author: Ward, J.:

text:
    Willard E. Case, Appellant, v. The County of Cayuga and The Board of Supervisors of the County of Cayuga, Respondents.

      Board of supervisors — power to consent to the construction of an electric road on a highway — hut only for public purposes.

    The use of a highway for a steam or surface railroad hy a duly incorporated company is not an infringement of the rights of an owner of land whose premises go to the boundary of the highway only, and where there is no negligence in the construction of the road and its use of the. street is not of an exclusive nature such owner is not entitled to damages.
    A board of supervisors has “the care and custody” of county real estate; where such property simply abuts upon a street a board of supervisors has power to give consent that a corporation may construct and maintain an electric road in front of the county’s premises.
    Such a consent is not the grant of an incorporeal hereditament.
    Such a consent, however, can only be given to a corporation that has the right to construct and operate a street railway, and for public, not for private purposes; if given to individuals the transaction is illegal as against public policy.
    Appeal by the plaintiff, Willard E. Case, 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 Cayuga on the 19th day of March, 1895, vacating an injunction granted in the above-entitled action.

      John M. Brainard, for the appellant.

      E. 0. Aiken, for the respondents.
   Ward, J.:

The plaintiff is a taxpayer in the city of Auburn, Cayuga county, and brings an action under section 1925 of the Code of Civil Procedure and also under chapter 301 of the Laws of 1892 to prevent waste and injury to the property of the county, and to enjoin .against a threatened illegal act, and his complaint alleges that the board of supervisors of the county, assuming to represent the county, were threatening to give the consent of the county to the construction and operation of a street surface railway upon Genesee street in the city of Auburn in front of the real estate of the county, which did not extend into the street, and upon which were located the ■court house, clerk’s office and the jail of the county, abutting on said street; said railway to be constructed substantially, and the cars used thereon to be drawn or propelled by electric power; and that such consent was to be in a writing, duly acknowledged and provedas required by law, to ITenry S. Dunning, H. B. S. Lord and George F. Willis, as individuals, and without consideration, with power in them, or their survivors, to assign said consent to an existing or proposed corporation as soon as the same was duly chartered and ■organized.

An injunction was obtained pendente lite from a justice of this ■court restraining the board from giving such consent or any consent to the construction and operation of a street surface railway on Gen-esee street in front of the property owned by the county. A motion was made at the Monroe Special Term to dissolve this injunction on behalf of the defendants, and upon that motion many affidavits were' read, and it appeared that there was in the city of Auburn a street railway operated by a corporation known as the Auburn City Kdil-way Company, and which desired an extension of their railway to that portion of Genesee street upon which the county property was situated. There were many affidavits to the effect that in the opinion of the affiants who resided in the city, and many of them upon the street in question, the construction of the railway and its operation would not in any way injure the county property, but, on the contrary, would be an advantage to it; and nothing appeared in the affidavits to indicate that any further occupancy of the street was contemplated than the reasonable use thereof by a railway placed in the streets and operated by electricity, with the possible exception of one affidavit, which alleged that the street was in fine condition and upon which there were many valuable residences; that it was macadamized, and the effect of building the railway would be to tear up the street and to some extent affect the passage over it. while the railway was being constructed. The Special Term dissolved the injunction, with ten dollars costs, but ordered that further operation of the order of dissolution, except to permit the board of supervisors to pass a resolution, giving consent, “ be stayed until the hearing and determination by the General Term of an appeal by the plaintiff.”

The appellant makes two points : First, that the board of supervisors had not the power to grant the consent of the county. Secondly, if such power existed it could only grant consent to some corporation that had authority from the sovereign power to construct and operate the railroad at the place in cpiestioii.

It may be regarded as the settled law of this State that the use of a highway for a steam or surface railroad by a duly incorporated company is not an infringement of the rights of an abutting owner of lands (one whose premises go to the boundary of the highway only), and such owner is not entitled to damages, and has no legal redress in the absence of negligence in the construction of the railroad, and where there was a reasonable use of the street for the road, and is not exclusive in its nature, but leaves the passages acrofes and through the • street free for the public usé. (Fobes v. The Rome, Watertown & Ogdensburg Railroad Co., 121 N. Y. 505, and cases cited; Kane v. The N. Y. Elevated Railroad Company, 125 id. 164, and cases cited.)

In Hussner v. Brooklyn City R. R. Co. (114 N. Y. 433) Judge Beadley says that the abutting owner had the right to insist that the switching of steam motors, discharging smoke and cinders in front of the premises and making such noises as to shake the buildings,, was a nuisance for which he could have damages, but the judge concedes the principle of the right of the railroad company to use the highway in the manner indicated by the foregoing cases; but the abutting owner has the right to insist that the street shall be open so. that from it access may be had to his lot, and light and air furnished across the .open space, and this right is an incorporeal hereditament appurtenant to the lot, and forms an integral part of the estate, and as to that the lot becomes the dominant and the street the servient tenement. (Story v. The New York Elevated Railroad Co., 90 N. Y. 145, 146; Kane v. New York Elevated Railroad Co., supra, 180.)

The cases where this right was asserted were mainly elevated railroad cases where the structures were permanent on the street, interfering with travel thereon, and covering the streets with railroad tracks and structures, obscuring the light and interfering with the circulation of air and with the sunshine.

It is not perceived that the operation of a street surface railway by electricity creates any burden to the street in addition to that imposed by a horse or steam railway, but must be governed by the same principles in determining the rights of the parties.

The papers upon this appeal do not present the case of such a threatened invasion of Genesee street as would justify the equitable ■or legal interposition of the court in behalf of the abutting owner.

The consent that is sought from the supervisors seems to be required by chapter 723 of the Laws of 1894, which provides that •consents of property owners and local authorities shall be given in writing, acknowledged or proved as a deed entitled to be recorded, of the owners of one-half in value of the property bounded on, and the consent of the local authorities having control of the street, before the surface 'railroad can be built, extended or operated. This .statute imposes a duty upon the company as a condition precedent to taking the streets for the purposes of its railroad, and the papers disclose that great importance is attached to this consent by both parties to this controversy with regard to securing the necessary number of consents of property owners. It is important to inquire what is the nature and extent of the consent sought in this case. The supervisors have not the power to convey or transfer any of the real estate of the county, except it may be in connection with the change, disposition or sale of the county site or some of its buildings under certain conditions. The statute only gives the board the care and custody ” of the real estate. It is a body of limited jurisdiction and cannot exceed the powers expressly conferred upon it by statute or such as may be necessary to carry those powers into •effect. If this consent is to be regarded as in any manner transferring or disposing of any portion of the real estate of the county or of any right appurtenant thereto and necessary for the enjoyment thereof, then such consent would be void for want of power. The question is, what this consent carries with it. In our judgment it simply gives the consent of an abutting owner, that the statute requires, perhaps to make up the necessary number to confer the franchise upon the railroad corporation. The consent is simply to build and operate a railroad, the operation of which works no injury to the county. Under the general powqrs conferred upon boards of supervisors, they have for the county the general management and control of the county property; they keep the property in order; make repairs; consent to temporary use of the property not inconsistent with its general purposes; discharge such duties as are imposed upon the county by statute; exercise permissive powers like the granting of statutory consent, where the substantial rights of the county are not affected or its property interests impaired, and we think under those general powers they had the right to execute a proper consent, representing the county, for a surface railroad upon this street. If it were proposed to construct an elevated road upon Genesee street, or any structure that would impair the ordinary use of the street, affect the access to the county buildings or shut out the light or sunshine from them, or if such conditions existed as appear in Hussner v. Brooklyn City R. R. Co. (supra), a very different question would arise, because then the supervisors would be parting by their consent with an incorporeal hereditament or right appurtenant to the county property which would be an injury to the property and which, in our judgment, the board would not have power to do. But the consent proposed is illegal in this respect; as we have seen, it gives to three individuals the power to assign the same to an existing or proposed railroad corporation. The consent can only be given to a corporation that has the right to construct and operate the street railway. It must be given for public and not private purposes, and it is against public policy to permit any intermediary to take such consent that may be used for purposes of speculation or private profit and not for the public good. A procedure of this nature in principle is pointedly condemned in Fanning v. Osborne (102 N. Y. 441).

The injunction should be modified in this respect, that the supervisors shall only be permitted to give the consent to construct and operate a surface railway upon the street in question to some corporation duly authorized by law to construct and operate the same, but arc restrained and prevented 'from executing tlie consent set forth in the complaint in tliis action; and the injunction thus modified to stand.

Costs of tins appeal should not be allowed to either party.

Lewis and Bradley, JJ., concurred; 1)wight, P, J., not voting.

Order modified as indicated in opinion of Ward, J., and the modification to be settled by him.


source: Caselaw Access Project

author: "Ward, J.:

license: Public Domain

text:
    Francis E. Comstock, Appellant, v. Benjamin Green, Respondent.

      Husband and wife — liability of a husband for a physician! s services to the wife while they are living apart.

    In an action brought by a physician against a husband to recover for professional services rendered-to the wife, the defendant denied, the allegations of the complaint and alleged specially that he and his wife were not living together; that she had left him without cause and that he was not liable for the services in question.
    Upon the trial of the action evidence was given tending to show that the husband’s neglect and ill-treatment of his wife, while she was ill, was such as to justify her in going to her daughter’s house, where she could he cared for and protected; that she went away with the consent and approval of the husband, and that she needed the medioal services and attendance in question.

