text:
    Jonathan L. Gould, Appellant, v. Florence E. Patterson, as Administratrix, etc., of George G. Patterson, Deceased, Respondent.

      Justice’s Court — failure to object that title to real property is in question — justice’s judgment voidable and not void,— new trial in the County Court — pi'oceedings of the County Court — manner of trial in the Justices Court, not considered in the County Court.

    When by reason of the failure of the defendant, in an action brought in a Justice’s Court, to procure the discontinuance of the action on the ground that the title to real estate is involved therein, in pursuance of sections 2951, 2952 and 2954 of the Code of Civil Procedure, the justice obtains jurisdiction of the action, he is required to proceed with the trial thereof and the defendant is precluded from drawing the title to real estate in question, but if it appears upon the trial from the plaintiff’s showing that the title to real property is in question and is disputed by the defendant, the justice should, under section 2956 of the Code of Civil Procedure, dismiss the complaint.
    Although a justice of the peace cannot take cognizance of an action where the title to real property comes into question, as prescribed by statute, the question whether such title is broug'lit in question on the plaintiff’s showing and disputed by the defendant is for the justice to decide, and his refusal to dismiss the complaint, when it does so appear, does not render his judgment for the plaintiff void for want of jurisdiction, hut only voidable for error.
    When an appeal is taken from a justice’s judgment and a new trial is demanded, if the judgment be void there is no judgment to support the appeal or a new trial founded upon it.
    A trial in a County Court upon an appeal from the judgment rendered in a Justice’s Court, where a new trial is demanded, is not subject to the restrictions.of the statute in respect to the title to real estate applicable to a trial in a Justice’s Court, but the County Court has power to fully try the issues on the merits notwithstanding the fact that the case involves the trial of issues relating to a disputed question as to the title to real property; nor can the County Court dismiss the complaint on the ground that the title to real property was brought in question and disputed on the trial in the Justice’s Court.
    The relation which an action in its procedure, when taken into the County Court by an appeal demanding a new trial, has in respect to the action as it appeared in the Justice’s Court, is such as is given by the statute and the issues to be tried.
    The manner in which the action was tried in the court below and the questions there raised are not matters of consideration on the trial in the County Court.
    Appeal by the plaintiff, Jonathan L. Gould, from a judgment of the County Court of Livingston county in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 24th day of September, 1894, upon the decision of the court dismissing the plaintiff’s complaint upon the merits upon an appeal from a judgment of a justice of the peace of the town of Nunda, Livingston county, in favor of the plaintiff.

      Charles D. Newton, for the appellant.

      E. C. Olney and S. M. Norton, for the respondent.
   Bradley, J.:

The action was originally commenced against the defendant’s: intestate and recovery had against him by the plaintiff in a Justice’s Court. On appeal and demand for anew trial in the County Court, a trial was had which resulted in a dismissal of the complaint, and on appeal to this court the judgment of the County Court was reversed and a new trial granted. (63 Hun, 575.)

This appeal is from the judgment resulting on the second trial in the County Court. The ground for the dismissal of the complaint, as shown by the decision of the court, was, that it appeared on the-trial by the plaintiff’s showing that title to real property was in question, which title was disputed by the defendant, and that the same so appeared and was disputed on the trial in the Justice’s Court. The cause of action alleged in the complaint is that the defendant wrongfully entered upon certain described land owned by and in the possession of the plaintiff, and maliciously cut down and appropriated to his own use some trees growing thereon. The defendant by his answer denied the allegations of the complaint, and alleged title and possession in himself to the land where the trees stood and from which they were taken.

Upon the trial in the County Court, the plaintiff gave evidence of title to the locus in quo and that' question was litigated. This 'could have been legitimately done there if the action had been originally commenced in the County Court. On the review by this-court of the first trial in the County Court, it was held that the fact that the action was originally commenced in the Justice’s Court did not deny to the County Court the right to determine it upon the merits, although title to the real estate was brought in question by the plaintiff’s showing and was disputed by the defendant. And it was there said by Mr. Justice Macomber that “the learned county judge assumed, as we think, erroneously, that he was hearing the same case that had been tried before the justice of the peace. * * The fallacy of the learned counsel for the defendant in making his application for a nonsuit lay in the assumption, which, as above seen, has no existence in the statutes, that the County Court was obliged to’ dismiss the case if title to real estate appeared upon the trial there, just as though it was acting in the place of the court of the justice of the peace.” Reference was also made to the fact that it did not appear in the record before this court on such review that title to real property was in question and disputed on the trial in the Justice’s Court. But the effect, on the trial in the County Court, of such facts, if they had appeared, was not announced. On the second trial in the County Court, the evidence taken in the Justice’s Court was introduced with a view to the inquiry whether title to land was there brought in question and disputed. The defendant had the opportunity before the justice of procuring a discontinuance of the action there in the manner provided by the statute. (Code Civ. Proc. §§ 2951, 2952, 2954.) By reason of his failure to do so, the justice had jurisdiction of the action, was required to proceed with the trial of it, and the defendant was precluded from drawing the title in question. (Id. § 2955.) Yet, if it appeared upon the trial from the plaintiff’s showing that title to real property was in question and disputed by the defendant, the justice should have dismissed the complaint. (Id. § 2956.) It is difficult .in such case to see any support for the proposition that the trial and determination of the action by the County Court are dependent upon or controlled by the evidence and the questions raised upon it in the Justice’s Court simply because they were raised there. Although a justice of the peace cannot take cognizance of an action where the title to real property comes in question as prescribed by the statute (Id. § 28631, the question whether such title is brought in question on the plaintiff’s showing and disputed by the defendant is for the justice to decide, and his refusal to dismiss the complaint when it does so appear does not render his judgment for the plaintiff void for want of jurisdiction, but only voidable for error. (Id. § 2956; Koon v. Mazuzan, 6 Hill, 44; Bowyer v. Schofield, 1 Abb. Ct. App. Dec. 183; 2 Keyes, 633; White v. Place, 40 Hun, 481; Millbanks v. Coonley, 11 N. Y. St. Repr. 533.)

A different question arises when the justice’s judgment from which appeal for a new trial is taken is void. Then there is no judgment to support such an appeal or a new trial founded upon it. (Gillingham v. Jenkins, 40 Hun, 594.) As in the present case the appeal was available for the purposes of a new trial in the County Court, the only question here is whether or not there was any, and if so what, limitation of the power of the County Court, upon the trial, other than that arising from the issues as presented by the pleadings. They put in issue the title as well as the possession of the locus in quo. If there is any other, it arises from the fact that the action was commenced in Justice’s Court.

In O’Donnell v. Brown (3 Lans. 474), which was decided in 1871, it was held that the liability to have the action dismissed, by reason of a disputed question of title, followed the case from the Justice’s Court to the appeal for a new trial in the County Court. This was before the adoption of the Code of Civil Procedure. In White v. Place (40 Hun, 483) that proposition is, by Hr. Justice Bockes, treated as one of doubt; and, on the first review of the present case, it was held that the trial in the County Court was not subject to the restriction in that respect of the provisions of the statute applicable to the trial in the Justice’s Court, hut that the County Court had the power to fully try the issues on the merits, notwithstanding it involved the determination of a disputed question of title to real property. (Gould v. Patterson, 63 Hun, 575.) 'That is controlling authority here, and unless this case for some substantial reason can be distinguished from the case on the former review, the same result then given must follow. The court, then, did not determine that in case the title to real property was brought in question and disputed on the trial in the Justice’s Court, the County Court could, on that ground, dismiss the complaint if the like question arose on the trial in that court. No such question was before the court on that review, nor does it necessarily .appear what disposition would have been made of that proposition if it bad been there for consideration.

The relation which the action in its procedure, when taken by appeal into the County Court for a new trial, has in that respect to it, as it appeared in the Justice’s Court, is such as is given by the statute and the issues to be tried. The manner in which they are tried in the court below, and the questions there raised, are not matters for consideration on the trial in the County Court. (Crannell v. Comstock, 12 Hun, 293.) Prior to the amendment in 1865 of section 366 of the Code of Procedure it was held that the issues in the Justice’s Court could not be changed by amendment in the County Court on appeal to it for a new trial. (Savage v. Cock, 17 Abb. Pr. 403.)

But the jurisdiction and powers of the County Court have been somewhat enlarged by sections 348 and 3071 of the Code of Ciyil Procedure. By the latter section it is provided that, upon such an appeal to the County Court for a new trial, all proceedings therein “ are the same as if the action had been commenced in the appellate court, except as otherwise specially prescribed” in the chajiter referred to. This relates to procedure, and includes the power of the court to allow amendments to the pleadings, and thus to permit the trial of issues which were not in the court below. (Simpson v. Rome, W. & O. R. R. Co., 48 Hun, 113.) For the reasons hereinbefore given we have not deemed it necessary to refer to the evidence given on the trial before the justice.

The action was properly continued against the personal representative of the original defendant. (2 R. S. 114, § 5, Code Civ. Proc. § 757.)

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

Lewis, Ward and Werner, JJ., concurred.

Judgment reversed, new trial granted in Livingston County Court, costs to abide the event.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    John O'Loughlin, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence — personal injuries — failure of a railroad company to supply adequate and competen,t co-employees — failure to exercise the best judgment, not necessarily contributory negligence.

