text:
    Charles S. Whitney, Respondent, v. Sarah E. Whitney, Appellant.

      Action for divorce — settlement of, issues — hoto waived — right to trial by jury — when a new trial will not be granted — what is reviewable on appeal — motion for postponement —- abuse of discretion.

    In an action for divorce it is necessary that the questions to be tried by a jury be stated, and the parties have a right to have them settled for that purpose; and, where the issues are stated and settled in pursuance of a stipulation of the attorneys for the parties, they respectively waive the right to have, preliminarily to the trial, any more questions specifically stated and settled.
    Although the defendant in an action for divorce is not, as a matter of course, entitled to a bill of particulars, she has, in the outset, the right to have' the issues express the charges of misconduct on her part with a fair degree of particularity, so that she may be apprised of those she is required, to meet.
    Where a case was tried upon the merits and the verdict, upon the main issues tried by the jury, supplemented by the further facts found by the court, was such as to properly lead to the judgment directed and entered, there is no support for the contention that there was a mistrial thereof.
    The trial by a jury of the question of the alleged adultery, in an action for divorce, is a right preserved to the parties by the Constitution.
    In an action for divorce a new trial of the issues will not be granted for other than substantial errors upon the trial.
    In an action for divorce where no motion for a new trial was made, and no direction was given that it be heard, the person against whom the judgment was rendered is in no position to raise, upon an appeal therefrom, any question upon the rulings as to the reception or rejection of evidence at the trial of the issues submitted to the jury, or as to the force or weight of the evidence in support of the verdict.
    A motion made for the postponement of the trial of an action founded upon the alleged ill-health of the defendant, and her inability to attend the trial, is addressed to the discretion of the court, and there is no abuse of its discretion in denying such motion, where the defendant was present and testified as a witness on such trial.
    Apreal by tlie defendant, Sarali E. Whitney, from a judgment of divorce of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 7th day of September, 1889, upon the verdict of a jury after a trial at the Allegany Circuit, with notice of an intention to bring up for review on such appeal an order made at the Allegany Circuit on the 12th day of June, 1889, denying tlie defendant’s motion to postpone tlie trial; and also an order made at said Circuit on tlie 12th day of June, 1889, overruling the defendant’s objections to proceeding with the trial on the ground that the issues had not been properly settled; and also an order made at the Erie County Special Term on the 30th day of July, 1889, overruling the defendant’s objections to the verdict, and to the plaintiff’s application for judgment upon the ground that the issues had never been properly settled ; and also an order entered in said clerk’s office on the 7th day of September, 1889, directing final judgment in favor of the plaintiff.

      George Wadsworth, for the appellant.

      P. B. Richardson, for the respondent.
   Bradley, J.:

The parties were married in January, 1878. This action was commenced in February, 1889. And the plaintiff by his complaint alleges various acts of adultery of the defendant with one Ira H. Myers extending from in the year 1880 into the year 1888. The trial furnished a considerable bulk of testimony. There was no direct evidence of the defendant’s infidelity. The evidence which - tended to support that imputation -was made up of circumstances related by the witnesses on the part of the plaintiff, and if taken as true, was sufficient to warrant the inference and lead to the conclusion that the charge made against her was true, but was not conclusive in that respect. Tlie evidence tending in that direction was contradicted by that of Myers and the defendant, and so far as the facts of that character related by the plaintiff’s witnesses could come within the knowledge of those called on the part of the defendant, they were also contradicted or modified by the latter’s witnesses.

Thus was presented a conflict in the evidence as to the facts material to the main question; and while, as represented by the record, there was an opportunity for the jury, upon the whole evidence to have found that tlie charge against the defendant of marital unfaithfulness was not sustained, the question in that respect was one of fact for the jury, and the evidence was sufficient to support the verdict against her. (Ferguson v. Ferguson, 3 Sandf. 307; Pollock v. Pollock, 71 N. Y. 137.) And it was fairly submitted to them by tlie charge -of the trial court. It is urged by the defendant’s counsel that the issues for the trial were not properly settled and for that reason that the court erred in permitting the trial to proceed. The statute provides for the application to the court for tliepurpose, and that when made the court must cause the issues or questions to be distinctly and plainly stated for trial. (Code Civ. Proc. § 910.)

When the trial was moved on the part of the plaintiff, the defendant’s counsel objected to proceeding to the trial for the reason that the issues to be tried by the jury were not properly settled. The-objection was overruled and exception taken. The ruling of the court had in its support the fact that the attorneys for the parties had some time before made in writing a stipulation that “the issues-to be tried by a jury in the above-entitled action be stated as follows : Whether said defendant is guilty of the adultery charged in the complaint in this action to have been committed with the’ co-respondent-, Ira II. Myers, as therein alleged, and that either-party hereto may apply to the court upon this stipulation and without notice for an order stating and settling the said issues accordingly.” And afterwards, upon the motion on the part of the defendant, an order was made by the court stating and settling the issues-to be tried in accordance with such stipulation. This was the situation when the plaintiff’s counsel moved the action for trial at the Circuit. And it was by reason of such stipulation and order that, the court permitted the trial to proceed. In this there was no error. It was essential to the trial to have the questions to be tried by the jury stated (Code Civ. Proc. § 823), and it was the right of the pai-ties to have them settled for that purpose. (Conderman v. Conderman, 44 Hun, 181.) This the parties, by their attorneys,, did by their stipulation pursuant to which the order was made to-that effect. They thereby waived the right to have preliminarily to the trial any questions more specifically stated and settled. The trial, therefore, was properly permitted to proceed, subject to the-power of the court to state and submit to the jury any further questions of fact which properly or necessarily were for them to determine ; and this was done after the close of the evidence by submitting to them the question whether five years had elapsed since the discovery of the adultery, whether it was committed without the plaintiff’s consent, and whether he had voluntarily cohabited with the defendant since its discovery by him. This was upon the evidence merely a formal proposition to be disposed of by the verdict in the event the jury found that the main charge was sustained. While the defendant was not as matter of course entitled to a bill of qDarticulars, she in the outset had the right to have the issues express the charges of misconduct on her part with a fair degree of particularity so that she might be apprised of those which she was required to meet. ( Wood v. Wood, 2 Paige, 108 ; DeCarrillo v. DeCarrillo, 53 Hun, 359; Strong v. Strong, 1 Abb. [N. S.] 233.) But since the parties, by stipulation and the order thereupon entered, as before mentioned, disposed of this matter, no question arises on this review whether or not the parties would otherwise have been entitled to or obtained a more specific statement of the questions of fact for the jury. In view of the question for the jury so stated, the defendant’s counsel excepted to the charge of the court that it was not necessary to the result to find that all the charges of adultery alleged in the complaint were proved; and that it was sufficient if they found that one or more of them had been sustained. And in answer to the request of the defendant’s counsel to submit the question whether or not the defendant was guilty of the adulteries charged in the complaint as therein alleged, the court said, “You may add to that either or any of them.” The defendant’s counsel excepted. The question as submitted by the court to the jury in respect to the charge of adultery limited their inquiry to the place of residence of the parties. This certainly was not prejudicial to the defendant, and no exception was taken to it.

The view which the plaintiffs counsel sought to urge seems to have been that the form of the issues as stated in the stipulation and preliminary order, was such that it was essential to the, support of the action that the jury find in the affirmative all the charges of adultery alleged in the complaint, which contained fifty numbered specifications or counts of such charges, or that there should have been a finding of the jury upon each charge contained in the complaint. The latter the court was not requested to have the jury do, and the former may be regarded as not within the reasonable import •of the stipulation, as interpreted in view of its purpose in the action. It may be that if so requested the court would have submitted to the jury as many specific questions as to time and place as the-defendant may have desired within the allegations of the complaint.

There is no support for the contention that1 there was a mistrial. The action was tried upon the merits, and the verdict was such upon the main issues tried by the jury supplemented by the further-facts found by the court as to properly lead to the judgment directed and entered. It was otherwise in Manning v. Monaghan (23 N. Y. 539), where there was no sufficient verdict to permit adjudication of a result.

There was in the present case no motion made for a new trial-before the justice there presiding or at the term where the motion for final judgment was made, nor were exceptions directed by such justice to be heard at General Term. For that reason the question arises whether the exceptions taken on the trial are here for review.

The statute provides that in actions triable by the court, when a trial by jury of specific questions of fact is had, an error in the admission or exclusion of evidence, or in any other ruling, may, in the discretion of the court on review, be disregarded, if the court is of the opinion that substantial justice does not require the granting of a new trial. And where the judge who presided at the trial neither-entertains a motion for a new trial, nor directs exceptions to be heard at the General Term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the-remaining issues of fact are tried as the case requires. (Code Civ. Proc. § 1003.)

This is somewhat analogous to the practice before the Code when feigned issues were awarded for trial by jury, and verdicts taken to inform the conscience of the chancellor. The verdict might be adopted or disregarded by him, and a motion for a new trial of the issues was addressed to his discretion. A new trial might not be directed merely on the ground of the reception of improper evidence, or the rejection of that which should properly have been received, if in the view taken by the court the result ought not to have been otherwise than it was. (Apthorp v. Comstock, 2 Paige, 482; Lansing v. Russell, 2 N. Y. 563.)

And in its main features the practice in effect is substantially the same since the Code. (Acker v. Leland, 109 N. Y. 5; Randall v, Randall, 114 id. 499.)

The cases before cited were actions in equity, in which the trial of issues by jury is not a matter of right, but is wholly within the discretion of the court.

The trial by jury of the question of the alleged adultery in the present action was a right of the parties, preserved to them by the ■Constitution. (Conderman v. Conderman, 44 Hun, 181.)