      Held, that such evidence should have been submitted to the jury, and that a judgment of nonsuit should not have been granted.
    Appeal by the plaintiff, Francis E. Comstock, from a judgment of the Allegany County Court in favor of the defendant, entered in the office of the clerk of said county on the 19th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial in the Allegany County Court before the court and a jury, and also from an order entered in said clerk’s office on the 12th day of January, 1895, denying his motion for a new trial made upon a case and exceptions.

      L. O. Van Fleet, for the appellant.

      0. A. Falter, for the respondent.
   "Ward, J.:

This action was commenced in a Justice’s Court in Allegany county by Francis E. Comstock, plaintiff, against Benjamin Green, defendant, to recover for tlie professional services of the plaintiff as a physician, rendered to the wife of the defendant, which were necessary for her health and comfort. The complaint was denied by the defendant, and lie alleged specially that he and his wife were not living together; that she had left him without cause and he was not liable.

The plaintiff recovered a judgment in the Justice’s Court, from which an appeal was taken for a new trial to the County Court, and upon such trial plaintiff was nonsuited, and the sole question here is whether any question ivas raised by the plaintiff’s evidence that should have been submitted to the jury; and in disposing of that question we must take the most favorable view for the plaintiff that the evidence presents. The wife was an old lady. The plaintiff was'a physician in Allegany county and had attended the defendant’s wife professionally for a considerable period of time at the house of a daughter of the defendant and the wife, and there was evidence tending to prove as follows : That she was ill, principally confined to the house and to her bed, and needed the professional attendance given her; that the daughter with whom the wife resided lived at some distance from the defendant, and the defendant did not employ the physician; that the defendant and his wife had lived together formerly at the defendant’s home, and in the same yard and adjoining the defendant’s was a house where the daughter resided at first, and the mother becoming sick at home received the attention of the daughter and the daughter’s husband, and needed such attention ; the defendant seemed to care nothing for his wife nor did he pay her any attention; failed to furnish her with all the necessaries and delicacies and with the attention which her health required, so she was compelled to go to her daughter’s house for such attention and care as she needed. The defendant did not object to this, and when a time arrived soon after that the daughter and her husband left the premises and moved to another place, the wife was taken with them, with some articles of the furniture of the defendant’s that had been in use in his house, without any objection on the part of the husband and with his apparent acquiescence and consent. The daughter lived for a short time at the place to which she then removed, and moved again to the place where the medical services were rendered and where the wife finally died. The defendant gave her no attention after she left home nor did. he furnish ■her with any necessaries' or money, but expressed himself as glad that she had gone; that she had been nothing but a bill of expense to him-; and it further appeared that the residence of the wife with the daughter was necessary for her health up to the time of the death of the wife, which occurred as a result of the sickness and enfeebled condition from which she was suffering when she first left the defendant’s house. The defendant said of his wife that she had not been capable of doing her own business for some time and that he had to do it for her. There was evidence tending to show cruel treatment on the part of the defendant toward his wife while she was ill at his house, and tending, as far as words and manner could go, to distress and humiliate her in her enfeebled condition and thus injure her health, and there was evidence to go to the jury to sustain several propositions. First, that his neglect and ill-treatment of his wife while she was ill was such as to justify her in going away with her daughter where she could be cared for and protected. Secondly, that she went away with the consent and approval of the defendant. Third, that she needed the medical attendance and services of the plaintiff for which the bill was rendered. Ye indicate no opinion as to this evidence further than that it was sufficient to take the case to the jury.

It was error, therefore, for the County Court to take the case from the jury, and the judgment of the County Court should be reversed and a new trial granted, with costs to abide event.

Lewis and Bradley, JJ., concurred.

Judgment and order reversed and new trial granted in the Alle-gany County Court, costs to abide the event.


text:
    Edward B. Moore, Respondent, v. Isaac A. Cooley, Appellant.

      Trespass — surveyor’s MU, an ancient document — proceedings to lay out a highway.

    In an action brought to recover the damages caused by a trespass, consisting in the cutting of certain trees on real property, a surveyor’s bill fairly identified as made for one of the plaintiff’s grantors by a surveyor, dated as made in 1815, surveying the line in controversy and coming from proper custody, may be received as an ancient document proving itself.

      In sucli an action an application to lay out a highway, signed by the defendant’s grantor, in proceedings which took place in 1830, asking that a highway be laid out on the line between the land of the plaintiff and that of the defendant, and in which the survey purports to locate the center of the road on the line between the parties, offered by the defendant to show that the locus in quo was a public highway, unaccompanied by any offer to show that the line located by the highway put the trees, for the cutting of which the action was brought, on the defendant’s side, is immaterial and is properly excluded.
    Appeal by tlie defendant, Isaac A. Cooley, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of tlie county of Steuben on the 21st day of November,' 1894, upon the verdict of a jury rendered after a trial at the Steuben Circuit, and also from an order entered in said clerk’s office on the 1st day of December, 1894, denying his motion for a new trial made upon the minutes, and, also from an order entered in said clerk’s office on the 1st day of December, 1894, directing and permitting the plaintiff to enter judgment for treble damages.

      Frcmlc II. Robinson, for the appellant.

      A. M. Burrell, for the respondent.
   Ward, J.:

This was an action for cutting three butternut trees. The trees were so near the farm line of adjoining owners that a close contest arose as to whether the trees were on the plaintiff’s or defendant’s side. The jury found for the plaintiff and the damages were trebled. The parties claimed under a common source of title commencing in 1813. The premises were in the town of Canisteo, Steuben county, and the interests of the parties diverged and they took separate parcels of land in 1815.

The chief exceptions by the defendant were: First, that the court admitted a surveyor’s bill which was fairly identified as made for one of the plaintiff’s grantors by a surveyor, dated as made in 1815, surveying the line in controversy. This paper came from the proper custody, and was received as an ancient document proving itself. We think this objection was untenable.

The second, in refusing to • receive upon defendant’s offer an application to lay out a highway, and the record of the laying out of the highway. The application was signed by Peter Tice, the defendant’s grantor, who was in possession of the defendant’s premises, and asked tliat a highway be laid out on the line between the land that the plaintiff now owns and the defendant’s.

This application was dated in 1830. A survey was made of the road for the highway by the highway commissioners, and that survey purported to locate the center of the road on the line between the parties. The proceedings were all in 1830, and the papers came in due form from the town clerk’s office. This evidence, as claimed by the defendant, was offered for the purpose of showing that the land where the trees grew was a public highway. This was immaterial. ITad the offer been made to show that the line located by the highway put the trees on the defendant’s side, then a serious question would be presented, for it might be said that a road laid out so long ago, when the point was to locate it on the line between the parties, and all the men interested in the property on both sides at the time having had notice of it, and it being done at the instance of the defendant’s grantor in part, the survey thus made would be an ancient document of considerable force to fix the fact as to where the true line was.

Lewis and Bbadley, JJ., concurred; Dwight, P. J., not voting.

Judgment and order affirmed.


author: "Wajsd, J.:

text:
    In the Matter of the Estate of Samuel Hall, Deceased. The County Treasurer of Niagara County, Appellant; Thomas Scovell, as Administrator, etc., of Samuel Hall, Deceased, Respondent.

      Transfer tax — imposed upon the aggregate estate and not upon the shares into which it may he divided.

    The transfer tax, created by chapter 399 of the Laws of 1892, is imposed by the terms of the act upon the aggregate of the property which descends from the decedent and not upon the separate parcels or shares into which it may be divided.
    A share less in amount than $500 is taxable under the act, if all property of the deceased was of the value of $500 or over.
    Appeal by the County Treasurer of Niagara county from an order of the surrogate of Niagara county, entered in said court on the 26th day of November, 1894, fixing the tax due on the property of Samuel Hall, deceased, and exempting tlie shares of certain nephews and nieces of the deceased from taxation under an act entitled “ An act in relation to taxable transfers of property,” being chapter 399 of the Laws of 1892.

      Emmeb B. Oloott, for the appellant.

      Gliarles lliolcey, for the respondent.
   "Wajsd, J.:

Samuel Hall, of Niagara county, died on the 21th day of October, 1892, intestate. In December following letters of administration were issued on his estate by the Surrogate’s Court of that county, which estate of real and personal property amounted to about $4-,400. The estate devolved upon a brother and niece of the deceased, each having a share exceeding $500,. and upon John Hall and six other collateral relatives, each of whom was entitled to a share of $211.32. Proceedings were taken before the surrogate to determine the amount of. the collateral inheritance tax to be paid by the several beneficiaries of this estate. The surrogate decided that these shares of $211.32, being less than $500, were not taxable, and that the aggregate of those shares exceeding $500 could not be taxed under chapter 399 of the Laws of 1892, and the sole question here for review is whether he was right in that conclusion.

The Legislature, by chapter 483 of the Laws of 1885, imposed a tax of five dollars on every hundred dollars on “ all property which shall pass by will, or by the intestate laws of this State ” of residents of the State, or which should be within the State, to collateral relatives, with a proviso that an “estate which may be valued at a less sum than five hundred dollars,” should not be subject to the tax.