    On the trial of an action, brought to recover damages for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant,, where it is shown that the plaintiff was injured, while working as a switchman,, through the negligence of a co-employee who had been directed by the employer, in addition to his other duties, to act as switchman in the place of a switchman discharged in order to reduce expenses, it is a question of fact to be determined by the jury upon the evidence as to whether such co-employee had such familiarity with the switches, in their relation to the several tracks, as to render him a competent person to perform the service of switchman. If it be found that he was incompetent for such position, and that the plaintiff’s injury was the consequence of such incompetency, the conclusion is permitted that-the employer failed to supply an adequate force to do the work in the switch-yard, as its duty to the plaintiff required, and that, therefore, the employer was chargeable with negligence.
    The failure of a person injured to exercise the best judgment in avoiding the-danger is not necessarily contributory negligence, and in the determination of the question of contributory negligence, allowance may properly be made for influences which ordinarily govern the actions of persons.
    Appeal by the defendant, The New York Central and Hudson: River Railroad Company, from an order of the Supreme Court,, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 2d day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes..

      Albert H. Harris, for the appellant.

      Horace G. Pierce and John Van Voorhis, for the respondent..
   Bradley, J.:

The plaintiff having for fifteen years been in the service of the-defendant as flagman and switchman at and in the vicinity of Platt street in its freight yard in the city of Rochester, was, on February 8, 1894, struck by the switch engine and severely injured. He attributes his injury to the negligence of the defendant. In this yard were twenty switches and nearly as many tracks. The business of switching and shifting cars there was large and continuous night and day. For some time prior to the day of the accident there were four switchmen in the yard. Two were engaged there-during the day and two during the night. On that day, with a-view of reducing expenses, the plaintiffs mate was dismissed. The plaintiff was charged with the duty of taking care of the switches at and near Platt street, and the operation of the other switches was devolved upon the conductor and brakeman of the switch engine, called the trainmen. The course of Platt street is-east and west. The railroad tracks cross it nearly at.right angles. The number of tracks being seven at the crossing waá increased north of there to sixteen or more. For convenience, the tracks at the crossing may be numbered. from east to west. The circumstances were that about nine o’clock in the evening of that day when the engine was near the crossing and about to proceed north, the conductor said to the plaintiff that it was going to a track known as the Horn to get some cars; that it would come back south on what was known as the inside track, which on the crossing was the-fourth track from the west, and directed the plaintiff on the return of the engine to turn a certain switch. The engine proceeded north-on the most westerly track, known as the New House and Kent House track, taking the switches to the right until it reached the-main track (the fifth track from the west) at a distance of upwards-of 200 feet north of the crossing, and then on the signal of the conductor the engine came south on the main track and .struck the plaintiff who stood on that track at the crossing.

The return of the engine south upon the main track was without any object or purpose on the -part of the conductor. It was his-mistake in giving the signal which brought the engine south upon that track, resulting in the injury to the plaintiff. His intention was that it should by the use of another switch north of the crossing-pass on to the track next east of the main track and thence south on the inside track. If this mistake was attributable to the negligence of the conductor, who was the co-employee of the plaintiff, the defendant is not liable. But if the conductor was incompetent by reason of want of familiarity with the switches in their relation to-the various tracks to perform the duties of switchman a different question arises. In the beginning of his service he had for a time been engaged in coupling cars, but for the last three years and a half he had been engaged there as yard conductor. His business as such did not require him to turn the switches, and he did it only occasionally when convenient for him to do so in the course of his business as conductor. There is an apparent complication of the tracks .as they proceeded north from the crossing, and of the switches in their relation to the tracks. It seems quite evident that without the knowledge of the tracks iii their connection with and relation to each other, and experience in the operation of the numerous switches, a person would be liable to make some mistakes. The defendant was chargeable with knowledge of the skill requisite to perform that duty in the yard and was advised of the nature of the service the conductor had up to that time performed. It may also be observed that as his service as conductor continued his duties .and responsibilities were increased by adding those of switchman. Although he testified that he was familiar with the switches and their operation it was in view of his relation to the defendant fairly a question of fact for the jury whether he had such familiarity with the switches in their relation to the several tracks as to render him a competent person to perform that service. And if the jury found that he was then incompetent for it, and that the plaintiff’s injury was the consequence of such incompetency, the conclusion was permitted that the defendant failed to supply adequate force to do the work in the yard as its duty to the plaintiff required, and, therefore, that it was chargeable with negligence. (Flike v. Boston & A. R. R. Co., 53 N. Y. 549; Booth v. Boston & A. R. R. Co., 73 id. 38.) The conclusion was justified upon the evidence that the other members of the crew with the engine knew less about the switches than did the conductor. The switch engine usually employed in the yard, having a headlight on each end, had sometime before been taken to the shop for repairs. The engine in use at the time of the accident was one without any headlight in the rear and liad been temporarily in use there for a week. The evidence on the part of the plaintiff is that on the night in question there was no light whatever on the rear end of the engine and tender, and such is here assumed to be the fact although there was evidence on the part of the defense tending to prove that there was a red light of a lamp at one corner •of the rear end on the tender. The front of the engine was north and it was running backwards wlien tbe accident occurred The question whether the engine was suitably equipped with lights for the night service was also submitted to the jury upon the question of the defendant’s negligence, in view of its duty to use reasonable care in supplying adequate appliances for the safety of its employees.

The question whether the plaintiff was, by the evidence, relieved from the imputation of contributory negligence is somewhat close. He testifies that he supposed that the engine was coming south on the inside track, as he had been advised by the conductor it would \ that in the darkness he could see that the engine was coming south, but could not see that it was on the main track, and the inference is permitted that he was in a situation on that track to turn the switch, as he had been directed to have it done on the arrival of the engine at the proper place.

The inside track and the main track at the crossing opposite where the plaintiff stood were separated by only four feet and nine inches. It is evident that the plaintiff, not seeing that the engine was approaching on the main track, relied upon the statement of the conductor that it would be on the inside track, and, therefore, felt that he was safe where he stood. While the plaintiff might have avoided the possibility of danger by being upon no track, he had no reasonable apprehension of danger on the main track. He was not, under the circumstances, required to use the utmost caution by seeing to it that 'the train, by the mistake of the conductor, was not switched on to the wrong track.

The failure to exercise the best judgment is not necessarily contributory negligence.

In the determination of that question allowance may properly be made for influences which may ordinarily govern the action of persons. The plaintiff’s action had the support of his confidence in the purpose of the conductor, and his faith that the conductor could, and without mistake, would execute it.

He was, in effect, advised by him that he would be safe any where, except on the inside track, and lie was permitted to so understand it and act accordingly, if he, by the exercise of reasonable care, failed to observe anything to the contrary.

It may be if there had been a light on the rear end of the tender, .as it approached him, the plaintiff might have seen and avoided the danger to which he was exposed. We think, under the circumstances, the question of his contributory negligence was properly submitted to the jury; that there was no error in the denial of the motion for a nonsuit, or in the refusal to direct a verdict for the defendant, and that the verdict is supported by the evidence. The learned counsel for the defendant excepted to several refusals to charge as requested, and to some of the propositions submitted to the jury.

In view of the charge as made by the court to the jury we think none of those exceptions was well taken.

The order should be affirmed.

Lewis and Ward, JJ., concurred.

Order denying motion for new trial affirmed, with costs.


text:
    William H. Clapp, Respondent, v. The Town of Ellington, Appellant.

      Negligence of a commissioner of highways — separate action against one of two towns jointly liable for defects in a bridge — chapter 700 of 1881 — burden of proof— liability of one town created by a commissioner of highways of another — duty of a commissioner.

    The right of action against a town for the negligence of its commissioner of highways is dependent upon the provisions of chapter 700 of the Laws of 1881, and although the duty of taking care of a bridge, the center liue of which is the boundary line between two adjacent towns, rests upon the commissioners of highways of both towns, and although the towns are jointly liable for the consequences of the negligence of their commissioners in respect to such bridge, the remedy by action to recover damages for personal injuries sustained by reason of the defective condition of such bridge, is not necessarily against both towns jointly. The action is in its nature for tort, and in such a case the parties chargeable therewith may be sued severally as well as jointly by the party aggrieved
    While the onus is upon the plaintiff, in an action brought to recover damages for such injuries, to prove the negligence of the defendant’s commissioner, and so continues throughout the trial, yet the fact whether or not the defendant’s commissioner has done anything under the statute to charge the other town with liability is peculiarly within his knowledge, and if it tends to relieve him from the imputation of negligence furnished by the evidence it is for the defendant to prove it, and not for the plaintiff to prove the negative fact.

