 ; Taylor v. Hopper, 62 ld. 649).
    V. Plaintiffs having conveyed the lots, describing them as bounded by a road, are estopped to deny that such a road existed, or that the grantor might use the same, and such estoppel is as effectual as a warranty (3 Washburn Real Estate, 467). And the right to use the road in case of such an estoppel implies and embraces the right to everything ■ issuing out of such use, to wit: payment for deprivation of such right (Parker v. Smith, 17 Mass. 413; Emerson v. Wiley, 10 Pick. 310; O’Linda v. Lothrop, 21 Id. 292 ; Tuft v. Charlestown, 2 Gray, 271; Thomas v. Poole, 7 Id. 83 ; Farnsworth v. Taylor, 9 ld. 162; Rodgers v. Parker, 9 Id. 445 ; Stetson v. Dow, 16 Id. 372 ; Gaw v. Hughes, 111 Mass. 296).
    VI. So far as appears neither party knew of the closing of the l’oad at the time of the conveyances. It was not closed by direct operation of law but by acts of commissioners, dehors, by filing maps, etc. (ch. 697, Laws 1867, § 3). Bad faith in describing the lots as bounded by the Bloomingdale road will not be imputed, but, on the contrary, it will be implied that each of the parties supposed that the Bloomingdale road existed at this point.
    Equity will apply the maxim nemo debet locupletari ex alterius incommodo (Story Eq. Jur. § 1234; Broom's Maxims, 124; Dig. Cor. Juris. Civilis, lib. 50, tit. 17, 1 200).
   By the Court.—Truax, J.

At the time of the conveyance by Brennan, Bloomingdale road was closed as a public highway by authority of law. He is presumed to have received his deed with knowledge of this fact, and to have paid for the property conveyed to him its value with the road closed. There is no covenant expressed in the deeds to him—and one cannot be implied—that would give him an easement in and right of way over said road, and it cannot be said that the mere mention of the road in describing the property conveyed, was a statement of its actual existence as a road, upon which the grantors are liable for damages.

The third and fourth questions are answered in the negative.

The injury was done at the time Bloomingdale road was declared closed, and then became a personal right to damages. This right belonged to the then owner of the fee, and not to the owner when the award was made. The use of the words ‘‘tenements, hereditaments and appurtenances,” in the conveyances to Brennan did not pass to him the right to these damages (Hatch v. Mayor, 43 Super. Ct. 436).

The first question is answered in the affirmative, the second is answered in the negative.

Judgment is awarded to the plaintiff, for the sum of $7,865, with interest from April 8, 1881, as stipulated.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


author: By the Court.—Ingraham, J.

text:
    LEO NEUMAN, Appellant, v. THIRD AVENUE R. R. CO., Respondent.

      Examination of party before trial.—Physical examination—power of court to order.

    Neither the Code nor any statute confers upon the court the power to compel a party to an action to submit his body to an examination by a physician, for the purpose of ascertaining his physical condition and proving the same at the trial ; nor does the court possess such power, excepting in a case where no other means exist, of ascertaining, and establishing an alleged material fact in the issue.

      Decided June 16, 1884.
    Such an examination and inspection lias been allowed only on the ground of necessity, as in the case of an action for a dissolution of marriage on the ground of impotcncy or incapacity, and resting upon necessity, it cannot be exercised otherwise, and ends where the necessity ends Walsh v. Sayre (¡52 Sow. 3;!4), disapproved ; Roberts Ogdensburg R. R. Go. (29 Sun, 155), approved.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by plaintiff from order of the special term, denying a motion to vacate an order for the examination of the plaintiff as a witness before trial, and for the examination of the plaintiff’s body and person to be made by snch physician as may be procured to attend by the defendant.
    The action was for damages for personal injuries alleged to.have been caused by defendants negligence.
    The facts appear in the opinion.

      Benjamin Patterson, for appellant.