This statute was repealed by chapter 113 of the Laws of 1881, but the features of the act of 1885, above stated, were retained.

And, by chapter 215 of the Laws of 1891, an important amendment was made to the act of 1881, to the effect that a tax should be imposed upon the “beneficial interest to any personal property” that should “ pass ” to or for the use of any father, mother, husband, ivife, child, etc., of a dollar on a hundred dollars on an estate that should be valued at $10,000, or over.

The question arose under the act of 1885, whether the five per cent tax should be imposed upon the aggregate of the property of the deceased that went to the collateral beneficiaries, or the property that went to each beneficiary.

The Court of Appeals, in The Matter of Cager (111 N. Y. 343), decided in 1888, and in The Matter of the Estate of Howe (112 id. 100), decided in January following, held that the tax was not imposed upon the aggregate, but upon the specific shares that went to each claimant, so that a share less than $500 was exempt.

This was the state of the law when the Legislature enacted chapter 399 of the Laws of/1892, entitled “An act in relation to taxable transfers of property,” and which was intended as a revision of all the laws upon the subject, and which repealed them all. Section 1 provides that “ a tax shall be, and is hereby imposed upon the hrcmsfer of any property, real or personal, of the value of five hundred dollars or over ” — whether by will or intestate laws of a person dying in this State, or owning property within this State not exempt, etc.— and the tax should be five per cent of. the value of such property.

The 2d section provides that when the “property” passed by any such transfer to the father, mother, husband, wife, child, brother, etc., of the deceased, “ such transfer of property ” should not be taxable “ unless it is personal property of the value of ten thousand dollars or more,” in which case it should be taxable at the rate of one per cent of the value of the property.

Section 3 provides that all taxes imposed by that act should be due and payable at the time of the “ transfer,” except in certain contingencies.

Section 22, which is entitled a section of “ definitions,” provides that “ the words ‘ estate ’ and ‘ property,’ as used in this act, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the provisions of this act, and not as the property or interest therein, passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property or interest therein, whether situate within or without this State over which this State has any jurisdiction for the purpose of taxation. The word ‘transfer’ as used in this act shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift in the manner herein prescribed.”

It is not assuming too much to say that the Legislature in making the revision of these statutes, and in adding important provisions in such revision, had in view the decision of the Court of Appeals and the doubts and controversies which led up to those decisions, and determined to define the law clearly upon the subject.

In none of the previous acts had the Legislature undertaken to define the terms it had used, but by the section last quoted, and the whole revised act taken together, it seems to us that the judgment of the Legislature is made clear; that its intention was to make the aggregate of the property that was transferred to the collateral relatives the test in determining the question of exemption. It is the “ transfer ” that is taxed and not the estate ” of the beneficiaries respectively. It is the property as a whole as it descends from the decedent, and not the separate parcels into which it may be divided.

This view is in harmony with the evident policy of the law that all the property of the decedent shall be subject to the tax except in small estates of less than $500.

In The Matter of Hoffman (143 N. Y. 327) the Court of Appeals considered the question whether in the case of an estate in which there was a fund of $50,000 of personal property that had been bequeathed to several legatees, and where the amount received by one was only $9,385, the tax of one per cent was collectible from the whole fnnd or upon the separate portions. It held that the aggregate of the fund was the basis upon which to determine the tax and not the separate bequests, and, therefore, the legatee who received less than $10,000 was liable to be taxed for the amount he received.

The learned court in that case makes reference to other provisions of the statute and to the conclusions that the court had reached prior to the act of 1892 with reference to this subject; but the only question decided in that case is as above stated, and we must regard it as an authority for the position that we here assume, for certainly the same purpose is manifest in the act of 1892, to tax the aggregate of the property transferred by the deceased whether the tax falls under the one per cent provision or under the five per cent.

we are unable, tlierefore, to concur witli the learned surrogate, and the order appealed from should be reversed, but without costs, and proceedings remitted to the Surrogate of Niagara county.

Lewis and Bradley, JJ., concurred.

Order reversed and proceedings remitted to Surrogate of Niagara county to proceed thereon.


author: ~W ARD, J.:

text:
    Matthew Hallinan, Plaintiff, v. James Murphy and Ellen Murphy, Defendants.

      Ejectment — a grantee acting as intermediary to pass the title from husband to wife — estoppel.

    Upon the trial of an action of ejectment, involving the title to a small strip of land, it appeared that adjoining premises were conveyed to.two brothers, John Murphy, the grantor of the plaintiff, and James Murphy, the defendant, from a common source of title, and that both deeds covered the land in dispute; that John Murphy wished to transfer his title to his wife, Margaret, and to that end he and his wife deeded their premises to James Murphy by quit-claim deed, following the description in John Murphy’s deed, and that James Murphy, by a similar deed and by the same description, reconveyed them to Margaret. These deeds were without consideration and were dated and recorded at the same time.

      Held, that James was merely an intermediary for the accommodation and benefit of John and his wife, and that John was estopped from claiming the strip in question under the deed from James, and that the plaintiff claiming under him was also estopped by the constant, open and notorious possession by James of the strip, which was notice to all persons of his rights;
    That the deed to Margaret from James did not convey any 'more to her than James obtained by the deed from John and Margaret to him.
    MotioN by the plaintiff, Matthew Hallman, for a new trial upon a case containing exceptions ordered to be heard at the General Term in the first instance, upon the verdict of a jury in favor of the defendants, directed by the court after a trial at the Cattaraugus Circuit on the 11th day of September, 1894.

      E. D. Eorthruj), for the plaintiff.

      Q. M. Eider, for the defendants.
   ~W ARD, J.:

Tliis was aln action of ejectment, to recover a small strip of land, tried at the Cattaraugus Circuit in ¡September, 1894. Roth parties claimed under a common source of title. The deed to the defendants was executed and delivered first, but not recorded until after the original deed to the plaintiff’s grantor, John Murphy, was recorded. Both deeds covered the premises in controversy. The original grantees were brothers and tool? premises adjoining under their several deeds. The defendants were in possession of the disputed premises when John Murphy obtained his title, and he, doubtless, had constructive, if not actual, notice of the defendants’ rights. Later on John Murphy wanted to get the title in his wife, Margaret, to the premises he owned, and he and his wife deeded by quit-claim deed to the defendant James Murphy the premises, following the description of John Murphy’s deed, and James Murphy quit-claimed the premises by the same description back to Margaret. There was no consideration for either deed except the purpose of transferring the title of John Murphy to his wife, Margaret. The deeds bear date the same day and are recorded the same day and hour. Through a sheriff’s sale against Margaret and through various mesne conveyances the plaintiff obtained his title to the premises. The defendant James had occupied the premises covered by his deed and including the premises in dispute more than twenty years before the commencement of this action, and there was strong evidence showing that he had acquired title to the premises by adverse possession. At the close of the trial the defendants asked for a direction by the court of a verdict in their favor. The plaintiff in effect asked for a direction of a verdict in his favor except as to the damages and he desired that question submitted to the jury. The trial court directed a verdict for the defendants. The plaintiff claims that as the original deed to John Murphy was first recorded he has superior title under the Recording Act, and he also takes the position that because of the deed of the defendant James Murphy to Margaret, James has parted with his title to the premises in dispute. The learned trial court passed upon all of the questions of fact in the case in the place of the jury under the requests, except the question of damages, and the court, finding those facts and the law with the defendants, eliminated the question of damages from the case altogether, and there was nothing, therefore, to go to the jury. The court may well hare found that John Murphy had actual or constructive notice of the defendants’ rights to the premises in dispute, or that the defendants’ title to them was perfect by adverse possession. If it found the last question in favor of the defendants the deed to Margaret would be unimportant. As between the original parties the deed to Margaret did not convey any more to her than the defendant James obtained by reason of the deed from John and Margaret to him. James was an intermediary simply for the accommodation and benefit of John and his wife, and John would have been estopped from claiming the premises in dispute from James under that deed, and those claiming under John and Margaret are equally estopped as the constant, notorious and open possession of James of the disputed premises was notice to all of his rights. At least so the trial court may have found. Indeed, by a provision in the plaintiff’s deed the occupation of the premises by the defendants in dispute is recognized.

The motion for a new trial should be denied, with ten dollars costs and the disbursements, and judgment ordered for the defendants upon the verdict.

Lewis and Bradley, JJ., concurred.

Motion for a new trial denied and judgment directed for the defendants on the verdict.


author: "Ward. J.:

text:
    James S. Glenn, Respondent, v. Charles Rossler and Richard R. Ditzel, Appellants.

      Dependent and independent covenants — contract to sell real estate —• defective title excuses vendee — in an action at law the vendor is not entitled to time in which to obtain title.