And the statute is such case provides the manner in which the issues awarded shall be presented for trial, and further, that “ the (Subsequent proceedings are the same as where questions arising upon the issues are stated for trial by a jury in a case where neither party can, as of right, require such a trial, except that the finding of the jury upon such questions so stated is conclusive in the action, unless the verdict is set aside or a new trial is granted.” (Code Civ. Proc. § 970.) It may be observed that by this statutory provision, with the qualification in respect to the legal effect of the verdict, the practice following it is substantially the same as that relating to feigned issues tried by jury in other cases.

Such was .the rule of practice in suits for divorce before the Code. (Mulock v. Mulock, 1 Edw. Ch. 14.) And now, in such case, a new trial of the issues so awarded will not be granted for other than substantial errors upon the trial. (Forrest v. Forrest, 25 N. Y. 501, 510 ; Vermilyea v. Palmer, 52 id. 471; Foote v. Beecher, 78 id. 155, 157.)

• And as regards the review of trials of such specific issues awarded Tor trial by jury, preliminarily to the final trial, determination and ■disposition of the other and entire issues by the court, the practice as it formerly existed in Chancery is substantially preserved, and ■declared by the provisions of the Code before referred to, and with the qualification before mentioned, and that contained in section 1003 of the Code is the same in all cases where feigned issues are tried by jury. And in such case as the trial is a preliminary one to the final hearing and determination of the action, which is made by the decision of the court, a motion for a new trial of such feigned issues can in the first instance be made only before the judge who presided at the trial or at the term when the motion for final judgment is made, or the remaining issues of fact are tried, unless the judge directs that the exceptions be heard at General Term. (Code Civ. Proe. § 10.03.) And in case the motion is not so made or directed to be heard the party to whom the verdict is adverse is, by the practice prescribed in such case, deemed to have acquiesced in the verdict upon such issues. (Ward v. Warren, 15 Hun, 600; Chapin v. Thompson, 80 N. Y. 275, reversing 18 Hun, 446; 23 id. 12, 15; 89 N. Y. 270, 274.)

As no such motion for a new trial was made or such direction given for it to be heard, the defendant is in no position to raise here, as. against the verdict of the jury, any question upon the rulings in the reception or rejection of evidence at the trial of the issues submitted to them, or as to the force or weight of the evidence in support of the verdict.

Nevertheless a careful examination of the evidence and of the exceptions taken by the defendant to the rulings upon the admissibility of evidence on the trial before the jury, leads to the conclusion that there was no error in that respect prejudicial to the defendant. At the time the issues were moved for trial before the jury, the defendant’s counsel, upon affidavits, moved for a postponement of the trial, founded upon the alleged fact that she was in ill-health and unable to attend the trial at that time. This motion was addressed to the discretion of the court and was denied. The defendant was present and testified as a witness on the trial. We think there was no such abuse of the discretion of the court in the denial of the motion as to require or justify relief on this review. (Borley v. Wheeler & W. Mfg. Co., 34 N. Y. St. Repr. 987.)

No further question seems to require the expression of consideration.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    Daniel B. Wesson, Suing for the Benefit of Himself and Other Creditors, etc., of George D. Chapman, as Receiver, v. George D. Chapman, as Receiver of the Lackawanna and Pittsburgh Railroad Company, and Others. In the Matter of the Claim of R. Floyd Clarke, as Assignee for the Benefit of Creditors of Bouden & Jenkins and Collin, Bouden & Jenkins, Appellant, v. George D. Chapman, as Receiver of the Lackawanna and Pittsburgh Railroad Company, Respondent.

      Judicial sede — inadequacy of price — offer to give a larger price — motion to set aside the sale — laches — sale sidy eat to receivers certificates — public interests considered.

    The mere inadequacy of price is not a sufficient ground to set aside a judicial sale of real estate, unless it be so great as to shock tlie conscience of the court and raise the inference of unfairness or fraud, or unless there are circumstances of mistake or surprise, and a resale will not be ordered as a general rule upon, an offer to increase the price brought at the sale, without the support of some special circumstances.
    Where a person knowing that real estate was to be sold by virtue of á judgment, took no action whatever to have it bring any larger sum than it was sold for, and gave no attention to the matter, he is not free from the imputation of laches. upon a motion made by him to set such sale aside.
    Certificates issued by the receiver of a railroad provided that, if on a sale of the property and franchises of the company they should not produce sufficient to pay the outstanding certificates, the purchaser should assume such certificates..

      Held, that this provision did not apply to a sale under the certificates themselves.
    What public interest should be considered in setting aside a sale of a railroad.
    Appeal by R. Floyd Clarke, as assignee for the benefit of creditors of Bouden & Jenkins and Collin, Bouden & Jenkins, from an order of tlie Supreme Court, made at the Erie County Special Term and entered in the office of the clerk of the county of Erie on the 19th day of October, 1892, confirming the referee’s report of sale, and also from an order of the Supreme Court, made at the Erie County Special Term and entered in said clerk’s office on the 19th day of October,'1892, denying his motion to vacate and set aside the sale had in the action, and for further relief.
    The history of the railroad company in question has- not been financially fortunate.

      In December, 1884, tlie Lackawanna and Pittsburgh Bailroad Company was operating a narrow gauge road from Olean to Angelica, and a standard gauge railroad from Belfast Junction to Perkins-ville. It was formed by the consolidation of the Alleghany Central Bailroad Company and the Lackawanna and Pittsburgh Bailroad Company.
    Prior to that consolidation the Alleghany Central Bailroad Company issued its mortgage bonds amounting to $600,000, which were then outstanding. And the Lackawanna and Pittsburgh Bailroad Company had issued its mortgage bonds to the amount of $1,600,000. After the consolidation it, by supplemental mortgage, secured the bonds. This was the situation when, in December, 1S84, the People commenced suit against the company to dissolve the corporation, and Chapman was appointed receiver. By order of the court, made in January, 1885, the receiver was authorized to issue his certificates to the amount of $100,000, to become the first lien upon the Lackawanna and Pittsburgh railroad property and franchises, lie issued certificates and sold ten of them of $1,000 each, $ 10,000, to the plaintiff Wesson. Afterwards, in February, 1886, the receiver was authorized to issue his notes to the amount of $50,000, also to be a lien jirior to the mortgage bonds on the railroad property. He did issue $45,000 of notes. lie ran the railroad until September, 1888. In the meantime, Barse, the holder of some of the mortgage bonds of the Alleghany Central Bailroad Company, commenced an action to foreclose the mortgage (on refusal of the mortgagee to bring it). And the Mercantile Trust Company, the trustee to which the mortgage was made, commenced an action to foreclose the mortgage of the Lackawanna and Pittsburgh Bailroad Company. Chapman was appointed receiver. Decrees were entered in those actions, and sales in execution of them were afterwards, and in April, 1889, made of the property and franchises of the original companies and were purchased by a committed for reorganization, which was perfected and the property conveyed to the Lackawanna and Southwestern Bailroad Company. This also embraced the Boehester, Hornellsville and Pittsburgh railroad. The Lackawanna and Southwestern Bailroad Oonrpany issued $800,000 bonds secured by its mortgage, of which $540,000 went to the Central Construction Company for certain specified purposes. The construction company operated the railroad from August, 1889, to April, 1890, and the Lackawanna and Southwestern Railroad Company thereafter until in June following. The receiver’s certificates and notes outstanding remained a prior lien upon what was the property of the Lackawanna and Pittsburgh Railroad Company. And the Wesson action was brought to foreclose such prior lien, and for judgment directing sale of the property to pay, with the proceeds, the certificates and notes, or so much of them pro rata as such proceeds would satisfy.
    He recovered judgment accordingly, and on September 24, 1892, a sale pursuant to it was made to John Byrne for $15,000.

      Clarice & Gul/oer, for the appellant.

      William L. Ma/roy, for the respondent.
   Bradley, J.:

The motion to vacate or modify the judgment is founded upon the charge that it, as entered, did not afford to the holders of the receiver’s certificates and notes the benefit to which they were entitled. As has been observed, the orders pursuant to which they were issued gave them priority over the mortgage bonds previously issued, and that priority continued.. This is not questioned. The certificates contained a provision that in case of a sale of the property and franchises of the railroad company by judicial proceedings or otherwise, and it should not realize sufficient to pay the full amount of the certificates then outstanding, the purchaser should assume such certificates. In each of the receiver’s notes was a similar provision. No provision to that effect was in the judgment pursuant to -which the sale in question was made. The decree directed that out of the proceeds of the sale the referee pay first the costs, fees and expenses of the suit, and next the receiver’s certificates and notes, or so much of them as the residue of the proceeds would pay.

The orders authorizing the issue of the certificates and notes, so far as appears, did not contain any such direction, and whatever force it had was given by the certificates and notes themselves.

It probably was not contemplated when they were made that any judicial proceeding for the sale of the property would be founded upon them, but that it might be taken for that purpose upon the mortgages, and such provision may have been put into the certificates and notes to emphasize their priority and to protect them from sacrifice in such a proceeding. In other words, that they should remain a charge uqion the property against any purchaser at a judicial sale founded upon any junior lien. They were so recognized in the decrees in foreclosure, upon which sales had been made, and in the reorganization provision was made for their payment.

This action Avas brought by the plaintiff not only for the benefit of himself, but of all other creditors of the receiver to enforce the lien of the certificates and notes, and for the purpose of realizing for their payment such proceeds as the sale Avould produce. It is difficult to see that the provision for assumption of them by the purchaser is applicable to an action and sale for such purpose.