      A proceeding- under the statute, to charge the liability of one town, by the commissioner of highways of the other, in the case provided for, is not necessary, unless the commissioner of such other town in the outset declines to consent to incur its share of the expenses; if he then absolutely refuses to help do it he may be treated as having waived the statutory notice. Neither of the commissioners can justify his omission, at once, in some manner, to warn the public against the dangerous condition of a bridge, if the bridge be so defective as to necessarily require it, provided he has or is chargeable with knowledge or notice that such is its condition.
    'The commissioner of highways of a town is required to use ordinary care to see that the bridges in his town are reasonably safe for the public use. This duty fairly implies that some attention should within due time be given to each bridge, within his jurisdiction, of sufficient size to be dangerous to travel if in a defective condition.
    Appeal by tlie defendant, The Town of Ellington, from a judgment of the Supreme Court in favor of the plaintiff, entered in the •office of the clerk of the county of Chautauqua on the 31st day of May, 1890, upon the verdict of a jury rendered after a trial at the •Chautauqua Circuit, and also from an order entered in said clerk’s office on the 17th day of July, 1894, denying the defendant’s motion to set aside the verdict made upon a case containing exceptions.

      William H. Henderson and Frank W. Stevens, for the appellant.

      A. C. Wade, for the respondent.
   Bradley, J.:

The purpose of the action was to recover damages for personal injuries suffered by the plaintiff and alleged to have been occasioned by the negligence of the commissioner of highways of the defendant. They resulted from the breaking of the middle beam of a bridge over which the plaintiff was passing with a steam traction engine on the 1st day of September, 1885. The bridge constituted part of the highway on the line between the defendant in the county of Chautauqua and the town of Conewango, in Cattaraugus county, and the center of the bridge was such line. IJpon that fact it is contended that this action is not maintainable against the defendant because (1) it does not come within the statute which permits an action against a town ; and (2) that the liability of the defendant is joint only with that of the town of Conewango.

The right of action against a town for the negligence of its commissioner of highways is dependent upon the statute which provides that: The several towns in this State shall be liable to any person, suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.” (Laws 1881, chap. 700.) The view urged is that this was not a bridge in the town, but is only partly in it. It is true that the bridge was not entirely in the town of Ellington, and the liability of the two towns to maintain it was joint, and each of them was chargeable with one-half of the expense of its maintenance. (Laws 1857, chap. 383, § 1.) We think the bridge was in each town in the sense requisite to bring it within the operation of the act of 1881. And although the duty of taking care of the bridge rested upon the commissioners of both towns, and the towns were jointly liable for the consequences of the negligent default of their commissioners, the remedy by action was not necessarily against both towns jointly. The action is in its nature for tort. In such case parties chargeable may be sued severally as well as jointly by the person aggrieved. No reason appears why that rule is not applicable to actions against towns situated as these were in relation to the bridge. In Theall v. Yonkers (21 Hun, 265) there was an expression, not necessary to the result, that the defendant was not liable because the accident occurred on the portion of the bridge outside of the city of Yonkers and within the limits of East Chester. That view was not adopted by the court in Hawxhurst v. Mayor (43 Hun, 589). And by the court in the de artment where the Theall case was decided, it was said obiter by Mr. Justice Barnard, in Oakley v. Town of Mamaroneck (39 Hun, 448), that “ When an accident results from joint negligence all or either of the towns may be sued.” This is in accord with the general rule relating to actions at law not on contract. There is also a farther answer to the objection in the fact that the non-joinder of the other town is not pleaded as a defense. (Lyman v. County of Hampshire, 140 Mass. 311; Sweet v. Tuttle, 14 N. Y. 465.)

Upon the subject of the maintenance of a bridge at the joint expense of two towns, the statute provides that it shall be lawful for the commissioners of either of them, the other refusing to act, to enter into joint contract which may be enforced against them jointly or severally. (Laws 1857, chap. 383, § 2.) And that if the commissioner of either town shall not within twenty days after written notice from the commissioner of the other, or within a‘ reasonable time thereafter, consent in writing to repair the bridge the commissioner giving the notice may proceed to make the repair and maintain an action to recover the share of the expense chargeable to the town represented by the commissioner so served with notice. (Id. § 3.)

It may be assumed that the commissioner of highways of the defendant was not required alone to expend money to repair the bridge until he had taken some steps to have the commissioner of the town of Conewango join with him in doing it or to charge the latter town with liability to contribute to the expense of reparation. In view of such provisions of the statute it is urged that no negligence is imputable to the defendant’s commissioner of highways founded upon any notice of the defective condition of the bridge, with which he may have become chargeable within the time preceding the accident requisite for him to charge the other town with liability as prescribed by the provisions of section 3 before mentioned of the act of 1857, because it does not appear that he had not duly taken the steps to create such liability of the town of Conewango.

The asserted reason for this contention is that the burden is upon the plaintiff to prove that he had not done so. While the onus was with the plaintiff to prove negligence of the defendant’s commissioner, and so continued throughout the trial, the fact whether or not the defendant’s commissioner had done anything under the statute to charge the other town with liability was peculiarity within his knowledge, and if it would tend to relieve him from the imputation furnished by evidence it was for the defendant to prove it and not for the plaintiff to prove the negative of the fact. (1 Greenl. Ev. § 79; Smith v. N. Y. C. R. R. Co., 43 Barb. 229.)

The proceeding under the statute to charge liability of one town by the commissioner of highways of the other in the case provided for, is not necessary unless the commissioner of such other town in the outset declines to consent to incur its share of the expense, and if he then absolutely refuses to help do it he may be treated as having waived the statutory notice. (Day v. Day, 94 N. Y. 153.) Neither of them can justify his omission at once in some manner to warn the public against the danger if the bridge be so defective as to necessarily require it, provided he has or is chargeable with knowledge or notice that such is its condition.

The evidence tends to prove that the needle beam which gave way was then so decayed as to render the bridge dangerous for ordinary travel upon it.

The main question of fact litigated upon the trial was whether the defendant’s highway commissioner then in office was chargeable with negligence in the matter. lie was elected in February before and had been such commissioner nearly seven months.

The highways in the town aggregate about 100 miles in length and the bridges are about forty in number, of which that in question is probably the longest. Its length was fifty-two feet. The floor of the bridge was laid on joists resting on needle beams (of which there were three) and the abutments at either end of the bridge. The needle beams were sustained by means of iron rods supported by trusses at the sides of the structure. By the breaking of the middle needle beam the ends of the joists resting upon it and the plank necessarily went down, and with them the engine with the plaintiff upon it. The evidence on the part of the plaintiff tended to prove that the needle beam by the process of decay had become somewhat rotten as early as 1883, which was observable by inspection from beneath the bridge, and that at the time of the accident there remained only about an inch and a half in diameter of the needle beam sound, and that was in the center of it. This was a beech stick eight inches square. The bridge was built in July, 1879, and it was the judgment of some of the witnesses that beech timber might be expected to continue sound for from eight to ten years. The practical test, as shown in the present case, was that the soundness of this timber, when cut and applied to the use which it was, did not survive five years. ’ It does not appear that the commissioner had actual notice of the condition of the bridge, nor does it appear that he had given it any attention other than to authorize, on request of his overseer in that road district, new plank to be put upon it. He was required to use ordinary care to see that the bridges in his town were reasonably safe for the public use. This duty fairly implies that some attention should, within due time, be given to each bridge of sufficient size to be dangerous to travel if in defective condition. The evidence tends to prove that the process of decay of this beam, whicli had been going on for about two years, and which rendered it unfit to serve its purpose, was apparent to the observation of any person who was disposed to examine it.

Notwithstanding the very able argument of the defendant’s counsel in support of the proposition that the charge of negligence of the commissioner is not supported by the evidence, we think, after a careful examination of the evidence, that the question whether or not the accident may be attributable to the want of reasonable care on the part of the highway commissioner of the defendant, was one of fact for the jury, who, it may be assumed, took into consideration all circumstances appearing by the evidence in reaching the result represented by the verdict.

And as such conclusion was permitted by the evidence, the motion for nonsuit was properly denied. It is not seen that the verdict was so against the preponderance of evidence as fairly to. require the direction of a new trial. The question of contributory negligence of the plaintiff was properly and fairly submitted to the jury, and there was no error in the rulings at the trial.

The judgment and order should be affirmed.

Dwight, P. J., and Ward, J., concurred; Lewis, J., not sitting.

Judgment and order affirmed.


text:
    Commercial Bank and Menzo Van Voorhis, Respondents, v. Thomas Bolton and Others, Appellants, Impleaded with Herbert Behn, Defendant. Union Bank of Rochester, Respondent, v. Thomas Bolton and Others, Appellants, Impleaded with Herbert Behn, Defendant.

      Insolvent debtor —fraudulent transfer preferring one creditor — adequacy of consideration— entries in boohs of transferror— 7iou> fan’ competent against vendee.

    A debtor has a right to transfer his property to any of his creditors, and they may accept it in payment of their debts to the exclusion of other creditors, provided the transfer is made in good faith and has a reasonably adequate consideration.

      Where a debtor makes a transfer of bis property with intent to binder, delay and defraud his creditors, and tile transferee accepts the transfer to consummate such a purpose, the adequacy of the consideration is immaterial and will not protect the transaction.
    On August 3, 1893, Thomas Bolton transferred to his wife and to Frederick A. Sherwood certain personal property in payment of debts which he owed them. An action was brought by certain of his judgment creditors to set aside this transfer as fraudulent. Upon the trial the court, against the objection of Mrs. Bolton and Sherwood, admitted in evidence a statement of his assets made by Bolton in June, 1893, and also his sales book, cash book and ledger, showing the course of his business from that date to August 3, 1893. Upon this evidence, in part at least, the court found the value of his property on August 3, 1893, and also found that the consideration for the sale of the property by Bolton to his wife and to Sherwood was inadequate.