      Lauterback & Spingarn, for respondent.
   By the Court.—Ingraham, J.

So far as the order directed the examination of the plaintiff as a witness before trial, I think the court below was right. The affidavit on which it was granted complies with the requirements of the Code, and from that affidavit the necessity and materiality of the plaintiff’s evidence is shown. It appears that defendant has no knowledge of the time and place of the accident and number of the car that caused the accident, that the'only person who has such information, to defendant’s knowledge, is the plaintiff, and that the deposition of the plaintiff is desired to be read at the trial of the action.

The order appealed from in addition to the provision requiring the plaintiff to appear and be examined as a witness, directs that the “ examination as to the physical and bodily condition of the plaintiff be by an actual inspection of the plaintiff’s body and person. Such inspection and examination of plaintiff’s body to be conducted and made by such physician as may be procured to attend herein by the defendant, and the said physician is thereby authorized and empowered to make such inspection and examination.”

, The power of the court to compel a party to an action of this kind to submit his body to an examination must, therefore, be determined. By the adoption of the Code of Procedure in this state the disability as witnesses of parties interested in the action was abolished, and the rules governing their examination as witnesses before the trial of actions and for the discovery of books and papers in the possession of an adverse party, were prescribed. No authority for such an examination as is here applied for can be found in the Code, and ,if it exists at all, it must be found in the inherent power of the court apart from any statutory authority.

In actions for a dissolution of marriage on the ground of impotence, it has long been the practice of the court of chancery to compel the parties when necessary to submit their person to an inspection by physicians to be named by the court, but such an inspection was allowed on 'the ground of necessity only. As was said by Lord Stowell in Briggs v. Morgan (3 Phill. 325), nature has provided no other means, and w’e must be under the necessity of saying that all relief is denied, or of applying the means within our power.” The power, however, resting in necessity ends where the necessity ends, and it has been held that where the party has been examined by- physicians, no further inspection will be ordered. The testimony of the physicians will be taken (Brown v. Brown, 1 Hag. Ec. 523).

In this state this power has been sustained by the court where it is necessary to ascertain the fact of incapacity, and “without which it would be impossible for any court to exercise such a jurisdiction. (Devenbagh v. Devenbagh, 5 Paige, 556). This power, however, resting as it does on the special nature of the action in which it is allowed, is no authority for extending it to other cases in which such necessity does not exist. The writ de ventre inspiciendo is also cited as an instance in which such an inspection was allowed, but that writ has long become obsolete and has never, as far as T have been able to discover, been recognized in this country. These are the only instances to my knowledge in which an inspection of the person were allowed at common law, and cannot be cited as authorities for the order appealed from.

The case of Walsh v. Sayre, (52 How. 334), is the first case in which such an application was passed on by the court that I have been able to discover. That was an action against a physician for malpractice and an application of the defendant. The special term of this court ordered the plaintiff, an infant, to submit to an examination. It was admitted by the learned judge in his opinion in that case that there was no recorded case where such an application had been granted, and it appears to me that the reasons on which he bases his conclusions are rather those that should be addressed to the legislature to enlarge the power of the courts.

The position taken by that case,—that the abrogation of the rule that a party interested in the event of an action cannot be permitted to testify, removes all restraint and leaves the court to unfettered action except so far as it is curbed by the provisions of the statute,—appears to me broader than can be sustained. The effect of the removal of the restriction, is that rules for the examination of the party thus allowed to testify, should be governed by the rules applicable to the examination of other witnesses. It gives the court no greater power over such parties, than it had over other witnesses. The provision of the Code is that except as otherwise specifically prescribed, a person shall not be excluded or excused from being a witness by reason of his or her interest In the event of an action, etc. (Code Civ. Pro. § 828).

The portion of the order appealed from now under consideration, does not provide for the examination of the plaintiff as a witness in the action, but compels the plaintiff to allow other persons to examine him, so that defendant may ascertain plaintiff’s condition.