The object of the proceeding AAras to vest a title in the purchaser free from the lien of those instruments. It Avould certainly be remarkable to suppose that it Avas within their contemplation that a purchaser at a judicial sale to foreclose the lien of the notes and the certificates Avould take the property subject to, or assume them in case there Avas, a deficiency of proceeds to pay those obligations.

Nor is it reasonably supposable that the foreclosure of such lien could effectually be had if the property failed to produce sufficient proceeds to pay them in full. And it Avould not be practicable to bid in the property for all the holders of the certificates and notes, as some might not assent to take such relation to it, and if they should it might embarrass the future use of the railroad property and franchise for the most desirable purposes or for such as the public interest might require. Those are some of the reasons AArhy the assumption provisions of those instruments do not seem applicable to a judgment in an action to foreclose the lien of them. And further, it is represented by affidavit in opposition to the motion that the appellant Clarke appeared before the referee, was advised of the complaint, the proceedings and judgment, and no question was raised in respect to the judgment. It is also quite evident from Avliat appears in the papers that the property could not have been sold for an amount equal to that of the certificates and notes outstanding.

In the vieAV taken the order denying motion to set aside or modify the judgment should be affirmed. In support of the motion to set aside the sale and for a resale the appellant alleges that it was made for a price grossly inadequate and attended with circumstances of surprise. Mere inadequacy of price is not a ground for- such relief unless it be so great as to shock the conscience of the court, and raise the inference of unfairness or fraud or unless there are circumstances of mistake or surprise. (O'Donnell v. Lindsay, 7 J. & S. 523; Kellogg v. Howell, 62 Barb. 280; Gould v. Gager, 18 Abb. 32; Tripp v. Cook, 26 Wend. 143; Am. Ins. Co. v. Oakley, 9 Paige, 259.)

The amount for which the sale was made appears quite small for a railroad, but it appears that most of the time of its operation it had been run at a loss; and the affidavits in opposition to the motion tend to show that its value was in the old iron and steel to be taken and sold as such.

The only offer in the moving papers to pay a larger price on resale is made in the affidavit of Mr. Post, who says he will bid and give for the property, “ if the same be sold by judicial sale free and clear of all incumbrance, the sum of thirty thousand dollars.” This may, therefore, be deemed the up price for which it would sell on a resale.

The general rule is such that a resale will not be ordered upon an offer to increase the price without the support of some special circumstances in aid of it. (Lefevre v. Laraway, 22 Barb. 167-173.)

The sale was advertised for September 23, 1892, at ten a. m. Shortly before that time an order made by Mr. Justice Beach was served upon the referee in terms staying the sale until a future day, when the plaintiff was required to show cause why it should not be further stayed during the pendency of the appeal from the judgment.

The sale was held open until twelve-thirty p. m. the next day. In the meantime the order was vacated by the justice who made it for irregularity, in that it was obtained without the notice required by rule 67. And the sale was then made. The order seems to have been obtained upon application in behalf of the Central Trust Company of New York. The appellant Clarke was absent on vacation, and it does not appear that he knew anything of the order at the time it was obtained or vacated, nor does it appear that any person was deterred from being present at the sale by reason of the order, although Mr. Clarke in his petition states his belief that persons neglected to attend the sale to bid by reason of the order and its vacation.

The offer made to bid double the amount for which the property was sold, in view of the other circumstances before referred to, lias some force upon the application for a resale, and if it could be granted without prejudice would be entitled to grave consideration upon the question. It may be observed that the certificates and notes outstanding with interest at the time of the sale amounted to $151,241.49, of which the purchaser held $135,562.63, leaving only $15,678.86 held by others.

The claim of the appellant Clarke in them then amounted to $1,699.60. The costs and expenses of the action which the referee was, by the decree, directed to pay from the proceeds amounted to $7,485.43. If there should be a resale of the property for $30,000 the appellant would receive only about $160 more than he is entitled to from the proceeds of the sale already had, and it appears that the expenses of a resale would exceed that sum. In view of that fact, but little benefit would result to him from it, and the prejudice to the present purchaser as well as to the public might be considerable, as he states a purpose to have the road equipped and extended at considerable expense, and that a resale would have the effect to delay the work, and, as stated by him, he apprehends would render it difficult or practically impossible to raise the funds upon the plan already-devised to rebuild, equip and extend the railroad as is contemplated. Many of the business men on the line of the road, by .affidavit, express their confidence in the persons interested in the purchase and in tlieir purpose to put the road in operation, and that the people there will assist them in accomplishing it. There seems, therefore, a public interest which may not be entirely overlooked in view of the fact that an inconsiderable benefit only would likely result to the appellant from a resale of the property. Then he is not free from the imputation of laches. lie, knowing that the property was to be sold by virtue of the judgment, took no action whatever, so far as appears, to seek to have it bring any larger sum than it was sold for, and in fact gave no attention to the matter.

There were several persons present at the sale and eight different bids made when the highest one was reached. The sale seems to have been fairly conducted by the referee, and it is stated in the affidavits that the purchase was made in the name of the purchaser in good faith and for the purpose on his part and that of his associates of putting the railroad in operation. Upon all the facts as represented in the papers on which the motion was heard and to which it is deemed unnecessary to further refer, we think the disposition of it as made at Special Term was- fairly justified.

The orders appealed from should be affirmed, without costs.

•Dwight, P. J\, Lewis and Haight, JJ., concurred.

Orders appealed from affirmed.


text:
    Floyd C. Shepard and Others, Appellants, v. Watson C. Squire and Another, Respondents.

      Place of trial — the right to a change thereof on the ground of residence, is absolute — demand made after service of an amended complaint — non-resident defendants.

    An action must be tried in the county in which one of tlie parties resided at the time of the commencement thereof, and where the summons in an action designated the county of Monroe, in which none of the parties resided, as the place of trial, and two of the plaintiffs resided in the county of Herkimer, the place of trial should be changed from the countjr of Monroe to the county of Herkimer, upon proper demand, and the fact that the defendants were nonresidents of the State does not deny to them the benefit of the statute providing for the change of the place of trial of the action to a proper county.
    The right to change the place of trial of an action to the proper county is absolute when the proceedings to accomplish it are duly taken and pursued.
    When an amended complaint is served it becomes the only complaint in the action as effectually as if no other had preceded it, and for the purpose of proceedings to require a change of the place of trial the defendants in an1 action are at liberty to so treat it, and a demand made before answering it for a change of ' the place of trial to the proper county is effectual to support a motion made in due time thereafter.
    Appeal by the plaintiffs, Eloyd O. Shepard and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th day of December, 1893, granting the defendants’ motion to change the place of trial from the county of Monroe to the county of Herkimer.

      The action was commenced by the service of the summons May 8, 1893. The complaint was served by mail upon the ■ defendants’ attorney June twenty-second and their answer was served July twentieth. Before answering, and on July fifth, a written demand was served that the place of trial be changed from Monroe county, which was that designated in the complaint, to Ilerkimer county. On July twentieth, with the answer, the defendants’ attorney served upon the plaintiffs’ attorney another like written demand for change of the place of trial; and on July twenty-first they served affidavits and notice of motion, to be made at Monroe Special Term of July thirty-first for change of the place of trial. The motion was then heard founded upon the first demand, and was denied in September as prematurely made, with leave to renew. Before the decision of the motion, and on August eighteenth, the defendants’ attorney served other affidavits and notice of motion to be heard at Monroe Special Term of September eleventh, founded upon the second demand. An amended complaint was served on the defendants’ attorney August twenty-fifth, and thereupon, before- the time for answering the amended complaint expired, the defendants’ attorney served the plaintiffs’ attorney with another and like written demand for change of the place of trial, withdrew the second motion sp noticed, and served other affidavits and notice of motion founded upon the third demand for Monroe Special Term of October 30, 1893.
    The motion was there heard and granted. And from the order made thereon the plaintiffs appeal.

      John Vccn VborAis, for the appellants.

      A. M. Mills, for the respondents.
   Bradley, J.:

The defendants were at the time of the commencement of the action and are residents of the State of Washington. The subject of the action is land situated in that State. The plaintiff King is and has for several years been a resident of the State of Minnesota. The place of residence of the other plaintiffs is Ilion in the county of Herkimer, N. Y. This action comes within those to which is applicable the statute which provides that an action must be tried in the county in which one of the parties resided at the time of the commencement thereof.” (Code Civ. Proc. § 984.) And because none of the parties resided in the county of Monroe, and two of the plaintiffs then resided in the county of Herkimer, the demand for the change to the latter as the proper county was made. .

The defendants’ attorney not being served with written consent thereto, gave within due time notice of motion founded upon his third demand for such change of the place of trial.

The fact that the defendants were non-residents of the State does not deny to them the benefit of the statute referred to for the purpose of proceeding in the manner so provided for changing the place of trial to the proper county.

Nor are the words “ one of the parties ” in section 984 entitled to such construction as to necessarily embrace all the plaintiffs or all the defendants, when they respectively consist of more than one person. In that case each one of the persons is a party plaintiff or defendant, and the import of the language used is, in view of its pulpóse, the same as if it read that amaction must be tried in the county in which one of the persons, who is a party, resided. Although the phraseology of the section differs somewhat from that of section 135 of the prior Code, no material change in its meaning was intended as appears by Tliroop’s notes, and its appiarent effect is no different. The right to the change of the pilace of trial to the piroper county is absolute when the piroceedings to accomplish it are duly taken and pursued. But it is urged on thepiart of the plaintiffs that the third demand did not constitute a basis in supipiortof the motion, because it was served before the defendants answered the amended complaint and after the answer to the original complaint. It is conceded that they may have effectually served a demand with the answer to the amended compilaint. It may be observed that when it was served the amended one became the only compilaint in the action as effectually as if none had preceded it, and for the piuipose of proceeding to require and obtain a change of the pilace of trial the defendants were at liberty to so treat it. The demand made before answering it was, therefore, effectual to supipiort their motion made in due time thereafter.