    Covenants are to be construed as dependent or independent according to the intention of the parties and the good sense of the case; technical words must give way to such intent.
    Although where payments are to he made in installments, under contracts for the purchase of lands, the covenants to pay are independent and the vendor can sue on each installment as it matures, yet when the last installment becomes due the payment of the money and the conveyance of the land become dependent acts.
    Where the vendor has not title, or has a defective title, any precedent condition on the part of the vendee, such as tendering payment or security, need not be fulfilled.
    Where the vendee brings an action at law to recover past payments made upon a contract for the purchase of land, the title to which proves tc be defective, the vendor is not entitled to further time in which to procure a title from the real owners.
    In such an action the contract provided for the payment of certain installments and then stated that the vendors “shall, after the payments mentioned herein are fully made on this contract, at their own proper cost and expense, execute and deliver to the said party of the second part a good and sufficient warranty deed,” and also a tax and title search showing good title. It then provided that the vendee should execute a mortgage for the balance of the purchase money. On the day fixed for performance the vendors had no title to convey, and on that day the vendee tendered the requisite payment, but qualified the tender by demanding a deed in return.

      Held, that the vendee was entitled to recover the installments which he had paid;
    That the vendors were not entitled to time in which to perfect their title;
    That as the action was for the rescission of a contract between the plaintiff and the defendants, and for the destruction of the contract itself, it was immaterial, so far as the rights or liabilities of the defendants were concerned, that the vendee had conveyed part of his rights under the contract to a third person;
    That as the vendors could not convey the vendee was relieved from any duty to tender the bond and mortgage which, by the terms of the contract, were to be given by him as part payment, and security for the payment, of the balance of the purchase price.
    Appeal by tbe defendants, Charles Rossler and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of April, 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 18th day of May, 1894, denying their motion for a npw trial made upon the minutes.

      Charles F. Tabor, for Ditzel, appellant.

      John M. Chipman, for Rossler, appellant.

      Traey C. Becker, for the respondent.
   "Ward. J.:

The defendants contracted to sell to the pjaintiff about 130 acres of land located on the Niagara river in Erie county, on the 11th day of March, 1893, for $138,347, $1,000 of which was to be paid in seven days; $5,000 April 15; $10,000 July 1, and $10,000 October 1, 1893, with interest at the rate of six per cent per annum on all sums remaining unpaid at each payment; and the contract further provided that: “ The party of the first part (the defendants) shall, after the payments mentioned herein are fully made on this contract, at their own proper cost and expense, execute and deliver to the said party of the second part (the plaintiff) a good and sufficient warranty deed of said premises, and at the time deliver to the second party a tax and title search made by one of the guaranty search companies of the city of Buffalo, showing good and perfect title; and at the time deed to said premises is executed and delivered by the first parties to the second party, the party of the second part agrees to execute and deliver to first parties a bond and mortgage for the sum of one hundred and twelve thousand three hundred and forty seven ($112,347) dollars, due and payable six years from October first, 1892, with interest at the rate of six per cent per annum, payable semi-annually.”

The defendants did not have title to the premises they had thus contracted to sell; they liad only a contract to purchase from a widow who had a life estate simply in them, the fee of the land being in her eleven children, five of whom were infants. All of the payments due before the first of October from the plaintiff under his contract were made except the sum of $3,000 of the July payment, which the jury found had been extended by the agreement of the parties until October first. The first being Sunday, the parties agreed to transact the business hereafter stated on Monday, October second. On that day the plaintiff tendered to the defendants, in money, $17,330 due by the terms of the contract 6n October first, including the accrued interest, and demanded a deed of the defendants of the premises, pursuant to the contract. The defendants stated, in effect, that they were unable to give title as they had contracted to do, and asked delay to procure it of the owners, and that the money be deposited in a bank to await their procuring such title. This the plaintiff refused to do and retained the money, and the next day demanded of them the repayment of the moneys he had advanced upon the contract to the defendants, which amounted to about $13,000. This the defendants declined to do, whereupon this action was brought by the plaintiff to recover, among other things, the moneys so demanded and interest.

The principal contention of the defendants here is that the payment of the money due October first was a condition precedent under the contract, to the right of the plaintiff to a deed; that he could not malee such payment dependent upon the deed being delivered to him, and this was so notwithstanding the want of title in the defendants, as the covenants to pay and to deed were independent and not dependent covenants. This involves a consideration of the clause in the contract above quoted. We think the fair inference from that clause is that the deed was to be executed the same day as the payment, and the plaintiff was to have a tax and title search, the object of the search being to assure the plaintiff that the defendants had title before he should be required to pay the lai’ge sum of money due that day. When the title Avas shown, the payment of the money, the execution and delivery of the deed by the defendants and of the bond and mortgage by the plaintiff was the natural sequence. This view is strengthened by the fact that the bond and mortgage were payable with interest from October first, and this is the true construction notwithstanding the provision as to the deed being given, “after the payments mentioned herein are fully made upon this contract.” In determining the exact force of these words Ave must examine the whole instrument and -consider the object the parties had in making it. Covenants are to be construed as dependent or independent according to the intention of the parties and the good sense of the case. Technical words must give way to such intent, (M'Crelish v. Churchman, 4 Rawle, 26; Bredin v. Agnew, 3 W. & S. 300; Wright v. Smyth, 4 id. 527.)

Although where payments are to be made in installments under contracts for the purchase of land the covenants to pay are independent, and the vendor can sue on each installment as it matures, yet, when the last installment becomes due, the payment of the money and the conveyance of the land become dependent acts. (Beecher t. Conradt, 13 N. Y. 108; Johnson v. Wygant, 11 Wend. 49; Grant v. Johnson, 5 N. Y. 247; Eddy v. Davis, 116 id. 247.)

In the first case cited the vendor covenanted to convey if the ven-dee faithfully performed his covenants, among which was the payment of five annual installments of the consideration; and in the second case the covenant was “ and upon the payment thereof (the consideration) I am to receive from the said Johnson a good warrantee deed of said land.” The rule in these cases is applicable here as the deed was due October first.

In Robb v. Montgomery (20 Johns. *15, 20), a case largely running through the books, the Supreme Court lays down the rule in this language: “ In the first case the conveyance and payment are to be simultaneous acts, and there then must be an existing capacity in the one who is to convey to give a good title. In the other case, where the payments are to precede the conveyance, it is no excuse for non-payment that there is not a present existing capacity to convey a good title vmless the one whose duty it is to fay ■offers to do so on receiving a good title, and then it must he made to him or the contract will he resci/ndedP

Later cases (Holmes v. Holmes, 12 Barb. 137; affd., 9 N. Y. 525; Lawrence v. Taylor, 5 Hill, 107, 115, and cases there cited) hold that where the vendor has not title, or defective title, any precedent ■condition on the part of the vendee need not be fulfilled, such as tendering payment or security, and the court, in the last case, says that to require such a performance in such a case would be “ a most idle act.”

This is the doctrine of the English courts, and seems to be well sustained by reason and authority.

In Sir Antony Maynie's Case (1 Croke, 479) Sir Antony leased to Scot for twenty-one years by indenture, and covenanted that at .any time during Scot’s life, upon surrender of his lease, Sir Antony would make a new lease, and gave a bond to perform this covenant. In debt on the bond by Scot against IVIaynie, the latter pleaded that Scot did not surrender. Scot replied that Maynie after the lease had granted the reversion to another for eighty years, and on demurrer judgment was given to the plaintiff. The court held “ that Maynie had broken his cpvenant without a surrender because he had disabled himself, and the law will not enforce any one to do a thing which will be vain and fruitless; cmd although the lessee hy thi words was to do the first act, yet, as the lessor had disabled himself, liis covenant was broken without that act.” This reasoning has never been answered. Whether we apply to the defendants’ contention the rule just stated, or the stricter one in Robb v. Montgomery, it cannot prevail as the plaintiff made the proper tender of the money and demand for a conveyance at the time fixed by the contract.

The defendants insist that they are entitled under the contract, or if not by that, by virtue of some parol understanding, to time to procure title of the owners. This is an action at law for the recovery of the money paid by the plaintiff. The complaint, we think, notwithstanding the defendants’ criticism of it, embraces the cause of action, and it is unimportant whether it embraces others or not. It was said by some of the witnesses that proceedings were on foot to obtain title from the infants through the court, but it did not appear that the court had confirmed any sale of the infants’ property, and as a matter of fact the title of the infants was not secured until long afterwards; certainly the plaintiff could not be delayed in obtaining his title by a proceeding so full of uncertainty as this. He was entitled to his deed and title on the first of October, and the defendants then being unable to furnish it, the plaintiff could rescind the contract, which he did, and recover the money which he had advanced upon' it. (Northridge v. Moore, 118 N. Y. 419, 422, and cases cited.)

Where the vendor is without title he has no right to time to acquire it after the deed is due. (Camp v. Morse, 5 Den. 161.)

The defendants complain of the charge of the court in regard to the written agreement of August thirty-first (which provided in effect that there would be $17,330 due the defendants on the purchase of the land October 1, 1893). It is claimed that the court stated that that writing did extend the payment (which had been extended to September eleventh) to October first. It is difficult to conclude otherwise from this writing, as the $3,000 was in fact embraced in the $17,330, but be that as it may, when we take the whole charge together, no exception can prevail against it because it fairly submitted the question of extension to the jury.

The defendants also object because the plaintiff had, by contract, conveyed a half interest in the land to one Earnest, and that he could not rescind his contract with the defendants as long as that interest was outstanding. Whatever may be the rule in eases of fraud where there must be complete restoration by the party rescinding, the point is n.ot well taken here, for the reason that the rescission is for a breach of the contract between the plaintiff and the defendants which, destroys the contract itself, and any rights that Earnest may have had were dependent upon that contract and fall with it. At least Earnest has no claim against these defendants whatever he may have against the plaintiff. The defendants, therefore, cannot object.