The courts have uniformly refused to compel a party to submit property or chattels that were the subject of controversy to the inspection of experts or to the adverse party (Ansen v. Tuska, 19 Abb. 391 ; Miner v. Gardner, 4 Hun, 132), and in Cooke v. The Lalance G. Man. Co. (29 Id. 641), the supreme court held that there was neither power nor authority in it to compel an inspection of the machinery, in possession of the defendants, that caused an accident.

Several cases are cited where the court of common pleas at special term have followed Walsh v. Sayre (supra), but they appear to have been decided on the authority of that case. Harrold v. New York, &c. R. R. Co. (21 Hun, 268), is also cited in support of this application, but in that case the order only required the plaintiff to be examined as a witness, and did not require him to submit to a physical examination, and the plaintiff who was to be examined did not appear, but the defendant appealed from certain restrictions in the order.

The exact question, however, was before the general term of the supreme court in the case of Roberts v. Ogdensburgh R. R. Co. (29 Hun, 155), and after reviewing all the cases cited by respondent, it was held that the court had not the power to compel such an examination, and with the reasoning and conclusions of the court in that case I concur.

Respondent has cited the cases of Schroeder v. C. R. I. & C. R. R. Co. (47 Iowa), Miami & Montgomery Turnpike Co. v. Bailey (37 Ohio St. 104), and Atchison T. & S. F. R. R. Co. v. Thiel (44 Amer. Rep. 659), in which orders of the kind in question had been upheld, but no precedents are cited, and I do not think they should be followed.

I am therefore of the opinion that the court had no power to compel the plaintiff to submit to a physical examination and the order appealed from, must be modified by striking out the provision requiring plaintiff to submit to such an examination, and as so modified, affirmed with $10 costs and disbursements to appellant to abide the event of the .action.

Sedgwick, Ch. J., concurred.


text:
    FREDERICK J. ALLIEN, Appellant, v. GEORGE WOTHERSPOON and DUNCAN McTAVISH, Respondents.

      Decided June 16, 1884.

      Sale of personal property and choses in action, by apparent owner.—Seat and certificate ¡of membership in Ootton Exchange.

    Though a purchaser of a chose in action (with the exception of negotiable paper), takes no better title than his vendor has at the time of the purchase, yet it is equally well established, that where the true owner of property represents another as the owner, or permits him to appear as the owner, with full power of disposal of the property, and, thereby innocent third parties are lead into dealings with such apparent owners, they will be protected, and the real owner, by his acts, is precluded or estopped from denying the title of the property in such apparent owner.
    In the case at bar the plaintiff and defendant Wotherspoon, as copartners, bought a seat in the N. Y. Cotton Exchange, and with the assent of plaintiff the certificate was issued in the name of Wotherspoon alone, and the apparent ownership thereof was vested in him. Subsequently Wotherspoon assigned the certificate to defendant, McTavish as security for a loan of bonds, asserting that he owned the seat, and McTavish having no knowledge to the contrary parted with his bonds, on the faith of the title of Wotherspoon.

      Held, that McTavish was entitled to the seat and certificate as security for his loan and that plaintiff was estopped from denying the title he permitted to be vested in his copartner.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by plaintiff from judgment of the special term on trial of the action by the court without a jury.
    The action was brought by the plaintiff against the defendant Wotherspoon to have the partnership of Wotherspoon & Co., composed of the plaintiff and the defendant Wotherspoon, declared dissolved, and for an accounting, and that the defendant McTavish account for a certificate of membership of the New York Cotton Exchange, which was partnership property, and which had been pledged to him by the defendant Wotherspoon, in a matter growing out of an individual transaction between them.

      The point in controversy on this appeal relates solely to the certificate of membership of the New York Cotton Exchange.
    Further facts appear in the opinion.

      C. Bainbridge Smith, for appellant.

      Stephen P. Nash, for respondent.
   By the Court.—Ingraham, J.