In Penniman v. F. & W. Co. (133 N. Y. 442) the demand served with an amended answer to the compilaint was held sufficient basis for a motion like the one in question. That case does not aid the plaintiffs.

Here the amended one was the complaint, within the meaning of the statute referred to, and before answering as well as with it the defendants may properly have demanded the change of the place of trial.

There was no waiver by any proceedings taken prior to the service of this demand of the right of the defendants to proceed upon it. They had before the service of the amended complaint persistently sought to obtain the change. It is difficult to see that one such demand would be waived by another of like character preceding or following it.

In the present case the proceeding was instituted by a demand permitted and authorized by the service of the amended complaint, and the motion was properly granted.

The.order should be affirmed.

Dwight, P. J., Lewis and IIaight, JL, concurred.

Order granting motion to change place of trial appealed from affirmed, with ten dollars costs and disbursements.


text:
    George W. Thomas, Appellant and Respondent, v. The Grand View Beach Railroad Company, Respondent and Appellant.

      Court of equity — adequate remedy at law — injunctive relief — action for trespass — when ejectment is the proper remedy — -when the defense of an adequate remedy at laio must he pleaded.

    The general rule is that a court of equity will not entertain jurisdiction when the objection is property raised in a case that there is an adequate remedy at law. There are, however, exceptions to such rule within which are cases where equitable relief is necessary to prevent irreparable injury or the multiplicity of suits.
    A case in which a party could maintain an action of trespass against the defendant to recover damages sustained up to the time of the commencement of such action, and where the defendant might persist in continuing the trespass, and the plaintiff might be required for his indemnity to bring actions from time to time, presents, in the absence of some other adequate and ample remedy at law, a proper case'for the exercise of equitable jurisdiction, under which complete relief could be awarded between the parties as justice might require.
    Where a railroad corporation lias possession of land upon which its road was constructed in the usual manner, the owner of such land ma.y maintain an action of ejectment to recover the possession of his land so appropriated, and in such action the plaintiff will, on recovering judgment for possession, be entitled to recover damages for withholding the property, and the rents and profits or value of the use and occupation, by inserting proper allegations for that purpose in the complaint, and in such case an equity action for injunctive relief is not maintainable.
    In an equity action it is unnecessary to plead as- a defense that the plaintiff has an adequate and complete remedy at law, where there is no support for equitable relief in the facts alleged, but, in a case where it is within the power of the court to grant equitable relief upon the facts alleged in the complaint and proved upon the trial, the fact that the plaintiff has an adequate remedy at law is a defense which must be pleaded to enable the defendant effectually to raise the objection.
    Cross-appeals by the plaintiff, George W. Thomas, and the defendant, The Grand View Beach Railroad Company, from portions of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the lltli day of August, 1893, upon the decision of the court after a trial at the Monroe County Special Term.
    The plaintiff alleged that the defendant unlawfully constructed its railroad upon his land, and has since run its cars .upon it. The action is brought to restrain the defendant from maintaining and opei’ating its railroad upon plaintiff’s land, and for damages.

      John Desmond, for the plaintiff.

      John D. Lynn, for the defendant.
   Bradley, J.:

The facts, as found by the court, are that in April, 1891, the defendant went upon the plaintiff’s premises and there constructed its electric railroad without the consent of the plaintiff; that in May following the defendant began and has since continued the operation of the railroad by running a motor car and one or two cars attached thereto, and that it will continue to do so unless compelled to desist therefrom. These findings of fact were warranted by the evidence, and as conclusions of law the court determined that the entry of the defendant upon the plaintiff’s land was unlawful; that for the injuries occasioned by such entry, use and occupation of it by the defendant, the plaintiff has an adequate remedy at law, and, therefore, is not entitled to maintain his action for injunctive relief, and that the complaint should be dismissed unless the plaintiff so amends his complaint as to convert the action into one for relief at law. This the plaintiff did not elect to do. And judgment, dismissing the complaint, was entered, as directed. The general rule is that a coui't of equity will not entertain jurisdiction when the question is properly raised in a case where there is" an adequate remedy at law. There are, however, to this rule, some exceptions, within which are cases where equitable relief is necessary to prevent irreparable injury or the multiplicity of suits. (McHenry v. Jewett, 90 N. Y. 58; Thomas v. M. M. P. Union, 121 id. 45; Corning v. Troy I. & N. Factory, 40 id. 191; Wheelock v. Noonan, 108 id. 179.)

The inquiry is whether or not the plaintiff’s case comes within the exception. He could maintain action of trespass against the defendant to recover damages sustained up'to the time of its commencement, but the trespass would be continued if the defendant persisted in thereafter maintaining and operating its railroad there, and the-plaintiff, for his indemnity, might be required to bring suits from time to time. Such was the situation in Wheelock v. Noonan (supra).

In such case, 'unless there be some other adequate and ample remedy at law, it would be a proper one for the exercise of equitable jurisdiction where complete relief could be awarded, as justice between the parties should require. (Lynch v. M. E. Ry. Co., 129 N. Y. 274.) The railroad in question was constructed of ties, in the-usual manner, and for the purpose of its use and operation the defendant had the possession of the land on which it was constructed. The plaintiff, therefore, may maintain ejectment to-recover the possession of his land so appropriated. (Carpenter v. Oswego & S. R. R. Co., 24 N. Y. 656 ; Wager v. Troy Union R. R. Co., 25 id. 526.) And in such action the plaintiff would, on recovery, be entitled to recover damages for withholding the property and the rents and profits or value of the use and occupation, formerly known as mesne profits (Code Civ. Proc. §§ 1496, 1497, 1531), by inserting proper allegations for tlie purpose in tlie complaint. (Larned v. Hudson, 57 N. Y. 151; Clason v. Baldwin, 56 Hun, 326; Wallace v. Berdell, 101 N. Y. 13.) Whatever the fact maybe in that respect it does not appear that the plaintiff has suffered any damages by the entry and use made of the premises by the defendant, other than such as might be recovered in an action of ejectment.

In Henderson v. W. Y. C. R. R. Co. (78 N. Y. 423), -which was an action in equity, damages for injuries resulting to the plaintiff’s property outside of thé premises upon which the railroad was constructed were included in those claimed to have been suffered by him for reasons there alleged.

And in Lynch v. M. E. Ry. Co. (129 N. Y. 274) was the like claim for damages, and it may be supposed that the plaintiff there had no title in the fee of the street, where the railroad was constructed. But his easements having relation to his ad jacent premises interfered with by the construction and operation of the elevated railroad were those of light, air and access, and thus the beneficial use of liis premises was impaired and their value depreciated.

If it be assumed that the plaintiff had an adequate and complete remedy at law by action of ejectment, the further question arises whether the objection was so raised as to make it available to the defendant. It is of course unnecessary to plead it as a defense in a case where there is no support for equitable relief in the facts alleged. (Hawes v. Dobbs, 137 N. Y. 465-470.) In the present case it was within the power of the court to grant equitable relief upon the facts alleged in the complaint and proved on the trial. And in such case the rule seems now well settled that tlie fact that tlie plaintiff has an adequate remedy at law is a defense which must be pleaded to enable the defendant effectually to raise the objection. (Town of Mentz v. Cook, 108 N. Y. 504; Ostrander v. Weber, 114 id. 95; B. S. & C. Co. v. D., L. & W. R. R. Co., 130 id. 152; Watts v. Adler, Id. 646; Williamsburgh S. Bank v. Town of Solon, 136 id. 465-474; Dudley v. Congregation, etc., 138 id. 451-460; Center v. Weed, 63 Hun, 560-563; Weaver v. Haviland, 68 id. 376-381; O’Brien v. McCarthy, 71 id. 427.)

This was not done by the answer.

The trial court was permitted by the evidence to find as it did the fact in support of that portion of the judgment from which the defendant’s appeal was taken.

The judgment should be reversed and a new trial granted, costs-to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from reversed and new trial granted, with costs to abide the final award of costs.


author: Haight, J.:

text:
    Walter H. Smith, as Trustee, etc., Respondent, v. Ingham University, Appellant, Impleaded, etc.

      Appeal — not dismissed because of a failure to sene a case and exceptions — General Rules of Practice 33, 35 and 40 —power of the Special Term to open a default and to extend the time within which to sene a case.

    An appeal cannot be dismissed on account of tlie failure of the appellant to serve-a case and exceptions within the time prescribed therefor; the only effect of such omission is to leave the party to argue his.appeal on the judgment roll.
    In determining the question of waiver under rule 33 of the general rules of practice, the practice prescribed by rule 35 thereof is adopted.
    If an appellant fails to serve his case or have it settled, signed or filed within the time prescribed by the rules, the respondent may apply, on notice to the Special Term, to have the ease declared waived or abandoned, in accordance with the provisions of rules 33 and 35 of the general rules of practice, and if the-Special Term grants the motion the appellant may still have his appeal heard upon the judgment roll, by causing the papers to be printed and served in accordance with the provisions of general rule No. 40.
    After the entry of an order declaring a case and exceptions waived or abandoned, the respondent may notice the case for argument, and place it upon the calendar, and if the appellant neglects to serve upon the respondent the papers upon which the appeal is to be heard within the time prescribed, the respondent may move on affidavit and on four days’ notice of motion that the case be struck from the calendar, and that judgment be rendered in his favor.
    A Special Term has power to excuse and open defaults, and to extend the time • to make and serve a case, or a case containing exceptions, and all motions of such character should be made at Special Term.
    Motion by the plaintiff and respondent to strike the case from the calendar of the General Term of the Supreme Court and for affirmance on the ground of the non-service of printed papers, made on the 28th day of March, 1894.