The defendants finally object that 'the plaintiff is in default for not tendering a bond and mortgage as well as the payment on October second as recpiired by the contract. Had the defendants been ready with their deed and title the plaintiff was bound to have executed and delivered the bond and mortgage, but as there was no title to deed there was none to mortgage and the declaration of the defendants that they could not deed relieved the plaintiff from tendering the bond and mortgage. We find no reversible error upon this appeal and the judgment and order should be affirmed.

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

Judgment and order affirmed.


author: ~Wa:rd, J.:

text:
    The W. O. Hickok Manufacturing Company, Respondent, v. Edward W. Blackhall, Appellant.

      Promissory note — defense of defects in machinery paid for by such note — inferences the jury may dram as to the cause of the defects.

    In an action brought to recover upon a promissory note executed by the defendant to the plaintiff the defense set forth a claim for damages resulting from an imperfect manufacture by the plaintiff of certain machines contracted to be made for the defendant, the purchase price of which was represented in part by the note.
    The principal contest arose over the question whether the defective operation of the machines resulted from the method of manufacture or whether it was chargeable to the defendant because the patterns he furnished were defective. No proof was given by the plaintiff showing that the patterns or patent were defective, although he did give evidence tending to show that the material and construction were perfect.

      JIM, that the jury was at liberty to find that the failure of the machines did not-result from the use of imperfect material or had construction, and consequently that it might have been caused by defective patterns or plans in accordance-with which the machines were built.
    Appeal by the defendant, Edward W. Blackball, from a judgment of the Supreme Court in favor of the plaintiff, entered in the1 office of the clerk of the county of Erie on the 10th day of August,. 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 39th day of October, 1894, denying his motion for a new trial made upon the minutes.

      Re Roy Parker, for the appellant.

      Seward A. Simons, for the respondent.
   ~Wa:rd, J.:

This was an action to. recover the amount of a promissory note of $1,500 executed’by the appellant to the respondent. The defense ■was an alleged counterclaim for damages on account of six defective-machines for manufacturing envelopes which the plaintiff had manufactured and sold to the defendant -for $600 each, and the note was given as a result of this sale.

The defendant had patented certain improvements upon a. machine for manufacturing envelopes then in use, and the machines in question were to be built upon patterns furnished by the defendant, based upon such patents, and were to be perfect in material and construction.

The defendant, relying upon this contract, had contracted to deliver five such machines to a concern called the Burdick Envelope Company for $1,200 each, and defendant guaranteed to this company that the machines wordd do perfect work and turn out 50,000 envelopes a day.

The five machines were made and delivered to the Burdick Company, but would not work well and were failures. The Burdick Company sued the defendant for damages as a consequence, and put him t'o expense, and he settled the matter at a loss.

The invention was new and needed to be tested, and the defendant advised the plaintiff to employ one Scott, an expert, to work on the machines, and. the parties to this action shared the expense of his compensation. There was conflicting evidence as to the reason why the machines did not work as expected. The defendant claimed it was on account of the poor work done and the materials used in the construction of the machines by the plaintiff. The plaintiff claimed it was because the patterns and patents were defective, and the machines constructed upon them would not' do service. This question was submitted to the jury, and they found with the plaintiff, disregarding the counterclaim and giving the plaintiff a verdict for the amount of its note.

Defendant alleges error, first, that there was no proof given of defective patterns or patent, and none would be presumed, and that the defects in the machine must, therefore, have been in material or construction, or both.

This is untenable for. the reason that there was evidence given of perfect material and construction upon which the jury could find that such defect was not due to material or construction, and, consequently, may have been from defective patterns or plans upon which the machines were built. This was one method of proving that the patterns were defective.

Second, that the court erred in expressing an opinion against the abstract proposition submitted by the defendant in his requests to charge that the defendant might keep the machines and sue for damages or a breach of the plaintiff’s warranty as to material and construction, although the court did charge as requested.

No harm could possibly come from this, as the court had laid down the rule of damages most liberal to the defendant as to the machines that had been furnished to the Burdick Company, viz.: That if the plaintiff recovered at all, he was entitled to the difference between the contract price with the plaintiff ($600) and the selling price to the Burdick Company ($1,200), and also the expenses which the defendant had been put to in putting the machines in the condition necessary to make them fulfill the plaintiff’s contract. To this rule of damages the defendant’s counsel took no exception upon the trial. (Ledyard v. Jones, 7 N. Y. 550.)

Thi/rd. That it was error for the court to leave to the jury the question on the evidence whether Scott represented both parties in the construction of the machines or only the plaintiff, it appearing that Scott was engaged in the construction of the machines. This contention is not well founded, as there was evidence from which the jury might find either way, and it was the duty of the court to submit the question to the jury. The court charged fully and fairly upon all the questions submitted, and we can find no error in the charge.

The other errors claimed are unimportant.

The judgment and order should be affirmed.

Lewis and Bradley, JJ., concurred.

Judgment and order affirmed.


text:
    The Vogt Manufacturing and Coach Lace Company, Appellant, v. Carl Oettinger, Respondent.

      Complaint — when for conversion, and when in replevin — following money converted, into the property acquired by it — the remedy is in equity —jurisdiction of the County Court.

    The second cause of action in a complaint alleged that the defendant •wrongfully took from the possession of the plaintiff and carried away personal property of the plaintiff, to wit, money of a certain amount, and paid and exchanged it for certain personal property described; that the described property then became and was the property of the plaintiff, and that the plaintiff was entitled to its immediate possession; it then alleged the value of the property and a demand and refusal to deliver, and closed with a demand for the recovery of possession or of the value of the property in case a delivery could not be had. A demurrer was interposed.

      Held, that the complaint did not state a cause of action for wrongful conversion but in replevin;
    That the action being one at law, replevin could not be maintained upon the facts as stated, as the property substituted for the money could not be reached except in equity;
    That as the action was originally brought in a County Court, and as that court had no equitable power in this respect, the action could not be maintained.
    Appeal by the plaintiff, The Vogt Manufacturing and Coach Lace Company, from an interlocutory judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of Monroe county on the 12th day of January, 1895, sustaining a demurrer to the plaintiff’s second cause of action and dismissing said cause of action, with ten dollars costs.

      Wile (& Goff, for the appellant.

      George-M. Williams, for the respondent.
   Ward, J.:

There were two counts in the plaintiff’s complaint. The first alleged the ownership of the plaintiff in, and that it was entitled to the possession of, a kodak camera and other articles of personal property of the value1 of $180, and that it was detained from the plaintiff.

The second cause of action alleged that the defendant wrongfully and unlawfully took from the possession of the plaintiff and carried away the personal property of the plaintiff, to wit, money in various amounts aggregating and to the value of $468 ; that defendant did pay and exchange the said money so taken, or some part thereof, for the following described personal property, to wit,” enumerating the specific articles set forth In the first cause of action, and proceeds, “ that the above-described property thereupon became and is the property of plaintiff, and plaintiff is the owner thereof, and is entitled to the immediate possession thereof,” and then alleged the value of said property at $180.95, and the demand thereof of the defendant before the commencement of the action, and his refusal to deliver the same upon such demand to the plaintiff, and concludes, “ Wherefore, plaintiff demands judgment against defendant for the recovery of the possession of said goods or for the sum of one hundred and eighty and ninety-five one-hundredths dollars, the value thereof, in case a delivery cannot be had, together with the costs of this action.”

The defendant demurred to the second cause of action on the ground that it appeared on the face of the same “ that said second cause of action does not state facts sufficient to constitute a cause of action.”

A cause of action would have been stated in the complaint demurred to for the wrongful conversion of the plaintiff’s money if an appropriate demand for judgment had accompanied it. The judgment there demanded was for the specific property that was purchased with the money, or, in case delivery could not be had, of the value thereof. The action, therefore, seems to be predicated in replevin purely for the specific articles enumerated.

A demurrer to a complaint upon the ground that it does not state facts sufficient to constitute a cause of action should be sustained if the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, eyen though they would have entitled him to some other or different relief had he demanded it. (Edson v. Girvan, 29 Hun, 422; Swart v. Boughton, 35 id. 281, and cases there cited.)

The remaining question is whether replevin can be maintained upon the facts alleged in the pleading demurred to. The theory of the plaintiff is that the defendant acquired no rights in the substituted property, and is not permitted to assert any, and that the plaintiff is eutitled in a court of law to pursue the substituted property with the same proceedings and remedies that he would have as to the property taken from him, and to sustain this position the plaintiff cites Silsbury v. McCoon (3 Comst. 379, and cases there cited); Van Alen v. The American National Bank (52 N. Y. 1); Baker v. The New York National Exchange Bank (100 id. 31).

The case first cited was where corn had been converted into whiskey, and kindred cases are there referred to where logs have been converted into lumber or shingles, leather into boots or shoes, gold into cups, etc.; and asserting the proposition that the common law recognizes the same rule as the civil law in such cases, that where the rights of innocent persons did not intervene, any value or accretion added to the original property wrongfully taken from the owner belongs to the original owner, although by the change in the property effected by the wrongdoer it could no longer be identified, but evidence was required from the changes effected by the wrongdoer to trace it back to the original property.