      Held, that the evidence was admissible against Bolton upon the question of his intent to defraud his creditors, but not against his vendees;
    That as against such vendees, who must be deemed to be bona fide purchasers, the ex pci/'te declarations of their vendor, made prior to the sale, were inadmissible;
    That such declarations were no part of the res gestee; that they did not come within the principle which makes the declarations of one person evidence against all in cases where there is a conspiracy, and where several persons are united in seeking to accomplish a common purpose.
    Appeal • by the defendants, Thomas Bolton and others, from a judgment of the Supreme Court in favor of the plaintiffs in the first above-entitled action, entered in the office of the clerk of the county of Monroe on the 16th day of August, 1894, after a trial at the Monroe Equity Term, except that the defendants do not appeal from so much of said judgment as dismissed the complaint as to the defendant Behn.
    Also an appeal by the same defendants from a judgment of said court in favor of the plaintiff in the second above-entitled action, entered in said clerk’s office upon the same day after a trial at the Monroe Equity Term, except that the defendants do not appeal from so much of the last-mentioned judgment as dismissed the complaint as to the defendant Behn.
    The plaintiffs are judgment creditors of the' defendant Thomas Bolton.
    The Commercial Bank recovered judgments against him September 13, 1893, for $2,115.40; September 20, 1893, for $3,032.30; October 7, 1893, for $4,035.23 ; and October 30, 1893, for $583.75.
    The plaintiff Menzo Yan Yoorhis recovered judgment against him October 21, 1893, for $5,185.74. Those judgments remain unpaid, except the sum of $2,863.66, which was realized by the Commercial Bank, October 30, 1893, from collaterals.
    The Union Bank of Rochester recovered judgments against Thomas Bolton, September 21, 1893, for $2,033.61; same day for $3,033.71.
    Frederick B. Hall recovered judgments against him November 1, 1893, for $1,025.48; same day for $4,048.64. These judgments were assigned by Hall to the Union Bank.
    After executions against the property of Thomas Bolton issued upon all of these judgments were returned unsatisfied, these actions were brought to set aside a sale of property made by Thomas Bolton to the defendants Catherine Bolton and Frederick A. Sherwood on the alleged ground that it was made in fraud of the creditors of the vendor. And Hermann Belin, to whom defendant Sherwood sold hia interest in the same property, was made a defendant in both actions, and in the complaints it was charged that he purchased with notice of the alleged fraud and that lie was not a purchaser in good faith.
    The complaints were dismissed as to Behn. As against the other defendants it was determined that the transfer of the property by Thomas Bolton to Catherine Bolton and Sherwood was in fraud of the creditors of the vendor and subject to the right of such creditors to have the property applied to the payment of their debts; that the Commercial Bank was entitled to recover against Catherine Bolton and Sherwood $7,283.45, the amount of its judgments; that the plaintiff Yan Yoorhis was entitled to recover against them $5,439.55, the amount of his judgments, and that the Union Bank of Rochester was entitled to recover against them $12,765.51, the amount of its judgments.
    Judgments were perfected accordingly.
    The property in question consisted of machinery, materials, stock, etc., in an establishment for the manufacture of shoes in the city of Rochester in which businesss the defendant Thomas Bolton had for several years been there engaged.

      William F. Cogswell, for the appellants.

      Walter S. Hubbell and John Van Voorhis, for the respondents.
   Bradley, J.:

The alleged defense, and that which the defendants gave evidence fending to prove in answer to the charge of fraud, was that the sale and purchase were made in good faith and for a consideration existing in the indebtedness of Thomas Bolton to the defendants Mrs. Bolton and Sherwood respectively and in payment of such indebtedness to them. It appears that Thomas Bolton commenced the business in or about the year 1872 and. continued until early in the year 1883, when by reason of a personal injury received by him he was advised to discontinue his business for a time at least. He then sold out to Goodger and Naylor for the consideration of $33,000. They paid him cash $14,000 and the residue by their notes on time. This $14,000 he let his wife (the defendant Catherine Bolton) have, and it was deposited in bank and in securities in her name, and by them the fund however invested was .then apparently treated as belonging to her. In the fall of 1883 he repurchased the business and thereafter carried it on until the sale to the other defendants on the 2d day of August, 1893. This sale was evidenced by a written bill of sale made by the seller', accompanied by an agreement in writing of the parties to the sale stating, amongst other things, that the consideration was an indebtedness to Sherwood of $11,744.56, all represented by promissory notes except $1,492.42 in open account, and indebtedness to Catherine Bolton of $8,200 in two promissory notes and a further indebtedness to her in a large amount for moneys loaned by her to him, and that he sold the property to her and Sherwood and they purchased it in payment and satisfacfaction of his indebtedness to them. After Bolton repurchased the property, and in 1884, the plaintiff Yan Yoorliis became his accommodation indorser and continued to indorse his'paper up to near the time of his sale in 1893, and the judgments recovered .by the bank plaintiffs were upon notes so indorsed by him. And in the meantime Bolton obtained from his wife for use in his business her moneys and securities in which investments had been made by her. By written memorandum of date January 31, 1893, by them subscribed, they made what purported to be a statement and settlement of matters between them, the result of which, as there represented, was an indebtedness of Bolton to his wife of $18,196.96, which they adjusted at $18,000, and he agreed to and did convey to her someo property and transfer to her certain claims, amounting together to $4,166.79, thus leaving a balance of $13,833.21 due her. This constitnted the apparent consideration of the sale to her of the undivided half of the property in question.

A debtor has the lawful right to transfer property to any and less than all his creditors in payment of his debts owing to them, and they to accept it in payment to the exclusion of other of his creditors, provided it is done in good faith for such purpose and has a reasonably adequate consideration in the amount of the debts for the payment of which the transfer of the property is made. (Wilder v. Winne, 6 Cow. 284; Auburn Ex. Bank v. Fitch, 48 Barb. 344; Loeschigk v. Hatfield, 5 Robt. 26; 51 N. Y. 660; Hale v. Stewart, 7 Hun, 591; Murphy v. Briggs, 89 N. Y. 446.) The fact and the amount of the liability of Bolton to Sherwood are not seriously questioned.

The trial justice did not deem it necessary to find, and, therefore, did not consider the question whether or not the amount before mentioned as per their adjustment due from Bolton to his wife, was a subsisting indebtedness to her. He did find that the amount of the debts which Bolton owed to Mrs. Bolton and Sherwood was very much less than the value of the property transferred to them.

He also found that the transfer was made to hinder, delay and defraud the plaintiffs in the collection of their debts, and that Mrs. Bolton and Sherwood were aware of such fraudulent intent, participated in it and accepted the transfer to enable him to consummate such fraudulent purpose. If this conclusion was without reference to the question of the amount of the consideration, and had the support of evidence, the latter question was unimportant for the purposes of the relief sought by the action. (Billings v. Russell, 101 N. Y. 226; Baldwin v. Short, 125 id. 553.)

In 1883, when Bolton gave his wife the $14,000 and it was placed to her credit in the bank, he was solvent and at liberty to vest title in her to the fund. She evidently, in lending him her money and the securities in which some of it was invested, was governed by his desire in that respect; and it may, in view of his relation to her, be assumed that she acted on his advice in taking the transfer of the property. For some years prior to the time of his transfer in question of the property, Bolton’s indebtedness from time to time increased, and was represented largely by his notes indorsed by Van Voorhis, to whom he transferred accounts of his customers as collateral. The customers were not advised of the transfers of the accounts, and Bolton was permitted by Van Voorhis to collect them and make use of the proceeds in his business. At length, and shortly before August, 1893, Van Voorhis advised Bolton that he had concluded to have the accounts which were and should be taken as collateral, paid to him or to the banks where the notes were held. This, it seems, was deemed by Bolton embarrassing to him as he depended much upon collections for the payment of current expenses. The depression in trade for some time had been and was such that he deemed it necessary to have all the resources of his business to maintain it. He thereupon consulted the defendant Sherwood, who was also his creditor, and stated to him that unless Van Voorhis permitted him to collect the accounts as he had done he should sell out the property and business, and proposed to make the sale in that event to him and Mrs. Bolton. His consultations with Van Voorhis finally, as evidence tends to prove, resulted in the requirement of the latter that the accounts should be paid to him or into the banks and applied upon the notes indorsed by him. This precipitated the sale which was made August 2, 1893.

While Sherwood was not pressing Bolton he evidently had become somewhat anxious about his own matter, and his leading object in becoming the purchaser was to get payment of Bolton’s liabilities to him. There was, however, a state of facts and circumstances disclosed by the evidence which permitted the inference that the sale to Mrs. Bolton and Sherwood was contemplated and made with a view to some ultimate benefit to the seller hi relation to the plant and business, and that of such expectation on his part the purchasers were advised before and when the sale was made by him to them. Such relation of confidence with a view to some future advantage to Bolton, if such was contemplated, was prejudicial to the legal rights of the plaintiffs as his creditors, and as such fraudulent as against them, although the main purpose of the purchasers was to secure or obtain the jiayment of the debts due to them.