      The moving affidavits showed that the printed papers had not been served, but failed to show that an order had been .obtained declaring the case abandoned.

      Raines Bros., for the appellant.

      Bowen dé Washburn, for the respondent.
   Haight, J.:

So much confusion exists with reference to the disposing of appeals in this court on account of the delay in the prosecution thereof, that we have thought it wise to restate the practice.

An appeal cannot be dismissed on account of the failure of the appellant to serve a case and exceptions within the time prescribed therefor; the only effect of such omission is to leave the party to argue his appeal on the judgment roll. (Schwarz v. Weber, 103 N. Y. 658; Burger v. Dubernet, 7 Robt. 1; Brown v. Hardie, 5 id. 678; Rankin v. Pine, 4 Abb. 309.)

Rule 33 provides that “ If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto; and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, and the other to notify an appearance before the justice, surrogate or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed.”

Rule 35 provides that “ Where a party makes a case or exceptions he shall procure the same to be filed within ten days after the same shall be settled, signed and ordered to be filed, or it shall be deemed abandoned unless the time is extended by order. * * *

“ And on filing affidavit that such case or exceptions has not been filed and showing the time of the settlement thereof, and the date of such order, and that more than ten days have elapsed from the time of such order, or from the expiration of the time to which it was extended, an order, of course, may be entered declaring the same abandoned and the party may proceed as if no case or exceptions had been made.”

It will be observed that under rule 33, if the party shall omit to make a case within the time limited, he shall be deemed to have waived bis right thereto. And that under rule 35, if he omit to hie the case when settled within the time limited, he shall be deemed to have abandoned it. As to the former the rule does not point out how the waiver is to be determined, but in the latter the rule ’specifically provides how the question of abandonment shall be established. No reason is apparent why the practice provided for the determination of the question in one case should not prevail in the other. ' The courts have consequently adopted the practice prescribed by rule 35 in determining the question of waiver under rule 33. (Carraher v. Carraher, 42 How. Pr. 458; Phelps v. Swan, 2 Sweeny, 696; Ward v. The Central Park, North & East River R. R. Co., Id. 701; Affirmance on default, 36 How. Pr. 366; Sun Mut. Ins. Co. v. Dwight, 1 Hilt. 50.)

Rule 40 provides that Enumerated motions shall be noticed for the first day of the term by either party on a notice of eight days. * * * the party whose duty it is to furnish the papers shall serve a copy on the opposite party, except upon trial of issues of law, at least eight days before the time for which the matter may be noticed for ai’gument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and on four days’ notice of motion, that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor.”

The practice, therefore, is if the appellant fails to serve his case, or have it settled, signed or filed within the time prescribed by the rules, the respondent may apply, on notice, to the Special Term to have the case declared waived or abandoned in accordance with the provisions of rules 33 and 35. If the Special Term grants the motion, the appellant may still have his appeal heard upon the judgment roll by causing the papers to be printed and served in accordance with the provisions of rule 40. After the entry of an order declaring the case and exceptions waived or abandoned, the respondent may notice the case for argument and place it upon the caleiq dar, and if the appellant neglects to serve upon the respondent the papers upon which the appeal is to be heard within the time prescribed, the respondent may move, on affidavit and on four days’ notice of motion, that the case be struck from the calendar and that judgment be rendered in his favor.

Note.— The rest of the cases of this term will he found in the next volume (77) Hun.— [Rep.

In tbe city of New York it lias been the practice to require the respondent to apply to the court', or a judge thereof, for an order to put the case on the calendar in accordance with a special rule to that effect existing in such city. But we have no such rule in this department. We have, however, a special rule which provides that “In every case which is to be brought on for argument upon a case, or a case containing exceptions, the note of issue filed with the clerk shall be accompanied by an affidavit stating that the case has been settled, signed and filed, and specifying the time and place of such filing; otherwise the case shall not be put upon the calendar.” This rule has reference only to causes which are to be heard upon a case, or a case containing exceptions, and has no application to an appeal which is to be heard upon the judgment roll alone. After an order has been entered declaring a case, or a case containing exceptions, waived or abandoned, the cause may be placed upon the calendar, and no affidavit is required to accompany the note of issue.

The Special Term has power to excuse and open defaults, and to extend the time to make and serve a case, or a case containing excej)fions, and all motions of this character should be made in that court.

The motion should be denied, but in this case without costs to either party.

Uwigiit, P. J., Lewis and Bradley, JJ., concurred.

Motion to strike case from the calendar and for affirmance denied, without costs to either party.


text:
    William Bransdorf and Others v. John H. Bransdorf, Impleaded, etc.
   Judgment affirmed for failure to submit papers according to stipulation.


text:
    Alethia Dayton v. Kings County Elevated Railroad Company.
   Affirmed by default.


author: Cullen, J.:

text:
    In the Matter of the Estate of Honora Callaghan, Deceased.
   Order reversed and decree directed to be entered for the payment to appellant of its share of the fund, with costs of this appeal to he paid out of the estate.—

Cullen, J.:

This appeal presents the same question decided by this court in 69 Hun, 161, on an appeal from the same decree taken by other creditors. On the authority of that decision the order appealed from must be reversed and a decreo entered for the payment to appellant of its share of the fund, with costs of this aopeal to be paid out of the estate.

Dykman, J., concurred.


author: Dykman, J.:

text:
    Robert Plaut, Respondent, v. Robert L. Moores, and Others, Defendants.
   All three of the orders affirmed, with ten dollars costs and disbursements in one appeal.—

Dykman, J.:

These are three appeals from orders which were made respectively on the 5th, 13th and 21st days of October, 1893. The first order directed the appellant to complete his purchase of certain premises under a sale in foreclosure. The second order directed the cancellation of a notice of lis pendens filed against the property. The third order denied an application to set aside the order of the 13th clay of October, 1893. These appeals are entirely destitute of merit, and the orders should all be affirmed, with ten dollars costs and disbursements on one appeal only.

Pratt, J., concurred.


text:
    Newbold T. Lawrence and Others, Exrs., Appellants, v. The Town of Hempstead, Respondent.
   Reargument ordered. Opinion not to be printed by direction of judge.


text:
    Newman L. Warsawer, Respondent, v. Horace L. Hotchkiss and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

This is an appeal from so much of an order made at the Special Term as relates to the name of the agent of the defendants who gave, to the assignee of the plaintiff the false and fraudulent information alleged in the third paragraph of the complaint. We think the proper disposition of the case was made at the Special Term and that the order should be affirmed, with ten dollars costs and disbursements.

Cullen and Pratt, JJ., concurred.


author: Pratt, J.:

text:
    William Hoffman, Appellant, v. Lawrence Duncan, as Administrator, Respondent.
   Judgment affirmed, with costs.—

Pratt, J.:

This is an appeal from a judgment entered upon a report of a referee. The case really involves only questions of fact. It is true there are a large number of exceptions to rulings made upon the trial, hut I cannot' see that any evidence was excluded or admitted against objection that could have changed the result. Here was an old lady, who had long lived upon the farm, living with her son who carried it on and was engaged in the milk business, and who, so far as appears, did all the business and received and paid out all the money. He and his mother, the deceased, were joint tenants and were probably jointly interested in carrying on the farm, but that the plaintiff looked to the son William for pay for his services and was paid by him seems quite clear from all the facts and circumstances of the case. Whenever either the sou or mother paid any money, it must have been for the accrued wages, and the fact that the plaintiff declared that William, the son, did not owe him anything, furnishes a high degree of proof that nothing was due him at that time for wages. It is highly unreasonable that the intestate ever made a separate contract with the plaintiff for her private benefit, and all the evidence goes to show that plaintiff was almost altogether employed in active work upon the farm and in the milk business. Nothing would be more natural than for an old lady, situated as was the intestate, to ask the hired man to do some little chore or errand about the house, but that does not prove an employment by the intestate. The plaintiff was a mere boy when he went to live on this farm, and his board and clothing was almost a fair compensation for his services for some years thereafter. I think it highly probable that he received his pay from William as he continued to work; indeed, he said William had acted as a father towards him and had paid him in full. At all events, there is not such a. preponderance of evidence in favor of the plaintiff as will warrant us in reversing the judgment. The referee saw the witnesses and heard them testify, and was in a situation to judge of their credibility better than an appellate court. Assuming that plaintiff was employed by them jointly, I think the fair inference from the proofs is that he was paid in full for all services rendered by him. After a careful reading-of the whole case, we are constrained to believe the decision of the referee was right and must be affirmed, with costs.

Cullen and Dykman, JJ., concurred.


text:
    Henry Berean, Appellant, v. Daniel O’Connell, Respondent.
   Reorgument ordered; no opinion.


text:
    Daniel McCampbell, Respondent, v. Cunard Steamship Company, Limited, Appellant.
   Judgment and order denying new trial affirmed, with costs.—

Cullen, J.:

This is an appeal from a judgment for the plaintiff entered on the verdict of a jury. The action was servant against master to recover for personal injuries suffered, owing to the alleged negligence of the defendant. On the first trial of the action, I directed the complaint to be dismissed On appeal, that decision was reversed. (23 N. Y. Supp. 477.) As both my associates concurred in the opinion delivered on appeal, which covers the question now raised, and as. the trial court followed the law laid down by the General Term, it follows that this judgment must be affirmed. Judgment and order' denying new trial affirmed, with costs.