The action was brought for a dissolution of a copartnership between the plaintiff and the defendant Wotherspoon, and an accounting. Defendant McTavish was joined as a party on the ground, as alleged in the complaint, that there had been transferred to him a seat in the New York Cotton Exchange, which was the property of the copartnership, and which defendant Wotherspoon to secure some private liability had wrongfully transferred to said defendant McTavish, who well knew that said seat was partnership property. The relief asked against defendant McTavish, is that, he account for said seat in the New York Cotton Exchange, or the value thereof.

The certificate of membership in-question certifies that George Wotherspoon is a member of the New York Cotton Exchange and that said certificate may be transferred upon the books of the Exchange to any member, or member elect, and is signed by the president and treasurer. This seat was purchased by the firm, and was taken in the name of Wotherspoon with the assent of the plaintiff.

Wotherspoon being in need of money to pay a judgment against him, applied to the defendant McTavish for a loan, which he refused to give, unless the membership in the Cotton Exchange was assigned to him as security for such loan, which Wotherspoon agreed to do. McTavish swore that he was not aware that plaintiff had any interest in the certificate.

The court found that Wotherspoon represented to Mc-Tavish that he was the absolute owner of the seat in his individual right, and had a certificate of the fact in his own name; that McTavish believed that fact, and had no knowledge that Wotherspoon was not the owner of said seat, or that plaintiff claimed to have any interest or ownership therein ; that on the 14th of February, 1883, McTavish loaned to Wotherspoon six United States bonds, and at the same time Wotherspoon assigned the said seat, standing in his name, to McTavish as security for the return thereof; that two of the bonds were not returned, and the other four were returned on McTavish paying the sum of $2,877.54, the amount which Wotherspoon liad borrowed thereon. As matter of law, the court found that defendant McTavish should reassign the membership on being paid the amount due from Wotherspoon.

An interlocutory judgment was thereupon entered adjudging McTavish a bona fide holder of the seat in the Cotton Exchange, and directing the referee appointed by said judgment, to ascertain and report the amount due to McTavish from Wotherspoon, and that upon payment of the sum thus found due, McTavish reassigned the certificate of membership to the receiver appointed by said judgment.

Plaintiff claims that this was error, as the defendant McTavish has not pleaded that he was a bona fide holder of the seat without notice ; but I do not think he can now raise that questidn. Defendant McTavish without objection was allowed to testify that lie loaned the bonds on the faith of the certificate, without knowledge of the interest of the plaintiff,, and no motion for judgment was made on the ground stated. If plaintiff desired to raise that question, he should have done so at the trial, so that if necessary, the pleadings could have been amended, and it is too late to make such an objection on appeal.

But on the facts proved and found by the court below, I think that judgment appealed from was right.

That the purchaser of a chose in action (except negotiable paper), or other personal property, takes no better title to the thing purchased than his vendor has, is a well-settled rule of the common law, and McTavish could get from Wotherspoon no better title to the membership than Wotherspoon had, as against any one who could show a better title to the property.

The question is has the plaintiff any title to or interestin the seat in the Exchange that he can set up as against Mc-Tavish. There is no different rule as respects a chose in action (excepting negotiable paper), and personal property of any kind. A purchaser of such a chose in action takes it subject to all the equities between his vendor and the obligor, or, in other words, the purchaser gets just what his vendor had to sell and nothing more.

' But there is also another principle of the common law which is equally well established, and that is, that where a person makes a representation of the existence of a fact, and another person, without notice, acts on the faith of such representation, the person making the representation is estopped from denying the existence of such facts. One of the illustrations of this principle is, that when “ the true owner of property holds out another as, or allows Mm to appear as the owner, or as having full power of disposi-. tion over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the acts of the real owner which preclude him from disputing as against them, the existence of the title or power, which through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance” (McNeil v. The Tenth National Bank, 46 N. Y. 329). The mere possession of the property is not sufficient, there must be more than the bare naked possession. There must be conferred on the apparent owner, some indicia of title, so as to make it appear that the absolute title in the property vests in him. As Judge Grover says in Moore v. Metropolitan National Bank (55 N. Y. 48), “No one pretends that mere possession (of non-negotiable elipses in action) is any more evidence of the title in the possession than is that of a horse.”