The view here taken is that, whether or not the sale was made with intent to defraud the other creditors, and whether the act of purchase was infected with a like imputation, were questions of fact, within the province of the trial justice to determine, and his conclusion in that respect was permitted and supported by the evidence and tlie inferences legitimately derivable from it. This may have been founded somewhat upon the fact as found that the debts which Bolton owed the purchasers were much less in amount than the value of the property.

He had annually for some years furnished to Yan Yoorhis statements of his assets and liabilities. "While the later ones had shown much less balances in his favor than the earlier ones, that of June, 1893, showed a balance of resources over liabilities of $25,550.46. There was some evidence on the part of the defendants tending to prove that such statement was incorrect, and that his resources were much less than his liabilities, and not equal in amount to the indebtedness before mentioned to Mrs. Bolton and Sherwood. The trial justice, however, found that the value of the property was $35,000. He also found that the consideration, which was $13,952.01, of the sale made by Sherwood to Belin on August 15,1893, was not inadequate ; that the sale was of. all of Sherwood’s interest in the property which had been transferred to him by Bolton, except certain accounts, which before then had been collected, and a considerable amount of the stock which had by Sherwood been made up and sold.

By reference to his opinion it seems that the trial justice, in the process by which he illustrated that the value of the property was considerably reduced when Sherwood sold to Behn, assumed that Sherwood had received payment for the $1,400 of manufactured goods he had shipped to customers before the sale to Behn, and which, less the expense to him incurred, amounted to $5,400, and that he also had the benefit of $4,000 of accounts transferred by Bolton, thus reducing the property $9,500 in value during the time intermediate the two sales, and giving adequacy to the consideration of the sale by Sherwood of his interest to Behn. The evidence does not seem to warrant the conclusion that the value of the property was in that manner to .such extent reduced within that time. The evidence on the subject is to the effect that the bills for goods shipped during the time between the two sales and the accounts transferred by Bolton to his wife and Sherwood remained unpaid, less about $300, at the time of the sale to Behn ; that Sherwood’s interest in them, as in the other property, was transferred in that sale to him, and that during that time Sherwood paid out in and about the business $2,698 and received $444.18, leaving a balance of $2,253.82 to bis credit. These facts are mainly represented by the evidence given by Sherwood, and are to some extent corroborated by the evidence of the bookkeeper. While Their relation To the action and to the business was such as to put their credibility in question, we find no evidence to the contrary in the record. But error cannot properly be predicated upon incorrect statements in the opinion appearing to have been made in the process of deduction of facts. Reference must be had to the facts as foundfin the decision, and if those which are material to the result have the support of evidence the conclusion may, in that respect, be sustained.

It is true that exception was taken to the finding on the subject of the receijTs from goods shipjDed and from accounts transferred to Mrs. Bolton and Sherwood. Birt that finding has no essential bearing upon the issues between the parties to this controversy. The misapprehended fact that the value of the'property liad been reduced by taking out of it $9,500 before the sale to Behn may have led to the conclusion That the consideration of the sale to him was not inadequate. This was the only material or available bearing of that fact. And it does not concern the remaining parties to the record.

The more serious question arises upon exceptions taken to the reception of evidence which may have led to the conclusion that the property transferred to Mrs. Bolton and Sherwood had the value of $35,000 and that the consideration of the sale was inadequate.

A witness on the part of the plaintiffs went to the factory in September or October, 1893, with a view of ascertaining the value of the property transferred by Bolton to the other defendants on August 2, 1893. He there found the book containing the statement called inventory, made by Bolton or by his direction June 15,1893,' before mentioned. The book was offered and received in evidence for the purpose of proving that the value of the merchandise as then represented was at that time $8,934.09.

The sales book, cash book and ledger of Bolton were also offered, and received in evidence, and from those books the witness stated or read as it there appeared that after June 15, 1893, and prior to the second day of August following, the amount of merchandise purchased was $11,400, the amount of cash paid for labor $5,100, and the amount of new accounts charged $8,500, making' together $33,934.09, which, with the estimated value of the machinery, fixtures, furniture, lasts, dies and patterns, made $43,354.22, from which he deducted the amount of the accounts which had been transferred to Van Voorhis, $5,003.62, leaving a balance of $38,350.60 thus represented as the value of the property sold and transferred by Thomas Bolton to Mrs. Bolton and Sherwood. The fact so assumed, that the merchandise on hand June fifteenth may not have been reduced by the sales during that time, is not very apparent. That, however, is not important for the purposes of the question here presented.

When those books were severally offered in evidence objections were taken by the defendants Mrs. Bolton and Sherwood to the reception of them as evidence against them on the ground that the entries contained in the books were hearsay evidence and, as against them, incompetent. -The objections were severally overruled, the books received in evidence and those two defendants excepted. Those entries in the books were in their nature the declarations of Thomas Bolton made or by him caused to be made before (so far as appears) any sale to the other defendants was contemplated. They were admissible against him as bearing upon the question of his intent to defraud his creditors other than those to whom he made the sale. Fraudulent intent on the part of a vendor is sufficient to render the sale ineffectual as against his creditors unless the vendee is a purchaser for value, and when the fraudulent intent of the vendor is shown the burden is cast upon his vendee to prove that he is a purchaser for a valuable consideration. (2 R. S. 131, §§ 1, 5; Starin v. Kelly, 88 N. Y. 418.) But the declarations of the vendor, which may merely tend to impute such intent to him, are not admissible as against his vendee. The intent alone of the former in fraud of his creditors is effectual to invalidate his sale as against them when it does not appear that the sale was for a valuable consideration. The entries in question, as they appeared in Bolton’s books, were his ex parte declarations and were in no sense competent as evidence against the other defendants, and tlieir exceptions to the reception of the entries as evidence against them were well taken. (Truax v. Slater, 86 N. Y. 630; Bush v. Roberts, 111 id. 278; Baldwin v. Short, 125 id. 553; Flannery v. Van Tassel, 127 id. 631; 37 N. Y. St. Repr. 228; Flagler v. Wheeler, 40 Hun, 125 ; Flagler v. Schoeffel, Id. 178.)

The rule which gives admissibility to the declarations of one of several persons as evidence against all of them is applicable when they are united in a conspiracy and the declarations are made in aid of the common purpose. (Apthorp v. Comstock, 2 Paige, 482; Dewey v. Moyer, 72 N. Y. 70.) Such was the case of Loos v. Wilkinson (110 N. Y. 195), where it was held that the declarations of one of the defendants were admissible against all of them because they were in part the means used to accomplish the fraudulent scheme then in progress and in which all of the defendants were united. The reason of that rule has no application to the question in the present cases in relation to the declarations of Bolton as represented by the entries made in his hooks when they appear to have been made. In Brisbane v. Pratt (4 Den. 63) the declarations of the former holder of a promissory note were' treated as admissible against the plaintiff because it was held that the latter, as such party, represented the interest of the person whose declarations were in question, and, therefore, it was against the party in interest that the evidence was offered. That case in some of its features was questioned and practically overruled in James v. Chalmers (6 N. Y. 209).

In Von Sachs v. Kretz (72 N. Y. 548) it. was held that the declaration of a bankrupt made before his bankruptcy were admissible in support of a claim against his estate for the reason that the relation of the assignee in bankruptcy was that of representative of the bankrupt.

And in Kennedy v. Wood (52 Hun, 46) that doctrine was applied to an assignee of a voluntary assignment for the benefit of creditors of the assignor. It is unnecessary for the purposes of the present case to inquire whether or not the rule in such cases should be analogous. (Vidvard v. Powers, 34 Hun, 221; Bullis v. Montgomery, 50 N. Y. 352.)

There is no opportunity upon the evidence to bring those entries in the book within any purpose common to the defendants or to apply to them the rule of res gestæ. They were made before the sale and purchase appear to have been had in view by the parties. The question, therefore, is whether it is reasonable to assume that the purchasers may have been prejudiced by the introduction of such evidence against them.

As has already been observed there was evidence tending to prove that the sale was made and taken in payment of debts owing by the vendor to the purchasers. That being so the purchase was for a valuable consideration within the meaning of the statute. (Murphy v. Briggs, 89 N. Y. 446.)

The value of the property was a legitimate fact bearing upon the main issue. And those entries in the books apparently constituted the evidence upon which it was found by the court as against the purchasers that the consideration was inadequate. It is true that in respect to the items of amount of cash paid for labor and salaries ($5,100), and of new accounts charged ($8,500), there was some other evidence to the same effect. But no other evidence in the record tends to prove anything like the amount of merchandise on hand between June 15 and August 2, 1893, as that indicated by the entries in the books. And in view of the fact which that evidence tended to prove it cannot be seen ' that the result reached by the trial court as against Mrs. Bolton and Sherwood may not have been, and was not, in some sense attributable to it, although it possibly may have been controlled wholly by other considerations.

The exceptions to reception of such evidence against those two defendants were well taken, and the error was such as to require the direction of a new trial as to them.

The further question relating to the nature and form of the judgments directed against those defendants is not considered on this review. If that question had been reached, and any correction found to be necessary, it could have been accomplished by modification.

There -was no error as against the defendant Thomas Bolton. The judgments against the defendant Thomas Bolton should be affirmed, and as to the other defendants reversed and new trials granted, costs to abide the final award of costs.