Pratt and Dykman, JJ., concurred.


text:
    Jane J. Davenport, Respondent, v. Brooklyn Elevated R. R. Co., Appellant.
   Judgment and order denying new trial affirmed, with costs.—

Dykman, J.:

This is an appeal from a judgment entered upon the verdict of a jury against the defendant in favor of the plaintiff for $150, and from an order denying the motion for a new trial upon the minutes of the court. The appeal is based upon the exception to the judge’s charge, to the admission of improper testimony and the denial of the motion for a new trial. These cases have now become familiar and we have examined all these questions and And no error. The questions involved were questions of fact for the jury, and the verdict is supported by evidence. The judgment and order should be affirmed, with costs.

Pratt, J. concurred.


author: Per Curiam:

text:
    The People of the State of New York, Respondent, v. Frederick Kunz, Appellant.
   Per Curiam:

A careful examination of the evidence in this case lias failed to disclose any testimony corroborative of the complainant’s story. The conviction rests upon her testimony uncorroborated by other evidence.

The judgment must be reversed and a new trial had.

Present — Brown, P. J., and Pratt, J.


text:
    Carl F. Glocker, Respondent, v. The Spencer Optical Manufacturing Company, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Francisco Wood, Respondent, v. Town of Gilboa, Appellant.
   Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.

Herrick, J., dissenting.

No dissenting opinion.


text:
    Orrin J. David, Respondent, v. Marshall Arnold, Appellant.
   Judgment affirmed, with costs. No opinion.


author: Mayham, P. J.:

text:
    Cornelius A. Barnett, Respondent, v. Augustus L. McCree, Appellant.
   Judgment affirmed, with costs.—

Mayham, P. J.:

Upon the facts found by the learned trial judge, which seem to be supported by the evidence, we think he reached a correct conclusion, and that the judgment should be affirmed upon the opinion at Special Term.

Putnam and Herrick, JJ., concurred.


text:
    Sarah F. Davenport, Appellant, v. The Pennsylvania Fire Insurance Company, Respondent.
   Judgment affirmed, with costs.—

Mayham, P. J.:

We think that the conclusion of the referee in this case was correct and that the judgment should be affirmed.

Putnam and Herrick, JJ., concurred.


text:
    The Central National Bank of Troy, Respondent, v. The Fort Ann Woolen Company, Appellant.
   Order affirmed on opinion of the court below, with ten dollars costs and printing and other disbursements. No opinion.


text:
    Stephen W. Barker, Respondent, v. The Fort Ann Woolen Company and Another, Appellants.
   Order affirmed on opinion of the court below, with ten dollars costs and printing and other disbursements. No opinion.


text:
    The Central National Bank of Troy, Respondent, v. The Fort Ann Woolen Company and Another, Appellants.
   Order affirmed on opinion of the court below, with ten dollars costs and printing and other disbursements. No opinion.


author: Herrick, J.:

text:
    In the Matter of the Application of John K. Pruyn for the Appointment of a Trustee for the Holders of Certain Bonds under a Mortgage Executed by the Saratoga Gas and Electric Company. Two cases
   Order affirmed, with ten dollars costs and printing and other disbursemen ts.—

Herrick, J.:

After a careful review of the facts and authorities in these cases, I can see 110 reason for a reversal of the orders made therein and no occasion t-) write an opinion. The orders should be affirmed, with ten dollars costs and printing and other disbursements in each.

Mayham, P. J., concurred; Putnam, J., not acting.


text:
    Nathan R. Curtis, Respondent, v. The Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. No opinion.

Mayham, P. J.,dissenting.


text:
    Eugene Smith, as Executor, etc., Respondent, v. Frederika Rentz, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    In the Matter of Opening St. Nicholas Terrace; John F. Pentz and Others, Petitioners, Respondents, v. William R. Hutton and Others, Executors, Appellants.
   Order reversed and the case sent back to the referee in order that an apportionment may be made, with costs to appellants to be paid out of the award.—

Per Curiam:

For the reasons assigned in the opinion in the Matter of Opening St. Nicholas Terrace (Ira Shafer, Claimant), herewith decided, 'the order herein should be reversed and tbe case sent back to the referee for the purposes mentioned in that opinion, with costs to appellants to be paid out of the award.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    Amelia Stuyvesant, Respondent, v. The New York Floating Dry Dock Company, Appellant.
   Judgment affirmed, with costs on opinion of referee.


text:
    In the Matter of George W. Cullum.
   Decree affirmed, with costs.


text:
    William C. Kibbee, Respondent, v. William R. Brixey, Appellant.
   Order reversed and motion granted, without costs to either party. The amended answer tendered to be served within five days after notice of order to be entered upon this decision.


text:
    Louis Bauer, Respondent, v. John L. McCauley, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John Storer, Appellant, v. David Jones Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Gustave Heye, as Surviving Executor, etc., Respondent, v. Henry M. Tilford and Others, Appellants.
   Order reversed, without costs, and motion granted upon payment of ten dollars costs, and upon condition that defendant pay the costs of the action which have accrued at the time of the motion, costs to be taxed by the clerk.


text:
    Alexander Chisholm, Appellant, v. Moses P. Prout, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Samuel M. Mitchell, Respondent, v. O’Reilly, Skelly & Fogarty Company, Appellant.
   Judgment and order affirmed, with costs.


text:
    Herman Passavant, Respondent, v. David Gutlohn and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Louis F. Martin and Others, Respondents, v. Eliza J. Adams and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Carroll L. Riker, Respondent, v. Robert G. Dun and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Alfred H. Smith and Others, Respondents, v. Adolph Bernhard and Others, Appellants.
   Order reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.—

Per Curiam:

There is nothing in the cause of action alleged in the complaint showing the necessity for an examination of the books. The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — Van Brunt, P. J., and Follett, J.


text:
    Julius Imgard, Respondent, v. Walter B. Duffy, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Theodore Conkling and Others v. Lissie H. Zerega.
   Motion denied.


text:
    Mary A. Browne, Appellant, v. John M. Baker and Others, Respondents.
   Motion to dismiss appeal granted, with ten dollars costs.


text:
    In the Matter of the Probate of the Will of Augustus Zerega.
   Order affirmed, without costs. No opinion.


text:
    In the Matter of the Broadway and Seventh Avenue R. R. Co. and Others for the Appointment of Commissioners.
   Motion granted.


text:
    Michael Dilworth, Appellant, v. The Mayor, etc., Respondent.
   Judgment affirmed, with costs. No opinion.


author: Follett, J.:

text:
    People of the State of New York, Respondent, v. Henry Gillette, Appellant.
   Judgment reversed and new trial granted.—

Follett, J.:

The defendant was jointly indicted with Charles C. Burt and charged with having stolen, on the 28th of May, 1898, with force and arms, a bracelet of the value of $300 and a Anger ring of the value of $150, the property of the Charity Organization, a domestic corporation. The defendant demanded and received a separate trial and was found guilty. On the date mentioned, the Charity Organization occupied rooms on the third floor of No. 105 East Twenty-second street in the city of New York. At this time the organization had at its rooms on exhibition and for sale a collection of pottery, vases, •crockery, antique jewelry and other articles called the Holly collection. On the day in question, a lady was in charge of the room and the articles therein from about noon until four o’clock in the afternoon when she went home, and the room and its contents were left in the charge of her sister, who continued in control until about six o’clock in the afternoon, the hour for closing, when, as she was placing the jewelry in the safe, she noticed that the bracelet and ring were gone, and she immediately informed the secretary of the society. Shortly after three o’clock in the afternoon, the defendant and Burt entered the room together, examined the pottery and were shown the bracelet and ring. They remained in the room from seven to fifteen minutes and then left without having purchased anything, and walked rapidly through the hall, as one of the witnesses testified. In June (the date not appearing) Gillette and Burt were arrested and taken to the police headquarters, and then to a photograpner, and while in his rooms the defendant •attempted to escape. The bracelet and ring were nsT er found nor traced to the possession •of Gillette or Burt. The fact of the most probative force which tends to criminate the •defendant is his attempt to escape, but this is hardly sufficient to justify the conviction under the circumstances of this case. Between the time when the defendant entered the room and when it was closed, two painters were employed therein and two or three persons entered and left, but the two sisters testified that the jewelry was not again removed from the cases in which it was kept. Without entering into a minute analysis of the testimony, we are of the opinion that it is insufficient to justify a conviction, and that unless further incriminating facts can. he proved, the defendant should be discharged. The judgment should be reversed and a new trial granted.

VanBrunt, P. J., and O’Brien, J., concurred.


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    Joseph Wallach, Appellant, v. Sarah H. Van Schaick, Respondent.
   Judgment affirmed, with costs.

Per Curiam:

This case has not been settled as provided by section 997 of the Code of Civil Procedure, and the certificate of the clerk is insufficient, and as we cannot pass upon the questions sought to be reviewed upon this record the judgment must be affirmed, with costs.

Present — VanBrunt, P. J., O’Brien and Follett, JJ.


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    Maud E. S. Depierris, Appellant, v. Henry B. Slavin and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.—

Per Curiam:

We think that there are subjects of examination pertinent to the cause of action alleged which do not necessarily tend to establish the commission ’ of any criminal offense upon the part of the defendants, and for that reason, there being no other question submitted to us, the order should be affirmed. (Davies v. Fish, 35 Hun, 480.) The order must be affirmed, with ten dollars costs and disbursements.

Present— Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    Manufacturers’ National Bank of New York, Respondent, v. Hezekiah F. Lord and Another, Appellants.
   Judgment affirmed, with costs.


text:
    American Exchange National Bank, Respondent, v. John H. Cheever, Appellant.
   Judgment affirmed, with costs.


text:
    Continental Insurance Company, Respondent, v. Phœnix Insurance Company of Brooklyn, Appellant.
   Judgment affirmed, with costs.