The question to be determined here is, did the plaintiff confer on Mr. Wotherspoon such an apparent title to the exchange seat as to bring him within the rule %

The' seat was bought by the firm, and with the assent of the plaintiff was taken in Mr. Wotherspoon’s name; The certificate was in the possession of the firm, and its terms must have been familiar to plaintiffs. That certificate, which was the evidence of ownership, declared that George Wotherspoon was a member of the Exchange and that “ this certificate may be transferred upon the books of the Exchange.” This clothed Wotherspoon with the apparent absolute title to the seat. He owned it so far as appeárances went, as much as Goodyear & Co. did, the certificate of stock in McNeil v. Tenth National Bank, (supra), or as Miller did the certificate of indebtedness in Moore v. Metropolitan National Bank (supra).

That McTavish delivered the bonds to Wotherspoon on the faith of this apparent ownership can not be doubted Wotherspoon told him he owned the seat, and would assign it to him as security. McTavish then gave Mr. Kings ford seven government bonds and instructed him not to deliver them, unless he, Kingsford got the certificate. Mr. Kingsford thereafter delivered the bonds, and got the certificate with an assignment to McTavish.

McTavish thus parted with his bonds on the faith of the title apparently conferred on Wotherspoon by this certificate, and as this apparent ownership was in Wot'her-spoon with the assent of plaintiff, the case comes within the principle of the cases above cited.

In the cases relied on by plaintiff, the owner of the property conferred on the person who attempted to dispose of it, the possession only, as in Ballard v. Burgett, (40 N. Y. 314), or in some way limited the apparent ownership or power of disposition, or there were disputes as to the equities between a mortgagor and the assignees of the mortgagee. Of course, no representation that the mortgagee made could affect the rights or equities of the mortgagor, and, as said in Green v. Warnick (64 N. Y. 225), “ The estoppel can only operate against the party whose act created it,' and cannot affect the rights of other persons.” But in this case, the apparent title was, with the assent of plaintiff, in Wotherspoon, and McTavish having loaned the bonds on the faith of such apparent title, I think the plaintiff is estopped from claiming that Wotherspoon was not the owner of the seat.

The fact that one of the witnesses testified that seats in the Exchange are not bought and sold, is met and contradicted by the certificate itself, “ this certificate of membership may be transferred on the books of the Exchange,” and whatever right this transfer may give McTavish, he is entitled to such right as security for his loan.

The testimony of McTavish that he was not aware of the claim of plaintiff to an interest in the seat, justified the finding of the court. The question was, “ Did you know at the time, or had you ever known that Mr. Allien had any claim in any way to the certificate ?” and the answer was, “ I was not aware of it.” This was in effect that he was not aware that plaintiff had any claim to the seat.

This I think disposes of the objection taken by the appellant, and lam of the opinion that the judgment appealed from should be affirined with costs.

Sedgwick, Ch. J., concurred.


text:
    WILLIAM C. KIBBE, Appellant, v. HENRY C. BOWEN, Respondent.

      General release—what claims discharged Ity—when set aside.

    A release of everything due or to become due, under a specific contract, in which the parties to the release are jointly interested, which interest was in dispute between them, releases all benefits thereafter accruing from it whether the parties knew that there would be any such benefits or not.
    Conceding that the party seeking the protection of the release, and who received such subsequent benefits-from the contract in question, occupied a fiduciary relation to the person claiming a share in such benefits, yet the release cannot be set aside where the settlement was apparently fair, and there is nothing to show that the party setting up the release knew such benefits would accrue.