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

Judgment as against the defendant Thomas Bolton affirmed, with costs; as to the defendants Catherine Bolton and Frederick A. Sherwood judgment reversed and a new trial granted, costs of this appeal to abide the final award of costs.


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    John A. Mann and Others, Respondents, v. The National Linseed Oil Company, Appellant.

      Contract — its intention indicated by the acts of the parties— right of a vendor upon default to sell — changing the character of property after default.

    Where a vendee refuses goods tendered, the vendor may sell the property and hold the vendee for the deficiency.
    Such a sale need not be at auction, nor upon notice to the vendee, although, as bearing upon the question of the fairness of the sale, it is prudent to give notice.
    Under the terms of a contract raw linseed oil was to bo tendered to the vendee “in good cooperage,” butit appeared from letters exchanged between the parties that the oil was to be barrelled only for delivery.

      Bold,, that the fact that the oil was manufactured and existed in bulk at the time of a tender was a sufficient compliance with the terms of the written agreement. After the vendee had refused the tender, the vendor, finding that there was a demand for boiled linseed oil, subjected some of the raw oil (so tendered) to that process and sold it at an advanced price, the excess in which represented exactly the expense of boiling.

      Beld, that the result, so far as the rights of the vendee were concerned, was substantially the same, and that the boiling of the oil merely facilitated its sale and did not prejudice the rights of the vendor.

      Semble, that in passing upon a contract the court will give it a construction in accordance with the intention of the parties indicated by their acts done under it and their correspondence in regard to it.
    Appeal by the defendant, The National Linseed Oil Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 8th day of June, 1894, upon the verdict of a jury directed by the court after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 23d day of August, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    On September 20, 1892, the parties entered into a contract whereby the defendant, an Illinois corporation, during the period ending September 1, 1893, agreed to receive from the plaintiffs (who were engaged in the manufacture and sale of linseed oil at Buffalo, N. Y.) all the linseed oil manufactured by them which should not within that time be sold by them to others, and to pay for it within ten days the then Chicago price, in carload lots, less two per cent, and less two and three-fourths cents per gallon commission, provided. (1) that the defendant should not be required to receive in any one month more than 60,000- gallons, to be delivered in lots of 20,000 gallons or less ; (2) that the oil tendered to the defendant should be pure raw linseed oil well settled and in good cooperage í. o. b. cars at Buffalo; (3) that the sale by the plaintiffs to other parties should not be made at better terms or at less than the then established market price of like quality and quantity in the district where sold; (4) that upon all oil sold by the plaintiffs to others they should allow to the defendants one-fourtli of one cent per gallon.
    The plaintiffs delivered and the defendant received 60,000 gallons monthly up to and including June, 1893, and thereafter received none from the plaintiffs, who, in July and August, tendered in lots of 20,000 gallons each, 100,000 gallons to the defendant, which it refused to receive.
    In this action, founded upon an alleged breach of contract, the plaintiffs recovered $8,831.20 damages.

      A. Rebadow, for the appellant.

      Franklin D. Locke, for the respondents.
   Bradley, J.:

The obligation assumed by the defendant to receive linseed oil from the plaintiffs was dependent upon a tender of it by them. It was, by the contract, provided that the oil tendered should be in good cooperage f. o. b. cars at Buffalo. Did this necessarily imply intent that to render a tender effectual the oil should be in wooden barrels at the time the defendant was notified that the plaintiffs were ready and offered to make the delivery ? The oil was by the plaintiffs kept in iron tanks from which it was taken and put into barrels or other vessels required for use in its transportation. It appears that wooden barrels are not suitable to contain linseed oil in storage as it will more or less escape by leakage from them. The parties, however, recognized and adopted such a construction of the contract as did not require the plaintiffs at the time of the tender, nor until instruction for shipment was given them, to put the oil so tendered into barrels. This was the method adopted by the plaintiffs at the outset and understood by the defendant. By its letter to plaintiffs of date June 15, 1893, the defendant says: “Under the contract you have the right to deliver when we send you instructions, but we are not bound to receive on your tender.” By its letter of a later date it adds: “ Under omy construction of the contract we are at liberty at any time during the month to give you shipping instructions according to our convenience. Therefore, all that is necessary for you is to give us notice of the quantity that you intend to tender, then in due time and at our convenience we will tell you what to do with it.”

Soon after the contract was made the defendant expressed a desire to have oil shipped in oil-tank cars, which the plaintiffs consented and made preparations to do, and a considerable quantity of oil in that manner was delivered to the defendant and shipped _ to such places as the defendant directed. The tank cars were furnished by it or under its direction. By its letter to the plaintiffs of date June 23, 1893, the defendant, after referring to the fact that a tender of 20,000 gallons had been made, says:' “ Blease have the amount above named, 20,000 gallons, put in first-class cooperage.” Then follow some further instructions. It thus appears that it was contemplated by the parties, and such was the practical construction of the contract, that it was only requisite that the plaintiffs have the oil in their tanks ready to be put into vessels for transportation at the time of the tender or offer to deliver.

And inasmuch as the plaintiffs had on hand ready for delivery the several quantities of 20,000 gallons each, which they tendered in July and August, 1893, and constituting the 100,000 gallons which they also had on hand for delivery, the tender to the defendant was effectual. Not only the reasonable construction of the contract, but that practically given to it by the parties in the progress of its performance, was such as not to require that the oil be in coojierage at the time of the tender. The readiness at that time to put it in barrels when notified of the defendant’s acceptance was all that was essential to give effect to the offer to deliver. (Hayden v. Demets, 53 N. Y. 426.) The defendant, by its refusal to receive the oil, was put in default, and became liable at the election of the plaintiffs to pay for it or to pay such damages as they sustained by the breach of the contract on the part of the defendant. In due time after the default of the defendant the plaintiffs proceeded to sell and sold. that oil on the account of the defendant, and assuming, as the evidence permits, that they sold it fairly and for the best price they could get for it, the plaintiff's were entitled to recover the deficiency, that is to say, the amount derived from the sale, less than that to which they were entitled by the contract. (Dunstan v. McAndrew, 44 N. Y. 72; Mason v. Decker, 72 id. 595.) Nor was it necessary that the sale be at auction or upon notice to the defendant, although as bearing upon the question of fairness of a sale in such case it is usually prudent to give such notice. (Pollen v. Le Roy, 30 N. Y. 549; Van Brocklen v. Smedllie, 140 id. 70.)

The* contract provided that the defendant should receive all the linseed oil manufactured by the plaintiffs which shall not be sold by them to other parties.” It is now urged on the part of the defendant that the plaintiffs did not show upon the trial that they had made any effort to sell the oil tendered before it was offered to the defendant. No such question was specifically raised upon the trial. If it had been and such fact had been deemed essential, it. may be that it would have been supplied by proof. It may be observed that by the contract the sales other than to the defendant were so restricted as not to permit the plaintiffs to sell to others “ on better terms or at less than the established market price,” which it seems was practically regulated by the defendant’s circulars. While it was contemplated by the contract that the plaintiffs would under such restrictions make sales to others, it did not in terms impose upon them an effort to do so. The apparent purpose of the contract was to give to the defendant the control of the market for the oil manufactured by the plaintiffs, and with a view on the part of the defendant to realize a profit from its performance. The contention that the want of evidence of an effort to sell the oil in question to others before the tender to the defendant is in the way of the plaintiffs’ recovery is not supported by the record on this review.

The contract provides for the sale of raw linseed oil only. After the default of the defendant a portion, less than one-third of the oil, was for the purposes of the sale thereof boiled. It is insisted on the part of the defendant that the part of it subjected to that process was thereby taken from the operation of the contract, and, therefore, the defendant is not chargeable with the deficiency arising from the sale of that portion of the oil.

It is true that tlie defendant cannot be charged to its prejudice by the conversion from raw into boiled oil.

It appears to have been no detriment to the defendant. The evidence tends to prove that there was a demand for boiled oil, and that this was boiled to facilitate the sale. The price for which it sold was three cents per gallon more than that for raw unboiled oil, and such increased price was just the expense of boiling the oil. The result, in which the defendant is concerned, was the same as if a market could have and had been found for it unboiled. The objection relating to the sale of the oil which was subjected to that process for market and founded upon that fact is not as matter of law tenable. This was deemed by the plaintiffs necessary to render it readily marketable and to enable them to consummate the sale which they by reason of the defendant’s default were permitted to make on its account.

The further question has relation to sales of oil made by the plaintiffs to the New York, Lake Erie and Western Railroad Company in the period covered by the contract. . It is insisted that such sales were made for less than the established prices and in violation of the contract. It seems that the prices were deemed fixed by the schedules or circulars issued from time to time by the defendant, and that those were the prices of the oil delivered at the places where the buyers accepted it, and when transported to them they took it at those prices, less the freight charges upon it. In other words, the freight was deducted from such prices. The sales made to the railroad company were made for delivery at certain points on its line, and although it was taken by that company upon its cars at Buffalo, the oil was transported upon its road to the several points designated, and to treat the oil as delivered at those points at the established price' the freight was deducted from it. This practically placed the railroad company as a purchaser on the same footing as that of other purchasers. The oil sold to the company amounted to only about $3,000, and if it had been treated as delivered at Buffalo at the established price, only a small sum more than was would have been realized from those sales. There seems to be no substantial reason for the charge that the plaintiffs in the sales to the railroad company failed in tbe observance or performance of the contract on their part. The motion in behalf of the parties at the close of the evidence for the direction of nonsuit and verdict raised questions of law only, and as no request was made to submit anything to the jury, the entire case was left to the consideration of the court, and in the direction of the verdict for the plaintiffs the court is deemed to have determined adversely to the defendant whatever questions of fact there were for consideration. (Ormes v. Dauchy, 82 N. Y. 443; Dillon v. Cockcroft, 90 id. 649.)