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    Matilda C. Jantzen, Individually and as Executrix, etc., Respondent, v. Helen J. Nelson and Others, Appellants.
   Judgment and order reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event.—

Follett, J.:

On the 22d of October, 1885, the plaintiff executed to Nathaniel S. Smith a bond and mortgage to secure the payment of $1,700 on the 20th of October, 1886, with interest at the rate of six per cent per annum, X^ayahle semi-annually. Tiie mortgage covered the lot at the northeast corner of Second avenue and Sixth street. The mortgagor executed a statement which was annexed to the mortgage, of which the following is a copy:

“ Note for $700, June 10,1885....... $710 58

“Less received for discount........6 00

$704 58

“ Less 2 days’ interest on mortgage, it being dated Oct. 20fell, and transaction closed Oct. 22...... 1 12

$703 46

“Drawing bond and mortgage recording same................. 8 00

$711 46

“Vernam & Co.’s check for........ 918 54

$1,630 00

“ H. A. Nelson's check for......... 70 00

$1,700 00

“ The above is correct.

“Dated Oct. 22,1885.

“MATILDA

It is admitted that this statement is correct, and sets forth the consideration of the bond and mortgage which was furnished by I-Iomer A. Nelson to whom the bond and mortgage were assigned on the day of their date. On the 15th of November, 1890, the plaintiff executed to Homer A. Nelson a boiid and mortgage to secure the payment of $3,875 on the 1st day of January, 1891, with interest, at the rate of four per cent per annum. This mortgage covered the same premises described in the first and no other. Annexed to it is a statement which the plaintiff admits she executed, of which the following is a copy:

“Nov. 15th, 1867, cash loaned...... $1,775 00

“Interest to Nov. 15th, 1890, at 4 per cent per annum................ 213 00

“ Jan. 2d, 1890, cash loaned........ 227 00

“ Cash loaned...................... 1,600 00

“Interest on cash, two items at 4 per cent per annum............ 60 90

$3,875 90

“Bond and mortgage, dated Nov. 15th, 1890, executed for $3,875, to secure the payment of the above, all of which money was loaned to me as executrix, and for the protection of the property of the estate of Joseph Jantzen, deceased.

“Dated.

“MATILDA C. JANTZEN,

“As Executrix and Individually

On the 28th of April, 1891, Homer A. Nelson died leaving a will, which, being contested, the defendants were duly appointed temporary administrators of his estate. After-wards the will was admitted to probate, and on July 2,1891, letters of administration with the will annexed were issued to the defendants. On May 6,1691, both mortgages and the assignment of the first were duly recorded. A controversy arose as to whether both mortgages were outstanding and duo from the plaintiff to the defendants, and tho plaintiff, being desirous of obtaining* a larger loan on the premises, on the 28th of July, 1891, paid both mortgages to the defendants, who at the time executed the following agreement:

“This is to certify the estate of Homer A. Nelson, deceased, have, this 28th 'day of July, 1891, received of MatildaC. Jantzen, individually and as executrix under the last will and testament of Joseph Jantzen, deceased, the sum of six thousand two hundred and seventy-two 13-100 dollars ($6,272.13), in payment and satisfaction of the principal and interest of two certain bonds and mortgages held by said administrators as part of the assets of estate-of said Homer a. Nelson, deceased, viz.:

“Bond and mortgage Oct. 22, 1885, to secure................ $1,700 001

Interest on the same thereof to this date........... 588 20-

$2,28S 20:

“Bond and mortgage Nov.15,1890,tosecure $3,875 00

on same date thereof to this date................ 108 93

$3,983 93 3,983 93'

$6,272 13

“And whereas said Matilda C. Jantzen claims that said first-named bond and mortgage of $1,700.00 has been fully paid and satisfied, the said administrators agree that, upon satisfactory proof to them of such payment of said bond and mortgage, they will repay the sum paid to them as aforesaid, viz.: two thousand two hundred and eighty-eight 20-100 dollars ($2,288.20), to said Matilda C. Jantzen, but without intei’est thereon exceeding the rate of three per cent per annum. (Executed in duplicate.)

“HELEN J.

“Laura nelson,

“BENJAMIN M.

“MATILDA C. JANTZEN,

“Administrators, etc., of H. A, dec'dy by Benjamin M. Fowler

On the 7th of April, 1892, this action was brought to recover $2,288 20, the amount paid on the first mortgage, with interest at the rate of three per cent, pursuant to the stipulation, contained in the foregoing agreement, the plaintiff alleging that the amount secured by the first mortgage formed part of the consideration of the second and was so merged and! paid. To establish this cause of action, the plaintiff offered in evidence the bonds and mortgages and. the agreement of July 28, 1891, and called the person who acted as the stenographer and typewriter of the testator, who testified that the testator dictated to her the second bond and mortgage, at the same time producing the first. She also testified: “I had a. conversation with Judge Nelson the day he dictated this new mortgage; he said to me that he would like to dictate a mortgage, and when I got in there to his desk, he said,s This, is the old mortgage which I want to include in the new mortgage,’ and also stated, ‘I don’t care here nor there, but Mrs. Jantzen wants a mortgage covering —’ He said, ‘ I have advanced her additional money to this old mortgage.’ I didn’t know at that time what the amount of that was, and in dictating this last mortgage he said, ‘This embraces the first mortgage. ’ He gave me the old mortgage to copy from, and gave me in dictation what I made out in the last mortgage, which made a new mortgage embracing the old mortgage in this new one. The new mortgage covered the identical ground covered by the old mortgage, except the date and amount; it covered the same property and embraced the amount of the first mortgage.” This witness testified on cross-examination that she did not know the items which, made up the consideration of the second mortgage, but that the mortgagee told her that the $1,700 was paid by it. This was all the evidence of payment of the first mortgage given on the trial. The defendant asked the court to charge: “I ask your honor to charge the -jury that there is no proof of the payineut of the first mortgage, or any part thereof, pleaded or proven, except by including it in the second mortgage.” This was refused and an exception taken, which was error. Whether the amount secured to be paid by the first mortgage formed part of the consideration of the second and was so paid, was the only; issue; and we think the court erred in refusing to call the attention of the jury to that issue, and in refusing to direct them to •confine their attention to it. The first item in the statement attached to the second mortgaged: "Ñov. 15,1887. Casliloaned, $1,775; interest at 4 per ct. for 3 years, 3313. §1,988.” It was proved and admitted that this item was loaned by the check of Vernam & Co , dated November' 15, 1887, for 81,775, payable to the order of H. A. Nelson, and by him indorsed to the plaintiff. The second item in the statement is: uJan. 2,1890. Cash loaned, $227; interest thereon to date of mortgage, $7.88. $234.88.” A check drawn by Homer A. Nelson, January 2,1890,for this sum, payable to the order and indorsed by the plaintiff was proved. The third item in the statement is: “Cash loaned, $1,600.” It was proved that Homer A. Nelson, on January 14,1890, drew his cheek for $1,600, payable to the order of nnd indorsed by the plaintiff. The interest on this item is $33.50. The interest on the second and third items at four per cent amounts to $61.38, and exceeds by forty cents the amount of $60.90 charged in the statement. The plaintiff admitted on the trial, “We received the $1,700 and the $3,875. We don't deny it.” The interest on the first mortgage from its date to the date of the second mortgage at six per cent amounts to $516.01, making the amount due $2,216.51, which, added to any of the items making up the second mortgage, will not produce its amount. The first bond and mortgage were found among the papers of the testator at bis death. The conclusion which logically follows from these facts, that the first mortgage forms no part of the consideration of the second, was not overcome by the -loose .and unsatisfactory testimony of the stenographer who drew it, and inevitably leads to the belief that the witness misunderstood the remarks of Mr. Nelson. The testator was a lawyer and was dealing with a client who was a woman; and he took great pains to preserve written evidence of the fairness of his transactions with her. We cannot doubt that the verdict in this case was contrary to the evidence, and it and the order should be reversed on the law and the facts and a new trial granted, witli costs to the appellant to abide the event.

Van Brunt, P. J., and O’Brien, J., concurred.


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    First National Bank of Sing Sing, Appellant, v. Schuyler Hamilton and Others, Respondents.
   Judgment affirmed on opinion of referee, with costs.


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    Bowman, Thompson & Co., Limited. Respondent, v. Joseph F. Fuerst and Others, Appellants.
   Order affirmed, with costs.

Per Curiam:

For the reasons expressed in the case of Boioman, Thompson & Co , Ltd., v. Joseph F. Fuerst et aZ., herewith handed down, tbe order appealed from should be affirmed, with costs.

Present — Van Brunt, P. J.j O’Brien and Follett, JJ.


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    David McClure, as Temporary Receiver, etc , v. Louis P. Levy.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Robert O. Babbitt, Appellant, v. William W. Gibbs, Respondent
   Judgment affirmed on referee’s opinion, with costs.


text:
    John C. Wilmerding, Appellant, v. Marshall Field and Others, Respondents.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    Livingston Beekman, as Administrator, Appellant, v. Horn Silver Mining Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Walter C. Stokes and Others, Appellants, v. James M. Waterbury and Others, Respondents.
   Order modified by striking out paragraphs numbered 7, 8, 9 and 10, and affirmed as modified, without costs.


text:
    In the Matter of Sarah N. Guzman.
   Motion denied on payment of ten dollars costs.


text:
    Moses R. Crow and Another, Appellants, v. William E. Coffin and Others, Respondents.
   Motion granted, with ten dollars costs.


text:
    Emil Oelberman, Appellant, v. New York and Northern Railway Company and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements, on opinion of the court below.


text:
    John W. O’Reilly, as Administrator, v. The Mayor, etc., Appellant.
   Judgment affirmed, with costs.