      Decided June 16, 1884.
    A party cannot rescind a settlement and avoid his release on the ground of fraud, without restoring or offering to restore the consideration that was paid him (Gould 11. Cayuga Bank, 86 N. T. 79).
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    Appeal from judgment entered on report of referee, dismissing the complaint.
    The action was brought to recover the value of one-third of certain shares of the stock of the Northern Pacific Railroad Company, issued by said company to defendant, under a contract between said company and defendant, in which contract plaintiff claimed an interest under a memorandum of agreement, between him and said defendant. The defense was a settlement and general release.
    Further facts appear in the opinion.

      Theodore G. Sears, for appellant.

      George G. Holt, for respondent.
   By the Court.—Ingraham, J.

At the time of the submission of the dispute between the parties to this action to arbitration, plaintiff claimed that he was entitled to receive from the defendants $18,666.66, in stock of the Northern Pacific R. R. Co., as one-third of the $56,000 of stock mentioned in the memorandum agreement signed by the defendant. And at that time plaintiff understood that defendant had not received this stock, but a portion of it was to be received under the contract with Jay Cooke & Co., and the right of plantiff to share in the stock that was to be received under the contract, was in dispute between the parties, and was one of the questions that was submitted to the arbitrators.

No award was ever made by the arbitrators, and on May 12, 1879, the parties settled all the difference between them. At that time plaintiff supposed that all the stock had been divided, and that defendant had received the entire amount of such stock which he might be entitled to receive, in any contingency, under his subscription. So that at the time of the settlement, plaintiff acted on the supposition that stock had been received by defendant, that he claimed he was entitled to receive one-third of such stock, and defendant claimed that he was not.

The stock was at the time of the settlement of no value on the market. It has only been of value two years prior to the trial (February, 1882). On May 12, 1879, the parties settled all difficulties between themselves ; wrote to the arbitrators a letter stating that the differences between them had been amicably settled; executed an agreement of settlement which recited that the parties had that day amicably settled all interests and accounts between them up to that date—defendant to satisfy a mortgage on plaintiff’s property, plaintiff to receipt for all claims for services against defendant, and plaintiff to receive fifty shares, defendant, one hundred shares of the Northern Pacific R. R. stock, at that time received from estate of Jay Cooke & Co.,—and, providing that, furthermore, there was, after this settlement, no further claim, the one against the other. On the same day, plaintiff executed a general release under seal,, reciting the agreement between defendant and Jay Cooke & Co., providing as follows: “I, W. C. Kibbe, do hereby declare and certify, under my hand and seal, that I have this day made a full settlement with said Bowen, have received full payment from him of all claims or demands due or to become due of every name and description, either for services, expenses, commissions to himself personally, or to ‘ The Independent,’ or to the Northern Pacific R. R. Co., or to Jay Cooke & Co., etc., or otherwise.”

The terms of this settlement were carried out by the defendant, and plaintiff received and retained the consideration paid him at the time, and has never offered to return such consideration to the defendant.

That whatever mere right the plaintiff had to share in the stock of the railroad company, received under this contract, was included in this settlement, there can be no doubt. The terms of the settlement are sufficient to embrace such claim, and the release given by plaintiff expressly declares that plaintiff has “received full payment of all claims or demands due or to become due of every name and description.”

The right to receive this stock existed by virtue of the original agreement with Jay Cooke & Co., and although defendant had not received the stock at the time of the settlement, it was a claim under that contract, and would, if plaintiff was right in his contention, be a claim or demand against defendant, which would become due when it was received and it was thus a claim and demand that was discharged by the release.