No other question requires consideration.

The judgment and order should be affirmed.

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

Judgment and order affirmed.


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    James Blass and Anna B. Fuller, as Executrix, etc., of John W. Fuller, Deceased, Respondents, v. Georgeanna B. S. Terry, Appellant, Impleaded with Sarah L. Schofield.

      Deed — delivery and acceptance — foreclosure of a mortgage — grantees in this State who have assumed the mortgage not liable for a deficiency adjudged to exist by the judgment in a foreign State — default of the mortgagor, the grantor, no defense to the grantee.

    The delivery and acceptance of a deed are essential to its validity. The record of the deed is only prima facie evidence of delivery and acceptance.
    Where a clause in a deed, purporting to create an assumption of a mortgage by the grantees, is inserted without their knowledge and is not subsequently in some manner approved by them, the grantees are not charged with any liability thereby.
    Where the premises in question are situated in another State and the mortgage is there foreclosed, the grantees, residents of this State, liable upon an assumption clause, cannot be charged in the action in the foreign State with a deficiency when they have not been personally served with process.
    The proceeding is as to them in rem, and a judgment in the foreign State charging them with a deficiency would be a nullity.
    Where a grantee assumes and agrees to pay half of a mortgage, and the grantor agrees to pay the balance, the default of the grantor (original mortgagor) to make payment of the part of the debt agreed to be paid by him is not a defense to the grantee.

      Appeal by tbe defendant, Georgeanna B. S. Terry, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 29th 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 7th day of June, 1894, denying her motion for a new trial made upon the minutes.
    On August 24,1887, Cornelius C. Howell made to John W. Fuller and James Blass a mortgage uj>on certain land in Lucas county, Ohio, to secure the payment of his three promissory notes of that date respectively for the sums of $1,500, $3,750 and $3,750, payable respectively August 24,1887,1888 and 1889. Howell made to Georgeanna B. S. Terry and Sarah L. Schofield a deed of the undivided half of such land. Following the granting provision of the deed was the following: “ I hereby covenanting that the title so conveyed is clear, free and unincumbered, and that I will warrant and defend the same against all claims whatsoever, it being understood and agreed that the grantees herein, Georgeanna B. S. Terry and Sarah L. Scofield, as part of the purchase price herein, assume and agree to pay thirty-seven hundred and fifty dollars ($3750) of the mortgage incumbrance on the above-described property, together with the interest thereon; the balance of said incumbrance is to be paid by the grantor, Cornelius C. ITowell, herein, and the covenant of warranty herein on his part extends, so far as said mortgage is concerned, only to the half of said mortgage which is to be paid by him, the said Howell.”
    In an action for the foreclosure of the mortgage a decree was perfected in the Court of Common Pleas of Lucas county, Ohio, June 18, 1889, by which it was determined that there was then due and unpaid on the mortgage debt $7,865.63, and a sale of the premises was directed. They were sold on August 31, 1889, for $4,200, leaving a deficiency of $3,965.28. This action was brought against those grantees in the deed to recover the amount of such deficiency with which they were alleged to have become chargeable.
    The defendant Terry alone defended.

      Charles A. Pooley, for the appellant.

      L. L. Lewis, Jr., for the respondents.
   Bradley, J.:

On the motion for nonsuit the defendant’s counsel sought to raise the question that the action could not be maintained in behalf of Anna B. Fuller as executrix because her appointment as such was only by an order of the Probate Court of Lucas county, Ohio, and it is so urged here. The fact that she was appointed by the order of that court appears upon the face of the complaint. The defendant at first took the objection by demurrer that she had not legal capacity to sue, but it appears that before the trial the objection thus taken was waived. It, therefore, is not available on this review.

It is insisted that the deed was not delivered to or accepted by the grantees named in it; that they never consented to assume liability to pay any portion of the mortgage debt, and that the clause to that effect in the deed was inserted without any permission on their part. The delivery and acceptance of a deed are essential to its validity. The record of it is only prima facie evidence that it has been delivered and accepted and may be rebutted. The deed was recorded in the county where the land was situated. There is no evidence, other than such as may be derived from inference, that the deed came to the hands of the grantees or of their husbands, who transacted the business in the names of their wives with the grantor, in relation to the land. There is, however, evidence lending to prove that the purchase was made in the names of Mrs. Terry and Mrs. Schofield, and that they understood that it was done, and that a conveyance of the land was to be made to them. But it does not appear by whom the deed was taken or transmitted to the county recorder for record. If, however, the clause in the deed, purporting to create an assumption on the part of the grantees of payment of a portion of the money secured by the mortgage, was inserted in the deed without their knowledge or consent, and not in some sense approved by them, they did not become charged with liability by it. (Kilmer v. Smith, 77 N. Y. 226; Dey Ermand v. Chamberlin, 88 id. 658; Kelly v. Geer, 101 id. 664.) The defendant Terry and her husband testified to the effect that the assumption clause was put into the deed without their knowledge or consent, and that they never were advised of it until this action was commenced. There is evidence tending to prove that the deed when and as drawn was read over in the presence of Mr. Terry, who conducted the business of the purchase for and in the name of his wife, and there was some other evidence bearing upon the subject of his knowledge in that respect. The question, therefore, whether or not the defendant Terry was chargeable with knowledge of such assumption clause and with having assented to it, was one of fact. No request was made to submit any question to the jury. At the close of the evidence the counsel for each of the parties requested the direction of a verdict. By so doing and by not asking it they waived the right to have any question submitted to the jury, and treated the evidence as presenting only questions of law. Thereupon the court in directing the verdict must be deemed to have determined the questions of fact against the defendant. (Koehler v. Adler, 78 N. Y. 287 ; Kirtz v. Peck, 113 id. 222.)

The defendants’ counsel objected to the introduction in evidence of the judgment roll in the foreclosure action, and it is also insisted that as there was no allegation in the petition in that action charging Mrs. Terry and Mrs, Schofield with liability, and the judgment for the deficiency was against Howell, the mortgagor, they cannot be charged with it. Assuming that the judgment was not legitimately evidence against the defendant she was not prejudiced by it. The assumption clause in the deed purported to create a liability of the grantees to the extent of $3,750, and interest. This would have been the apparent situation presented if the judgment roll, including the sheriff’s certificate of sale, had not been introduced, This reduced the amount of their liability so far as the proceeds of the sale were applicable to it. As these grantees were not residents of the State of Ohio, nor personally served with process in that State in the foreclosure action, it was as against them a mere proceeding m rem., and they could not be personally charged by any judgment which might be rendered in it against them. It would in that respect have been a nullity.

There was, therefore, neither occasion nor propriety in seeking in that suit, by allegation of their liability upon the assumption clause, to charge them personally upon it by the decree. In that respect the mortgagor alone was there chargeable and charged with the deficiency, between whom and the plaintiffs he was liable for the entire amount of it. The defendants were at liberty to prove that the amount due and unpaid oil the mortgage debt was less than that adjudged by the decree against Howell, the mortgagor, or to prove that the deficiency was less than the amount appearing by the record of the decree, and of its execution in that action. And defenses existing against Howell were available to the defendants as against the plaintiffs in so far as they rested in fraud in inducing the grantees to make the purchase and take the conveyance, or in a want of title in him to convey by the deed, or the failure of consideration for the assumption of liability to pay such portion of the mortgage debt. (Dunning v. Leavitt, 85 N. Y. 35; Crowe v. Lewin, 95 id. 423; Loeb v. Willis, 100 id. 231.) But the contention that, in view of his covenant in the deed, the default in payment by the grantor of the part of the mortgage debt for him to pay constitutes a defense for the defendant, cannot be sustained.

The only other question requiring consideration has relation to the amount of recovery.

The defendant and Mrs. Schofield had title to an undivided half of the land subject to the mortgage. They assumed by the clause of the deed the payment of $3,750 of the mortgage debt. At tlie time of the foreclosure the amount remaining unpaid was in the two notes of the mortgagor of $3,750 each, and the amount by the decree adjudged unpaid was $7,865.63, with interest at the rate of six per cent from June 17, 1889.

The sale August 31, 1889, produced the net sum of $3,997.35 to apply, and it was applied on the mortgage debt. The deficiency was ($7,865.63 and interest from June 17 to August 31,1889 [$97], less $3,997.35, the net proceeds of the sale) $3,965.28.

The sale was made of the mortgaged premises as an entirety. Half of the proceeds was the product of the undivided half to which the defendant and Mrs. Schofield had the title, and they were liable for only one-lialf the mortgage debt then unpaid: They were, therefore, entitled to the benefit of one-half of the proceeds of the sale applicable to the reduction of the mortgage debt. Such portion in legal contemplation as well as in fact was paid from their share of the property. The trial was had April 26, 1894, and the verdict was for $4,949.38. The judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiffs stipulate to reduce the recovery exclusive of costs to $2,536.08, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.