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    The Manhattan Life Insurance Company, Appellant, v. Morris Alexander, Impleaded, Respondent.
   Judgment reversed and new trial ordered, with costs to appellant to abide event.


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    Harriet Cooper and Others, Respondents, v. Caroline Monroe and Another, Appellants.

      Specific performance of a parrol contract for the sale of real estate — action of ejectment — equitable defense — duty of children to take can'e of their pa/rents — a husband’s interest in his wifés real estate does not disqualify him under section 829 of the Code of Givil Procedure.

    The payment of the consideration to the vendor, and the delivery by him of possession of the premises to the vendee, may in some cases, and not in others, be sufficient performance of a contract of sale of real estate to enable the purchaser to invoke the power of a court of equity to decree specific performance, but where the vendee in taking possession of the premises has done any act for which he could not be fully compensated in an action at law, he is entitled to have specific performance of the contract.
    Ordinarily the payment of the consideration, in whole or in part, could be recovered back in an action at law, but in case the vendor has in the meantime become insolvent, or if the Statute of Limitations has run against the vendee’s claim, and the vendee cannot be restored to the same situation that he was in before the agreement, or when he has made improvements and paid taxes in reliance on the parol agreement, equity has power to compel specific performance.
    If the facts are such that equity can afford relief to the defendant in an action, of ej ectment, he may avail himself of the same 'as ah equitable defense thereto.
    It is the duty of children to take care of their aged and indigent parents.
    A husband has not such an interest in the real property of his wife as will disqualify him under section 829 of the Code of Civil Procedure from testifying as a witness in her behalf in regard to the same.
    *The other decisions of this term will be found in 76 Hun.— [Rep.

      To be disqualified from testifying, a person must bave a present, certain and vested interest in tbe real estate in controversy, and not an interest remote, uncertain or contingent.
    Appeal by the defendants, Caroline Monroe and another, from an order of the Supreme Court, made at the Chautauqua Circuit and entered in the office of the clerk of the county of Chautauqua on the 2d day of September, 1893, granting the plaintiffs’ motion for a new trial made upon the minutes.

      S. W. Mason, for the appellant Caroline Monroe.

      A. B. Ottoway, for the appellant Simon Monroe.

      JET. O. Kingsbury, for the respondents.
   Haight, J.:

This action is in ejectment to recover the possession of a house and lot of the value of about $450, in the village of Westfield, known as “ The Exchange.” Henry Walker was the owner of the premises in question. The plaintiffs claim title as devisees under the last will and testament of Walker, which has been duly proved and admitted to probate. The appellant Caroline Monroe claims to be the equitable owner and entitled to retain the possession of the premises; the defendant Simon Monroe is her husband. Henry Walker and Caroline Monroe were brother and sister. The evidence produced upon the trial on the part of the defendants tends to show that in the year 1868 Walker and the defendant Caroline had .a mother who was aged and sick; that Walker then told Caroline that if she would take their mother home with her and take care of her that he would pay her well for it; that she thereupon took her mother to her house and cared for her until the time of her death, which was in the year 18Y4. In May, 1889, the defendants were living in the city of Buffalo, and Walker then agreed with the defendant Caroline to give her the house and lot in question for a home, in payment for what he owed her for taking care of his mother, and wanted her to remove from Buffalo to Westfield, take possession of the house and lot and occupy it as her home; that in June following she did so and has so continued to occupy the same ever since. In May, 1890, Walker executed his last will and testament, in which he first directed the payment of his debts, and then gave, devised and bequeathed “all the rest, residue and remainder of my estate, both real and personal, to my sister Harriet P. Cooper and my nieces Mrs. Lucy Edes and Sarah Cooper, share and share alike.”

In June following he suddenly died from an injury received.

The only evidence offered on behalf of the plaintiffs, aside from the records, was to the effect that Walker had in his lifetime kept the property insured in his own name. The case was submitted to the jury and the verdict was in favor of the defendants.

The trial court ordered a new trial upon the ground that the evidence was not sufficient to sustain the verdict. The reasons stated in the opinion written by the court are as follows: “ To free the case from the operation of the statute it must- appear that the purchaser expended money or made improvements which he would not have done except in reliance upon performance by the seller and to recover for which he is remediless. The payment of the consideration and the simple act of taking possession has been held not to be such a part performance of the contract upon the part of the purchaser as to invoke the power of the equity side of the court to decree specific performance.” (Citing Lowry v. Tew, 3 Barb. Ch. 407; Malins v. Brown, 4 N. Y. 403-410; Freeman v. Freeman, 43 id. 34; Miller v. Ball, 64 id. 286; Hutchins v. Hutchins, 98 id. 56-66; Haight v. Child, 34 Barb. 189; Winchell v. Winchell, 100 N. Y. 159.)

We do not understand these cases as they appear to be understood by the trial court. In none of them was this question presented for determination. In Malins v. Brown (supra) the judge writing the opinion says that, Payment of the purchase money and being let into possession are sufficient ” (citing the case of Dugan v. Gittings, 3 Gill. 138-151), and the same expression was used by this court in the case of Devinney v. Corey (23 N. Y. St. Repr. 308-310).

Several of the elementary writers and some of the decisions of the courts in other States appear to support these expressions. Our view of the question is that the payment of the consideration to the vendor and the delivery of the possession by him to the vendee may in some cases, and in others not, be sufficient performance of the contract to enable the purchaser to invoke the power of a court of equity to decree specific performance. In Lowry v. Tew (supra) the chancellor says: “ The principle upon which courts of equity hold that a part performance of a parol agreement is sufficient to take the case out of the Statute of Frauds, is that a party who has permitted another to perform acts on the faith of an agreement shall not be allowed to insist that the agreement is invalid, because it was not in writing. * * * In other words, upon the ground of fraud in refusing to execute the parol agreement after a part performance thereof by the other party, and where he cannot be placed in the same situation that he was in before such part performance by him. Taking possession under a parol agreement and in compliance with the provisions of such agreement, accompanied with other acts which cannot be recalled so as to place the party taking possession in the same situation that he was in before, has always been held to take such agreement out of the operation of the Statute of Frauds.”

The question is, therefore, as to whether the vendee, in taking possession of the premises, has done any act for which he cannot be fully, compensated in an action at law. If he has expended money in placing permanent improvements upon the premises, or paid the taxes thereon, he could not recover therefor in an action at law, and to deprive him of the premises would be a fraud upon him, where the improvements were made and the taxes paid upon the reliance of the parol agreement of the vendor to convey the lands to him. Ordinarily, the payment of the consideration, in whole or in part, could be recovered back in an action at law, but in case the vendor had in the meantime become insolvent, or if the Statute of Limitations had run against the plaintiff's claim, the vendee could not be restored to the same situation which he was in before the agreement, and to restore the premises to the vendor under such circumstances would operate to defraud the vendee of the money which he had paid thereon. In such case we think equity would have power to compel specific performance, and that this view is in accord with the general doctrine of the cases referred to. (Kenyon v. Youlan, 25 N. Y. St. Repr. 299.)

Again referring to the facts of this case, we find that Walker gave the premises to the defendant Caroline in payment for what he owed her in taking care of his mother. This was a legal obligation. He had agreed to pay her in case she would take his mother and take care of her. She performed on her part. It is the duty of children to take care of their aged and indigent parents. Walker, _ in promising to pay for the care of his'mother, was but performing a duty which rested upon him. The defendant Caroline accepted the premises as payment upon such indebtedness. The services were rendered in 1874, nearly twenty years ago, and the inference is that the Statute of Limitations has now run against the claim. So that if she is now deprived of the premises she must loose her claim for services rendered. It may be said that the Statute of Limitations had run when the agreement was made. Whether it had or not we are unable to determine from the evidence presented. No claim of that character appears to have been made upon the trial, and if there had been we think it would have made no difference, for Walker had the right to waive the statute and recognize his obligation to pay, and this he appears to have done by the agreement in question. It is, therefore, apparent that if she now be deprived of the premises she will lose her claim for services. This would be a fraud upon her which equity has the power to prevent.

If the facts are such that equity would afford her relief, she may avail herself of them as an equitable defense to this action. (Cavalli v. Allen, 57 N. Y. 508.)

An exception was taken to the evidence of Simon Monroe as to conversations had with Walker in reference to the conveyance of the premises in question to the defendant Caroline. It was claimed that he had such an interest as would disqualify him under section 829 of the Code; that he might become entitled to a life estate' as tenant by curtesy. This question was fully considered by this court in The Matter of Clark (40 Hun, 233-237), and the conclusion was then reached that the husband did not have such an interest in the real property of his wife as to disqualify him from being a witness. A different conclusion appears to have been reached by this court in the case of Devinney v. Corey (supra), but the question does not there appear to have been fully considered, or the attention of the court called to the former decision.

Children may become heirs at law of their parents, and as such entitled to the real property of which the parents may die seized, but during the lifetime of the parents the children are not vested with any interest in the real estate, and are consequently not disqualified under the provisions of the Code from testifying, and the same, we think, may be said in reference to a husband. He has no present interest. The wife may convey or devise by will, and thus deprive him of any estate which he otherwise might have had upon her death. In order to be disqualified under the Code, the witness must have a present, certain and vested interest, not an interest remote, uncertain or contingent. (Hobart v. Hobart, 62 N. Y. 80; Nearpass v. Gilman, 104 id. 507; Wallace v. Straus, 113 id. 238-241; see, also, Whitman v. Foley, 125 id. 651-659.)

The order appealed from should be reversed, and judgment ordered for the defendants upon the verdict.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Order appealed from reversed, and judgment ordered for the defendant upon the verdict.