It appeared that in 1877, the directors of the Northern Pacific R. R. Co. adopted a report of a committee by which it appears that defendant, under the contract with Jay Cooke & Co., was entitled to 952 shares of the stock of the company, and plaintiff says, at the time he was not aware of that fact, and that as defendant was trustee of plaintiff, the release cannot operate to discharge an .obligation, to account for the stock subsequently received. Conceding that defendant was trustee of the plaintiff for one-third of the stock (which I think is open to question), yet there is no evidence that defendant knew, when the settlement was made, of the action of the directors of the railroad. The stock was not directed to be issued until March, 1881, and there is no evidence that prior to the settlement this right of defendant was of any value whatever.

Prom the time of the submission to the arbitrators, plaintiff had claimed the right to an Interest in the stock, and defendant had denied such right and it may, as before stated, be assumed from plaintiff’s testimony that he understood at the time of the settlement, that defendant had received this stock from the company. But however that is, the claim to share in this stock was one of the differences between the parties at the time the settlement was made— was one of the differences that was settled, and there was no evidence that defendant failed to communicate any knowledge that he had on the subject when the settlement was made.

There is no evidence that this was not at the time a fair settlement between the parties. Plaintiff says the stock of the company was not worth the paper ic was written on in the market at that time. The release expressly says he has received full payment of all claims and demands due or to become due, and it must have been the intention of the parties that by such settlement plaintiff should have no further interest in the agreement with Jay Cooke & Co.

Plaintiff cannot rescind the settlement on the ground of fraud, without restoring or offering to restore to the defendant the consideration paid him. This he has failed to do (Gould v. Cayuga Co. Bank, 86 N. Y. 79).

I agree therefore with the referee, that the settlement and release bars the claim made by the plaintiff.

The judgment should therefore be affirmed, with costs.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    JOHN BRENNAN, Appellant, v. MAURICE W. OSTRANDER, Respondent.

      Decided June 16, 1884.

      Accord and satisfaction.

    An accord unexecuted by performance of its terms, is no bar to an action on the original claim, and cannot be made the basis of an action upon the same, as a new promise or agreement; and tender of performance or of execution of the accord is insufficient.
    In such a case, in order to sustain an action on the new promise, there must be a consideration to support it, and there is no such consideration unless the original obligation was satisfied and the new one accepted in its place.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Appeal by plaintiff from judgment entered on verdict of a jury.
    The action was brought to recover the sum of $900 and interest which plaintiff claimed to be the amount agreed upon in settlement and compromise of a disputed claim of plaintiff against defendant, for damages, for the death of plaintiff’s child by falling from a tire-escape of the house hired by him from defendant.
    The facts appear in the opinion.

      H. H. Shook, for appellant.

      E. H. Underhill, for respondent.
   By the Court.—Ingraham, J.

I do not think that the evidence of the plaintiff was sufficient to show an accord and satisfaction.

It is settled in this state that an “accord executing without performance accepted, is no bar. Tender of performance is insufficient” (Kromer v. Heim, 75 N. Y. 577), and in Noe v. Christie (51 N. Y. 273), on an agreement to settle a suit by the payment of a draft for $70 and the costs of suit, on payment of the draft and tender of the costs, the court say : “ Indeed it is conceded that the costs required to be paid under the agreement set up, were never in fact paid, and assuming that they were tendered, the fact was not equivalent to its execution. It was, nevertheless, at most a simple unexecuted accord and was not a satisfaction.”

The evidence in this case was that plaintiff’s attorney after presenting a claim against defendant for plaintiff, had an interview with defendant at the plaintiff’s attorney’s house at which defendant offered $600 for plaintiff, and $250 for the attorney ; that the attorney refused such offer and said, “ Inasmuch as that brings you up to $850, if you will make it up to $900, I think Mr. Brennan (plaintiff) would be willing to accept that, and I will see him and reportupon which defendant replied, “Very well, I will make the offer $900.”

The following day plaintiff’s attorney called on defendant and said plaintiff would accept the $900. Defendant said, “Well, I will be down to your office on Wednesday, and I will in the mean time see my lawyers and have the release drawn up for your man to execute to which conversation the witness added, on cross-examination, that defendant said, “ I will come to your office on Wednesday and the matter can be settled up.”