This was an action of trover to recover the whiskey.

In Van Alen v. The American National Bank an agent had deposited money of his principal to his own account, and the principal brought an action to recover the money. The principal recovered, and the court says, at page 4: That so long as money or property belonging to the principal, or the proceeds thereof, may be traced and distinguished in the hands of the agent or his representatives or assignees, the principal is entitled to recover it, unless it had been transferred for value without notice.”

This money was realized by the agent by the sale of certain bonds of the plaintiff, although the identical money received for the bonds was not deposited, but money was substituted for it. The plaintiff recovered a judgment for the money, the bank having refused, upon a presentation of the agent’s check, to pay the money.

The case of Baker v. The New York National Exchange Bank, (supra) was a similar case to the one last cited.

It will be observed that in these cases the property taken by the wrongdoer, or the direct proceeds of that property, was recovered, though the identity of the property taken was lost by the act of the wrongdoer, and evidence was necessary to trace it back to the original condition. If the plaintiff recovers in the case before us it must be upon the theory that the plaintiff adopts the act of the defendant in using the stolen money to purchase the property sought to be replevined, and thus obtains title, as it were, by ratification; this may be permitted in an equitable action, but not in an action at law, where the action is based upon the wrongful taking or detention of the personal property of the plaintiff. The County Court had no equitable power in this regard, even if this may be treated as an equitable action to reach the proceeds of the plaintiff’s property in the hands of the defendant.

The interlocutory judgment sustaining the demurrer should be affirmed, with costs, with leave to the plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

Lewis and Bkadley, JJ\, concurred; "WerNer, J., not sitting.

Interlocutory judgment affirmed, with costs, with leave to the plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.


author: Waíed, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of Margaret Callister and Another, as Administrators of John Callister, Deceased. William D. Callister and Others, Appellants; Margaret Callister, as Administratrix, etc., of Robert Walker, Deceased, Appellant: Margaret Callister, Respondent.

      Mamed woman — her contract merged by her marriage to the other paHy to the contract— testimony as to personal transactions with a decedent — check made by an administrator — presumption of payment — personal liability thereon.

    Where an attorney employs a woman as clerk for so long a time as he practices law, payment not to he made until he retires from practice, and the parties are subsequently married, the contract is merged ; the husband is after that event entitled to her services and she cannot recover for them during the period of the marriage relation.
    Such a contract is not “ property ” within the meaning of chapter 200 of the Laws of 1848, which continues her separate property after marriage.
    Upon an accounting by an administratrix she presented a claim for services rendered by her against the estate of the decedent, her husband. Upon the. trial a note which she held against him was produced by the administratrix at the request of the next of kin, who offered it in evidence. To rebut the presumption created by the note, as against the individual claim of the administratrix for services rendered her husband, she was offered as a witness in her own behalf to explain the consideration of the note and the circumstances under which it was given, which involved her testifying to a personal transaction with her deceased husband. The objection of the next of kin, that the evidence was prohibited by section 829. of the Code of Civil Procedure, was overruled, and the evidence was admitted.

      Held, that when the note was produced and received in evidence without objection the presumption arose that all prior obligations of the deceased to the claimant had been discharged and settled, and the note represented the sum total of what was due the claimant;
    That testimony of the claimant tending to overthrow this presumption could only have been given, under section 829 of the Code of Civil Procedure, when “the testimony of the deceased person is given in evidence concerning the same . transaction;”
    That the note was in no sense the testimony of the decedent, and that the next of kin by calling for the production of the note in evidence could not be said to ■ have given in evidence testimony of the deceased.
    Upon an accounting by one Margaret Oallister, as administratrix of John Oal-lister, the same person being also administratrix of Robert Walker, it was found . that Oallister owed Walker a large sum of money

      Held, that the fact that Margaret Callister, as administratrix of Walker, gave a small check to John Callister did not create a presumption that the check was received in discharge of the claim existing in favor of Walker’s estate.
    An administratrix cannot bind her intestate’s estate by a check, and in its execution acts as an individual and becomes personally responsible for the amount thereof.
    Appkai., by William D. CaTlistcr and others, next of kin of John Callister, deceased, from a decree of the Surrogate’s Court of the county of Ontario, entered, in said court on the 23d day of November, 3894, confirming, as modified by said decree, the report of a referee and directing certain payments to be made to Margaret Callister.
    Also an appeal by Margaret Callister, as administratrix of the estate of Robert Walker, deceased, from so much of said decree as adjudged that the estate of John Callister is not indebted to the said Margaret Callister, administratrix of Robert Walker, deceased, and that said Margaret Callister, as such administratrix, is not entitled to recover from the estate of John Callister, deceased, the claim against said estate.
    Margaret Callister is the widow of John Callister, deceased, and the daughter of Robert Walker, deceased. She is the administratrix of the estate of Walker as well as an administratrix of the estate of Callister. She married Mr. Callister in May, 3857, and he died in April, 1888. Upon the accounting before the surrogate of the estate of Callister she presented, as administratrix of Walker, a claim' against the Cal-lister estate for $2,000 for money loaned by Walker to Callister, and for thirty dollars interest received by Callister upon a mortgage belonging to Walker. She also presented an individual claim to the eifect that about one year preceding her marriage with Callister (who was a practicing lawyer) she entered into a contract with him to act as copyist and clerk in his law office, for which he agreed to pay her at the rate of $500 per year, the employment to continue as long as he practiced law, payment not to be made until he retired from practice. That from the time of her contract until the time of his death ¡-she served continuously for him as such clerk and copyist, and had only received as compensation therefor the sum of five dollars, which was paid by deceased after the marriage, the decedent thereby recognizing the contract, and that Callister practiced law until the time of liis death. The next of kin of John Callister disputed tliese claims, and the matter was referred by the surrogate to a referee, who took proof in the course of which Mrs. Callister at the request of the next of kin produced a note for $1,200 made by her husband in her favor. The referee found in favor of Mrs. Callister, the claimant, upon this note of $1,200 and interest which she held against her husband, and found against her on her claim for services upon the ground that her contract for service was merged in her marriage, and rejected the claim in favor of the Walker estate upon the ground that Mrs. Callister, as the administratrix of Walker, had given a check for $120 to some bankers, payable to the order of John Callister, that had been indorsed by him and boro the mark of a canceling hammer. No explanation was given as to the check, its consideration or the purpose for which it was given. The next of kin required the claimant to produce before the referee the $1,200 note above referred to, and she did produce it, and the next of kin presented it in evidence as the note of Callister without objection. To rehut the presumption created by that note as against the individual claim of Mrs. Callister she was offered as a witness in her own behalf to explain the consideration of the note and the circumstance under which it was given, which involved a personal transaction with her deceased husband. The next of kin objected because it was such a transaction, and the evidence was prohibited by section 829, Code of Civil Procedure. The objection was overruled and the next of kin excepted and the evidence was received. The referee’s report and the evidence accompanying it was submitted to the surrogate, and that officer sustained the finding of the referee as to the claim of the estate of Walker upon the same grounds as assumed by the referee, but rejected his conclusions as to the claim for clerical services, and decreed that the claimant should recover it, amounting, with interest, to about $22,000, and should also recover the amount of the $1,200 jiromissory note and interest. The referee and surrogate both found the contract between Mrs. Callister and her husband as claimed by her and above set forth, and also that the $2,000 loan had been made by Walker to Callister, upon which Callister had paid $1,000, and the thirty dollars of interest on the mortgage had been received by him, and that the real consideration of the $1,200 note was for money which liad been given the claimant by her husband, and which had been accumulated for the purpose of buying oil paintings. The next of kin appealed from the decree allowing the claim of Mrs. Oallister. The administratrix of Walker appeals from that portion of the decree rejecting the claim of the Walker estate, and the two appeals were heard together.

      James G. Smith, for Margaret Oallister.

      W. A. Sutherland, for next of kin of John Oallister, deceased.
   Waíed, J.:

At common law the husband was absolutely entitled to the services of his wife, and to all that should be acquired by such services. During the period covered by the contract of Mrs. Oallister, and her services for her husband, the enabling acts for the benefit of married women had not deprived the husband of the common-law right to his wife’s services. (Blaechinska v. Howard Mission, etc., 130 N. Y. 497; Porter v. Dunn, 131 id. 314; Hendricks v. Isaacs, 117 id. 411; Bertles v. Nunan, 92 id. 160; Whitaker v. Whitaker, 52 id. 371.) In the case first cited, at page 502, where the question arose whether a manned woman working for her husband on a weekly salary, as seamstress, was entitled to the salary, the court says : The enabling statutes do not relieve a wife of the duty of rendering services to her husband. While they give her the benefit of what she earns under her own contracts by labor performed for. any one, except her husband, her common-law duty to him remains, and if he promises to pay her for working for him, it is a promise to pay for that which legally belongs to him. The fact that he cannot require her to perform services for him outside of the household does not affect the question, for he could not require it at common law. Such services as she does render him, whether within or without the strict line of her duty, belong to him. If he pays her for them it is a gift. If he promises to pay her a certain sum for them it is a promise to make her a gift of that sum. She cannot enforce such a promise by a suit against him.”