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

Judgment and order reversed and new trial granted, costs to abide event, unless the plaintiffs within twenty days stipulate to reduce the recovery exclusive of costs to $2,536.08 as of the date of its entry, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.


author: Davy, J.:

text:
    Daniel Schout, Jr., Appellant, v. The Conkey Avenue Saving, Aid and Loan Association, Respondent.

      Loan association — withdrawal of money from the association by a member and director — when he is estopped by his neglect of duty as director from doing so to the injury of innocent stockholders.

    Where one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice and public policy unite in requiring of him such a degree of prudence as men prompted by self-interest generally exercise in their own affairs, and it is a gross breach of duty not to bestow them.
    An absent director may be held equally responsible with his associates in the case of extreme neglect of duty in omitting to attend the board meetings, or where the wrongful acts of his associates have come to his knowledge and he acquiesces and takes no steps to avert their injurious consequences when by due diligence he might have prevented the commission of the wrongful acts.
    In an action brought by a member who was also a director of a loan association, it appeared that he had filed a written notice withdrawing his moneyed interest in the association in pursuance of the articles of association, and that he based his right to recover upon the ground that the money which was in the treasury when his withdrawal notice was filed, instead of being applied upon his claim, was loaned to the members of the association contrary to the rules thereof.
    It appeared that the plaintiff approved of one of the loans, which was made contrary to the rules of the association; that he attended the meetings of the board from time to time during the period when the other irregular loans were being made; that as a director he had access to the books of the association at all times, and that he knew, or ought to have known, that his associates were making loans which were unauthorized.

      Held, that if the plaintiff had attended properly to his duties as a director he would have known the nature and extent of the business that was being transacted by the board and that unauthorized loans were being made;

      That it would he unjust to permit him to take advantage of his own negligence to the injury of innocent stockholders who had filed their applications of withdrawal, and that he was estopped from maintaining the action.
    Appeal by tlie plaintiff, Daniel Sellout, Jr.,- from a judgment of tlie Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of Monroe on the 26th day of February, 1895, upon the decision of the court, rendered after a trial before the court without a jury at the Monroe Circuit, dismissing the plaintiff’s complaint.

      Herbert J. Stull, for the appellant.

      H. Nelson Peck and Edwin McKnight, for the respondent.
    Present — Lewis, Bradley, Warner and Ward, JJ.
    Judgment affirmed on opinion of Davy, J.. at Circuit.
   The opinion of Davy, J., was as follows:

Davy, J.:

This action is brought to recover $1,210.35, it being the amount credited to the plaintiff upon the books of the defendant for principal and dividends. It appears from the evidence that the .plaintiff, who was a member of the defendant loan association, on the 16th day of December, 1891, filed a written notice withdrawing his moneyed interest in the association. Article 14, section 2 of the articles of association provide that members, not having received a loan, may withdraw one or more of their shares from the association at any time by giving notice in writing to the board, and tlie liability to pay further dijes and the right to dividends shall cease with the filing of said notice. Applications for withdrawals shall only be received in the regular order of business, and the principal theretofore paid on such share or shares shall be refunded to such members as soon as the necessary funds are in the treasury.

The plaintiff bases his right to recover in this action upon the ground that the money which was in tlie treasury when his withdrawal notice was filed, instead of being applied upon his claim, was loaned to its members contrary to the rules of the association. There can be no question but that the officers and members of the defendant were bound to observe the rules prescribed in its constitution and by-laws, which' were printed in a book issued to every shareholder, who was presumed to know what they were. The powers and duties therein expressed and imposed were binding upon the association and its members. The defendant, therefore, had no legal right to disregard them by appropriating any of the money in its treasury to the making of loans while the plaintiff’s withdrawal notice was on file until his claim had been paid in full.

In the case of Wolfe v. The Conkey Avenue Saving, Aid & Loan Association (75 Hun, 203), which was an action against this same defendant, Dwight, P. J., says: The defendant had no right, “under its articles of association, to appropriate any of its funds to the making of loans while withdrawal notices were on file which had not been honored.” The plaintiff, therefore, under the decision of the court in the case last cited, was entitled to the payment of his claim when reached, and if the directors disregarded the rules of the association and loaned money to its members which should have been applied in payment of its indebtedness to the plaintiff, the defendant is liable in this action, unless the plaintiff has waived his right to the fund, or has done some act which, under the rules of equity, estops him from maintaining this action.

It appears from the evidence that at the time the loans were made,, the plaintiff was one of the directors of the defendant and approved of the Ross loan, which he now concedes was.made contrary to the rules of the association. He attended the meetings of the board from time to time, during the period that the other irregular loans were being made. As a director he had access to the books of the association at all times, and he knew or ought to have known that, his associates were making the loans which he now contends were unauthorized. While directors, as a general rule, are not liable for errors of judgment, unless they are grossly wrong, yet, by accepting the trust, they are obliged to faithfully execute it. The plaintiff, therefore, by accepting the office of director, was required to execute it with fidelity and reasonable diligence. It was his duty to attend the meetings of the board with reasonable regularity and to exercise ordinary diligence in ascertaining the financial condition of the association. He knew that the Ross loan, which received his approval, was irregular. That fact was sufficient to have put any prudent man, who was acting as a director, on his guard, and upon inquiry as to whether other loans of that character were being made. If he grossly neglected his duties he cannot claim protection on that ground, but must be held, in the eyes of the law, just as responsible for the irregular loans as the other directors. The learned counsel for the plaintiff seek to avoid the force of an equitable estoppel by claiming that the plaintiff was ignorant of these loans with the exception of the Boss loan. The evidence in the case does not warrant me in reaching such a conclusion. It appears that he attended at least fifteen meetings while he was a director, and one of the officers testified that he attended the meetings of the board regularly. It will not do to permit him to plead ignorance on the ground of neglect of duty. The rule is, that an absent director may be held equally responsible with his associates in the case of extreme neglect of duty in omitting to attend the board meetings, or where the wrongful acts of his associates have come to his knowledge and he acquiesces and takes no steps to avert their injurious consequences, when by due diligence he might have prevented the wrongful acts from being.done. (Knowlton v. Congress & Empire Spring Co., 57 N. Y. 518-537; Knox et al. v. Baldwin, 80 id. 612; Robinson v. Smith, 3 Paige, 222; Hyatt v. Clark, 118 N. Y. 567; Adams v. Mills, 60 id. 538 ; Lindner v. Sahler, 51 Barb. 323; Briggs v. Easterly, 62 id. 51; Bronson v. Dimock, 4 Hun, 614.)

The law seems to be well settled that even a stockholder in a corporation who participates in an unauthorized act prejudicial to his interest and acquiesces in the transaction is estopped from afterwards complaining either in his own behalf or in the behalf of the corporation.

It was held in Sheldon H. B. Co. v. Eickemeyer H. B. M. Co. (90 N. Y. 607) that where stockholders 'with full knowledge ratify a transaction and affirm the settlement, the act, though beyond the power given the trustees by the charter, could not be subsequently avoided by the stockholders, or by the corporation. The learned judge who wrote the opinion of the court says : “ It is not needed in such a case that there be an express assent on the part of the stockholders to work an equitable estoppel upon them. When they neglect to promptly and actively condemn the unauthorized act, and to seek judicial redress after knowledge of the committal of it, this will be deemed an acquiescence in it.” (Kent v. The Quicksilver Mining Co., 78 N. Y. 159-187.)

The rule in regard to directors is much more strict. They are intrusted with the management of the corporate business, and are required to exercise the same degree of diligence and care that men of ordinary prudence and skill usually exercise in the management of similar business for themselves. The business of the defendant could not be done except by its directors, who are required to exercise a general supervision over the affairs of the association. The shareholders had a right to assume that the directors would do their duty, and if they did not they had a right to hold them personally liable for a gross neglect of duty. The law on this subject is clearly stated by Judge Earl in Hun v. Cary (82 N. Y. 65). He says: “ The trustees are bound to observe the limits placed upon their powers in the charter, and if they transcend such limits and cause damage they incur liability.” He also says that “when one deposits money in a savings bank or takes stock in a corporation, thus divesting himself of the immediate control of his property, he expects, and has the right to expect, that the trustees or directors, who are chosen to take his place in the management and control of his property, will exercise ordinary care and prudence in the trusts committed to them; the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice and public policy unite in-requiring of him such a degree of care and prudence, and it is a gross breach of duty — crassa negligentia — not to bestow them.”

If the plaintiff in this action had attended to his duties properly as a director, he certainly must have known the nature and extent of the business that was being transacted by the board, and that unauthorized, loans were being made. It would be unjust, therefore, to permit him now to take advantage of his own negligent acts to the injury of innocent shareholders who have filed their applications of withdrawal. In Knox et al. v. Baldwin (supra) Judge Danforth says a director cannot be permitted, either alone or with his associates, to “ pursue a remedy which, if enforced, would enable him to profit by his own wrong or negligence.” The plaintiff, therefore, is estopped from maintaining this action, and must wait until the defendant collects a sufficient sum' to pay his claim, as provided by its constitution and by-laws.

The complaint, therefore, is dismissed, with costs.