This, I think, goes far short of accord and satisfaction of the old liability and an agreement to substitute the new promise in its place.

It will be noticed that there is no express promise to pay any sum of money. It is all in the future and executory. First was the offer, and when defendant was told the offer would be accepted, the reply was, “ I will be down on Wednesday and will see the lawyer, &c., and on Wednesday the matter will be settled up.” Nothing was agreed to, but only something to be done on a future day, and on execution of the papers. There was no new contract to take the place of the old obligation but simply negotiations tending to a settlement, but unexecuted and not accepted in satisfaction of the obligation.

In order to sustain an action on the new promise, there must be a consideration, and it is without consideration unless the old obligation was satisfied and the new one accepted in its place.

The case of Panzerbiter v. Waydell (21 Hun, 161), is in point. Plaintiff had a doubtful claim fora large amount in suit. It was agreed between the parties that defendant should pay plaintiff $150, for a consent of discontinuance and full settlement. Plaintiff tendered such consent of discontinuance, togei her with a release, but defendant refused to pay, and the action was brought on the new promise. Held to be an accord executory, and such an agreement as would be no bar to the original suit, unless the $150 was paid, or the release and discontinuance accepted ; and that as the promise to discontinue w&s not binding on the plaintiff, the new promise was without consideration, and the complaint should have been dismissed. See also, Day v. Roth (18 N. Y. 456).

It is not necessary to examine plaintiff’s requests to charge, which were refused. It is sufficient to say that there was no evidence to show an accord and satisfaction, and consequently there was no error in refusing to charge, as to what was necessary to constitute such a cause of action.

There was no error in the rejection of the receipt, it was entirely immaterial.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    ANN FITZSIMMONS, Appellant, v. MICHAEL CURLEY, Impleaded, &c., Respondent.

      Decided June 16, 1884.
    ' Security for costs, waiver of .

    In order to require plaintiff to give security for costs, it must appear that at the time the action was commenced, he was a person residing without the state (pode, § 3268), or that after the commencement of the action he ceased to be a resident thereof (Code, § 3269).

      Rdd by the court in this case, that neither of these conditions or facts, were proven; also that as defendant proceeded to the trial without making the application, he thereby waived his right to require security.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal from order requiring security for costs.

      Adolphus D. Pape, for appellant

      Starr & Hooker, for respondent.
   Per Curiam.

In order to require the-plaintiff to give security for costs, it must appear, either, first; that she was, when I he action commenced, a person residing without the state (Code, §3268), or second ; that after the commencement of the action the plaintiff ceased to be a resident of the state (§ 3269).

There is no evidence that plaintiff was not at the commencement of this action a resident of this state. Defendant swears that one Johnson told him that plaintiff was living in the state of California, and had been living there for years. Mr. Bennett says that plaintiff resided in this state up to about a year ago, when, he is informed, she left on a visit to Portland, Oregon, and that' she was expected back soon to resume her business as domestic. It thus appears positively that she was a resident of New York when the action was commenced. The only evidence that she has ceased to be a resident since the commencement of the action is the statement of Johnson to defendant. In answer to that, McNeil informed Mr. Bennet that she is expected to return to New York soon, and was away on a visit.

We do not think that it sufficiently appears that plaintiff is a non-resident.

We are also of the opinion that defendant by proceeding with the trial before Judge Freedman, waived his right to the security. So far as appears, he knew all the facts he has stated in his affidavit prior to commencing the trial, and knowing all those facts he proceeded with the trial, and did not make this application until- Judge Freedman had suspended the trial and ordered certain issues to be tried by a jury. It was then too late. Having proceeded with the trial, he had waived his right to require the security (Buckley v. Gutta Percha, &c. Co., 3 Civ. Pro. Rep. 432).

The order should be reversed and motion denied, with $10 costs and disbursements.