In the case last cited, which was an action upon a note given by the husband to the wife for services rendered by her, outside of the household and upon a farm, Judge Peckiiam, at page 371, says: If a wife can be said to be entitled to higher consideration or compensation because she labors in the ‘’field, instead of in her household (which I do not perceive and cannot admit), the law makes no such ‘distinction. It never has recognized the right to compensation from her husband on account of the peculiar character of her services.”

The learned counsel for the claimant (Mrs. Oallister) predicates his claim to recover for her services for her husband upon chapter 200 of the Laws of 1848, section 1, which provides that The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.” And his contention is that the plaintiff’s contract with Mr. Oallister having been entered into before her marriage, wras a chose in action, and, therefore, “ property,” and being property, was saved to her by the statute and was not merged in the marriage contract. It must be conceded that this was not an ordinary business contract concerning property. It was an extraordinary one, and one which seemed to contemplate an uninterrupted business relation during the professional life of Mr. Oallister. It was in the power of these parties, at any time, to do away with or modify this contract, or form any relation which, at law, would destroy the contract. A year after this contract was made an event occurs which we assume was not in contemplation of the parties when the contract was made that so changed the relation of the parties to each other that the servant became the wife and the master the husband. This changed relation was .inconsistent^ with the contract of exclusive service in clerical work, because at law the service of the wife belonged^to the husband and took on a domestic character. The wife after marriage was not obliged to work for the husband outside of her legitimate domestic duties. He could not compel her to work on the farm or continue the clerical work in his office, nor could she demand of him a salary as clerk. She had a higher demand upon him; he was now to support her and to supply her with all things appropriate to his means and his station in life as his wife and not as his servant. This changed relation then of necessity abrogated the contract. If the wife chose to continue the clerical work after the marriage she must be content with the new advantages which the marriage brought to her as her compensation for that work. As we have seen by the cases cited if she chose to perforin work for her husband outside of her domestic duties she cannot recover for her services of her husband although he has contracted to pay them. "We are of the opinion that it was not within the contemplation of the statute of 1848 to preserve a contract of this character from the effect of the marriage. The contract was merged in the marriage and the claimant can only recover for that portion of the clerical work at the stipulated rate performed before the marriage.

It was error to admit the evidence of the claimant as to the personal transaction between herself and her husband which resulted in his executing to her the note of $1,200. The note was produced upon the reference, upon the request of the next of kin, by the claimant, and it was received in evidence without objection; when thus proved the presumption arose that all prior obligations of the deceased to the claimant had been adjusted and settled, and the note represented the sum total of what was due the claimant. As such it was most inqiortant evidence. To break the force of this presumption the claimant was sworn over the objection that her ■evidence was prohibited by section 829 of the Code of Civil Procedure, and she testified as to the consideration of this note, which, if credited, overthrew the presumption. The claimant could only give this testimony, under section 829, when the “ testimony of the * * * deceased person is given in evidence concerning the same transaction.” This had not occurred unless, as claimed by the claimant’s counsel, by calling for the production of this note and its production in evidence by the administratrix the next of kin had given such testimony “in evidence.” This note was in no sense the testimony of the deceased. If the note had been brought into court by a subpoena and the signature of the deceased proved in the ordinary way, and the note had been shown to be in the possession of the claimant, it would have established the delivery •of the note and been evidence of the contract between the parties which raised the presumption referred to. The claimant could not go into the personal transactions behind the note, and out of which it arose, any more than in the case of a bond, a mortgage or any other written agreement between the parties. The production of this note by the claimant and the admission of the signature of the deceased, or allowing it to be read in evidence without the proof of signature, was simply a waiver on the part of the claimant of the proof of the signature and of the delivery of the note to her which otherwise the next of kin would have been compelled to establish. If this ruling is sustained then in all cases the evidence created by a writing between the living and the dead may be overthrown by the evidence of the living as to the transaction out of* which the writing was created, while the lips of the other party to the transaction are closed, thus defeating the wise purpose of section 829. The question is .asked in some of the cases what the Code means by the “testimony and evidence” of the deceased? This provision was probably incorporated in section 829 to meet a condition which appeared in Potts v. Mayer (86 N. Y. 302), where the evidence of a deceased person that had been given upon a former trial of the same action was read in evidence; the living party to the transaction was permitted to testify as to the same transaction which the court sanctioned in that case.

The surrogate having found as a fact the loan of the $2,000 from 'Walker to Callister, and the receipt by Callister of the interest money upon Walker’s mortgage, and that there had been paid upon this loan $1,000, the balance unpaid and interest is a valid charge against the estate of Callister, unless the next of kin are right in their contention that the check of $120 given by Mrs. Callister as administratrix of Walker to John Callister created a presumption that destroyed this claim. Had Mrs. Callister given her individual check it would not be claimed that such check would have had the-effect stated. The presumption is only created, if at all, by the fact that she signed it as administratrix of Walker. It is well settled that an administrator cannot bind' an estate by executing a note, check or other negotiable instrument as administrator. If he assumes to do so it is his individual act, and ho is personally responsible. (Buckland v. Gallup, 40 Hun, 61; Bingham v. The Marine National Bank of New York et al., 41 id. 377; Del., Lack. & Western R. R. Co. v. Gilbert, 44 id. 201; Thompson v. Whitmarsh, 100 N. Y. 35; Schmittler v. Simon, 101 id. 554.) The rejection by the surrogate of this claim was error.

The decree of the surrogate should be reversed and the proceedings remitted to the Surrogate’s Court of Ontario county to proceed there, with costs to all the parties to this appeal to be paid out of the estate of John Callister.

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

The decree of the Surrogate’s Court of Ontario county reversed and the proceedings remitted to that court, with costs of this appeal to all partiés to this appeal, payable out of the estate of the decedent.


author: "WbRNEe, J. :

text:
    Harry Sneck, Appellant, v. The Travelers’ Insurance Company of Hartford, Connecticut, Respondent.

      Accident insurance — “ loss by severance of one entire hand” — where there is only pcm'tial amputation, hut total inability to use it — a question for the jury.

    The provisions in a contract of insurance, will he strictly construed against the insurer, and-when its terms admit of more than one construction that 'construction will he adopted which supports the validity of the policy.
    A person injured hy an accident brought an action upon an insurance policy which provided that “if loss hy severance of one entire hand” should result from bodily injuries, arising from causes enumerated in the policy, the insured should become entitled to receive one-third of the face of the policy in lieu of a weekly indemnity of ten dollars for a period not to exceed twenty-six weeks. The medical testimony offered on the trial thereof tended to show that about one-half of the plaintiff’s hand, anatomically considered, was cut off hy a planer; hut there was also testimony to the effect that the rest of the hand was absolutely useless.
    The trial court held that the plaintiff had not suffered a loss by severance of an entire hand, and that he could not recover.

      Held, that inasmuch as some men might conclude from the evidence that, for all practical purposes to which a hand is adapted, there was an entire loss of the use thereof, while others might consider that neither in its anatomical construction nor in its practical use as a hand was it entirely destroyed, the question was one of fact for the jury; and that it was erroneous for the court to decide it as a matter of law.
    Lewis, J., dissenting.
    Appeal by tlie plaintiff, ITarry Sneck, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 21st day of January, 1895, upon the verdict of a jury, rendered by direction of the court after a trial at the Monroe Circuit.

      Howard W. Sneeh, for the appellant.
    Sattedee, Yeomcrn & Taylor, for the respondent.
   "WbRNEe, J. :

This action was brought upon a policy of insurance issued by the defendant to the plaintiff, by the terms- of which the latter was to receive a weekly indemnity of ten dollars, for a period not exceeding twenty-six weeks, for bodily injuries producing disabilities and resulting from causes enumerated in the policy. It was further provided in said policy that “ if loss by semerance of one entire hcmd or foot'1'1 should result from such injuries alone, the insured should within ninety days be entitled to receive one-third of the principal sum of $2,000 named in the policy in lieu of such weekly indemnity.

The plaintiff claims under this latter condition of the policy, and upon the first trial of this action he was permitted to recover, upon the theory that he had suffered the “ loss by severance of one entire hand,” Upon appeal by the defendant to this court the judgment entered at Circuit was reversed and a new trial ordered. The case was retried at the Monroe Circuit held in January, 1895, and at the close of plaintiff’s case and upon defendant’s motion a verdict was directed in favor of the plaintiff for $110, that being the weekly indemnity provided for in the policy at the rate of ten dollars per week for eleven weeks.

The injury complained of was concededly due to .the accidental causes enumerated in the policy.

The evidence upon the last trial as to the nature of the injury, so far as it relates to the anatomical structure of the hand and the extent to which amputation was made, is substantially the same as it was upon the former trial There is a marked difference, however, in the evidence given to show the degree of disability, or extent of the loss of use of the hand, resulting from the injury and amputation.

Upon the former trial the plaintiff gave evidence which tended to show that he had considerable use of the portion of the hand which was left, and plaintiff’s surgeon testified: “ The fingers and the heads of all the metacarpal bones were cnt off with a planer, -x- * -x- ^ little over half the hand, speaking anatomically, is gone. There are twenty-seven bones in the skeleton of the hand ; thirteen bones are entirely gone and parts of five more. The parts of the five are simply the heads of the metacarpal bones and (the head of) the middle bone of the thumb.”

He further testified, in substance, that the portion of the hand which remains is more useful than if the amputation had been at the wrist, and that it could be used for certain purposes.

Upon the last trial the plaintiff testified substantially that he had no use of the injured member as a hand, and never had since the accident, although admitting that upon the former trial he had probably testified that lie could use it to place under and against objects for the purpose of lifting and pushing. lie now attempts to explain these admissions as follows: But I didn’t exactly mean the hand. I mean the whole arm. I don’t use the hand. I use the arm. I do not mean the portion I exhibited to the jury. I mean the arm, not the hand.”

The physician who was called by the plaintiff upon the last trial in speaking of the condition of this hand gave substantially the-same anatomical description of its condition as was given upon the former trial. But, in speaking of its use, he testifies: “Nothing can be done with it; none of that for which the phalanges were used, nothing can be grasped with it, what remains of that hand; absolutely nothing.” He had no use of the hand.

These summarized extracts from the testimony taken upon both trials will suffice to show that, so far as the opinion of this court upon the former appeal was based upon evidence showing the extent to which plaintiff had lost the use of the injured hand, it is not controlling here. That the prevailing opinion upon that appeal did not rest entirely upon the terms or construction of the contract, but was predicated to some extent upon evidence showing the use to which the injured hand could be put, is clearly evident from the context thereof.

It seems our duty, therefore, to consider the case upon the evidence now presented, and to apply thereto the principles which control contracts of this character. It may be conceded for the purposes of this discussion that .if tlie language of this policy is to be construed in its strictest and most literal sense then plaintiff’s claim to compensation for “ loss by severance of one entire hand ” cannot be sustained, and tlie disposition of the case made by the trial court must be upheld. If, on the contrary, we are to give effect to the contract according to tlie ordinary and fair meaning of the terms employed, then we must consider the question whether the evidence was such that it became the duty of the trial court to prevent plaintiff’s recovery upon this claim by directing a verdict for the weekly indemnity provided for in another clause of the policy.

Let us then briefly consider the rules of interpretation which must be applied to this contract.

Words in a policy of insurance must be taken in their ordinary sense as commonly used and understood; and if the sense in which they were used is uncertain, as they are found in a contract prepared and executed by the insurer, they should be construed most favorably to the insured.” (Herrman v. Merchants’ Insurance Co., 81 N. Y. 184.)

The character and purpose of the contract must be considered, and if there is any doubt as to the true meaning of any of its terms it must be interpreted in the sense in which the insured had reason to suppose it was understood. (Hoffman v. Ætna Insurance Co., 32 N. Y. 413.)

In Darrow v. Family Fund Society (116 N. Y. 537) the court states the rule in the following language: “For the purpose of upholding the contract of insurance its provisions will be strictly construed as against the insurer. * * * When its terms permit more than one construction that one will be adopted which supports its validity. * * * And it is only when no other is permissible by the language used that a construction which works a forfeiture will be given to such an instrument.”

Looking at this contract in the light of these rules we think it is not unreasonable to hold that the understanding to indemnify the insured against “ loss by severance of one entire ha/nd ” has reference not alone to an injury which involves the loss or requires the amputation of the “ entire hand ” in a strictly anatomical sense, but that the effect as well as the extent of the loss by severance is to be considered in determining whether within the terms of the contract the “ entire hand ” is gone.

To require the insured to submit to a strictly literal interpretation of the contract prepared for him by the insurer, without regard to the purpose of the contract or the understanding thereof by the parties, would be to hold that only in case of the severance of the entire hand in a most acurately anatomical or technical sense could the insured recover under the clause of the policy. We do not believe that such a conclusion is required in the present case. The term “ entire hand ” is to be taken in its general acceptation and ordinary meaning. In construing this contract the law does not require an injury which comes within a strictly accurate and technical definition of the words employed, but one which reasonably, fairly and practically comes within the meaning of the terms employed in their general and usual meaning and acceptation.

In a contract of insurance providing for indemnity for the loss of a limb, the compensation to be paid is not merely for the physical pain of its amputation, but principally for the deprivation of its use as a member of the body. It would seem to be an extremely narrow and technical construction of this contract to say that only a physical removal of every particle of that portion of the human anatomy known as the hand would entitle the insured to recover under the clause of the policy now under consideration. Is it not more reasonable and logical to conclude that in the use of the language above referred to the “ entire hand,” as a part of the human structure, is considered in connection with the use to which it is adapted and the injury which the loss of such use would entail ? Is it not also fair to assume that this was regarded by the parties as the sense in which the contract was to be understood, and was one of the considerations which influenced the insured to enter into the contract ? An affirmative answer to these questions brings into harmony the language and the intent of the parties to the contract, eliminates from the case any seeming difficulty arising from purely technical definitions and bi’ings it fairly within the rule of Sheanon v. Pacific, etc., Insurance Co. (71 Wis. 618; 20 Am. St. Rep. 151), which is, in some respects, similar to this case.

The condition of the policy in that case was that the company should pay if the insured should “ suffer the loss of the entire sight of both eyes, or the loss of two entire hands, or two entire feet, or one entire hand and one entire foot.” The plaintiff suffered paralysis of his lower limbs caused by being shot in the back. The court held that the loss of the use of his feet from this accidental cause was within the provision of the policy which entitled him to recover.

The difference between that case and this is that here the policy provides that the loss must be occasioned by “ severance,” while in that case there was no specification as to the manner of the loss, except that it must be accidental. But we think this specification in the policy before us is intended to refer to the manner rather than to the exact physical extent of the inj ury.

The foregoing propositions necessarily' involve, as a logical sequence, the inquiry whether the evidence upon the trial was of such a character that the court was right in holding that plaintiff had not suffered the loss “by severance of one entire hand,” and, therefore, was not entitled to recover under this clause of the policy.

We think the learned trial court erred in assuming this to be its duty. If our reasoning is sound, the effect as well as the extent of the amputation was a proper subject for consideration at the trial.

The evidence, which was not the same as upon the former trial, was such that, under the rules here applied, different views might be entertained upon the question whether the plaintiff had suffei’ed the loss of an entire hand. To the minds of some men it would warrant the conclusion that, for the practical purposes to which the use of the hand is adapted, there was an entire loss of the use of it, while to others it might seem, after an inspection of the hand and a consideration of the evidence, that neither in its anatomical construction, nor in its practical use as a hand, was it entirely destroyed.

Unless the evidence settled this question beyond dispute, it was the province of the jury to decide it under proper instructions from the court as to the legal principles which govern the construction and effect of such contracts. We think this course should have been pursued, and are, therefore, constrained to reverse the judgment appealed from and grant a new trial, with costs to abide the event.

Ward, J., concurred; Lewis J., dissented; Bradley, J., not voting.

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


text:
    Albert J. Wheeler, Respondent, v. John A. Bell and Van Horn Ely, Appellants.

      Principal and agent — liability of am agent to Ms principal for fraud.

    Where the agent is false to his principal, and acts in hostility to his principal’s interests and for his own advantage, the principal may maintain an action against the agent for the recovery of the amount of money lost through the . agent’s malfeasance.
    Appeal by the defendants, John A. Bell and another, from a judgment of the Supreme Court in favor of Mark H. Irish,, entered in the office of the clerk of the county of Erie on the 16th day of June, 1892, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order of 'said court entered in said clerk’s office on the 13th day of July, 1892, denying the defendants’ motion for a new tidal made upon the minutes.
    Albert J. Wheeler was substituted, after the trial of the case, as plaintiff, in place of Mark H. Irish, deceased.

      AdeZbert Moot, for the appellants.

      AdoZph Rébadow for the respondent.
   Ward, J.:

The original plaintiff was Mark H. Irish. Irish sued the defendants in Erie county for fraud in putting upon him some real estate in Buffalo, and in obtaining the same property from him by fraudulent means. The defendants were real estate agents and assumed to act as such for Irish in the purchase of real estate, and went into an arrangement with the owner of some real property in Buffalo whereby they got an option on the property for him for $10,000, and without disclosing that fact to their principal, Mr. Irish, procured tbe sale to liim of this property for $15,000, whereby the defendants and some persons associated with them in the transaction made $5,000. Irish took the property, made some improvements thereon, and left it in charge of the defendants as Ms agents, for a time, and went away, lie living in Ganada. Afterwards, wanting money, he proposed to sell to the defendants the same property. They, in concert with another real estate agent, fomid a purchaser for the property at $24,000, and the defendants, without informing Irish of this fact, bought the property of Irish, giving him what he had paid for it, with interest and certain expenditures he had made upon the property, amounting in all to $17,500, and they then sold to the other party the same property for the $24,000, and after paying an associate in the business $1,000 the defendants realized from the transaction $5,500, making the total amount they had received in operating on both sides of Mr. Irish, $9,500.

There was evidence to justify the jury in finding these facts, and they rendered a verdict against the defendants for only $2,000, which defendants seek to set aside on exceptions to the refusal to nonsuit and a refusal to direct a verdict for defendants, and to certain portions of the charge. None of the exceptions has merit, and the judgment should, be affirmed.

Lewis, Beadley and "WeeNee, JJ., concurred.

Judgment affirmed.