author: By the Court.—Sanford, J.

text:
    SUSAN R. WRIGHT, Plaintiff and Respondent, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Defendant and Appellant.
    LIFE INSURANCE POLICY.
    EFFECT OF NON-PAXMENT OF ANNUAL PREMIUM.
    Proof that the amount of one of the annual premiums was charged to the account of an agent of the company, and marked ¡laid, on or about the time the premium became due, supported by tbe additional fact that the company served upon the assured a notice that the premium of the succeeding year would fall due on a specified time, is not sufficient to establish in judgment of law a payment to the company, in the absence of any proof of actual payment to the agent of the company of the annual premium so charged and credited.
    In the case of the introduction of a large amount of irrelevant and immaterial testimony under objection and subject to exception, in regard to a claim that was subsequently dismissed and the jury instructed by the court to disregard such testimony, yet if the evidence was of a character likely to influence and prejudice the jury in regard to a party, and to their conclusions upon the remaining facts submitted to them, a new trial should be granted, because of the admission of such testimony (Erben v. Lorillard, 19 J7. 7. 299).
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    The opinion of the court reviews the practice and action of life insurance companies in their dealings with the public through their agents and otherwise.
    This action was brought to recover five thousand dollars on a policy of life insurance, and was tried before the chief justice and a jury, on June 9 and 10, 1875. The verdict was for the plaintiff.
    The defendants appeal from an order denying their motion for a new trial, made on the minutes of the court, and from a judgment against them entered on the verdict.
    The policy was issued by the defendants, on May, 13, 1869, on the life of George Wright, the plaintiff’s husband, for five thousand dollars, payable either to the said George Wright, his executors, administrators, or assigns, on May 13, in the year 1889 ; or, in case of his death before that time, to the plaintiff, her executors, administrators, or assigns, in sixty days after due notice and proof of death.
    The policy was issued and accepted by the assured upon the express condition therein stated that if the premiums should not be paid on or before the days therein mentioned for the payment thereof, at defendants’ office in the city of ifew York, or to agents, when they produce receipts signed by the president, secretary or actuary, then and in every such case there should be no liability for the sum assured, or any part thereof, and the policy should cease and determine, excepting only in the case of a surrender thereof as therein expressly provided, and that in every case where the policy should cease and determine all payments thereon should be forfeited.
    The provision with respect to surrender, above referred to, was as follows: “If, after premiums upon this policy for not less than three complete years of assurance have been duly received by this society, this policy should cease in consequence of default in payment of a sufficient premium, this society will on due surrender of this policy, and of the profits thereon, issue, in lieu thereof, provided such surrender be made within three months of the date of such default, another paid-up policy, payable as herein provided, for an amount bearing the same proportion to the original sum hereby assured as the number of complete years for which premiums have been paid at the date of such surrender bears to the total number of years comprised in the whole term of this policy.”
    The first premium, for 1869, was paid to George Phipps, an agent of the defendants, when the policy was issued ; the second, for 1870, was paid at defendants’ office, on May 13 in that year. There was no proof of any subsequent payment. Evidence was introduced, subject to defendants’ objection and exception, tending to show, by the admission of their deceased president, made after the death of the assured, that the premium for 1871 had been charged on their books to George W. Phipps, the agent through whom the policy was issued ; and that in 1872 a card was issued by defendants, and left at the office of the assured, notifying him that the premium on the policy would fall due on May 13 in that year. S"o payment of premium was made in 1872, and Wright, the plaintiff’s husband, died on May 20 in that year.
    At the close of the evidence the chief justice dismissed the complaint, in so far as it alleged a cause of action on the policy for the recovery of its full amount, five thousand dollars, on the ground that the liability of the defendants for the payment of that amount ceased and determined, pursuant to the terms of the contract, on May 13, 1872, when default was made in the payment of the premium then accruing ; but with respect to the claim-of the plaintiff to recover three-twentieths of that sum, as the amount of the “ paid-up policy,” for which the contract contingently provided, he instructed the jury as follows: “If the premium for the year 1871 was actually paid by the assured to the company, or the company charged the amount to Mr. Phipps, the agent who procured the insurance, and credited the amount to the assured, in either of these cases it would, in judgment of law, be a payment to the company, so as to prevent a forfeiture of the policy, and entitle the assured to a paid-up policy ; and, therefore, if you shall find that in one or, the other of the modes I have indicated, the premium for the year 1871 was paid, the plaintiff is entitled to recover in this action the sum'" of eight hundred and ninety-four dollars and twenty-seven cents, that being the amount of a paid-up policy and the interest thereon.”
    And further, that if the jury believed from the evidence “that the premium due upon this policy on May 13,1871, was paid, not actually paid, but paid in effect as between the company and the assured, by giving credit to the assured for the amount of the premium, or by charging it over to Mr. Phipps, their agent, so as to make it in effect a payment to the company, as between- the company and the assured,” it would be their duty to render a verdict in favor of the plaintiff for the amount above stated.
    The jury rendered a verdict for the plaintiff for eight hundred and ninety-four dollars and twenty-seven cents.
    Other facts which appeared in evidence, and which are proper to be considered on the appeal, are stated or referred to in the opinion of the court.
   By the Court.—Sanford, J.

I am of opinion that the learned chief justice should have directed a verdict for defendants as requested at the close of the evidence, and that a motion for a new trial on the minutes should have been granted, for the reason that there was no proof of any payment to the defendants on or before May 13, 1871, of the premium which accrued and was payable on that day, and no sufficient proof of any facts which, in judgment of law, can be deemed equivalent to such payment, so as to entitle the assured to another paid-up policy for an amount bearing the same proportion to the original amount assured as the number of complete years for which premiums were paid bears to the total number of years comprised in the whole term of the policy. It is not claimed or pretended that there was any actual payment of the premium for 1872, or any evidence of such payment. Indeed, the learned chief justice so assumed and charged. In response to a request by defendant’s counsel, that the court should charge that “ if the premium for 1871 was not paid, the plaintiff can not recover, even for the proportionate paid-up policy, unless some waiver of that payment can be shown,” the court stated that this proposition was equivalent to what he had already charged, and added: “I have said to the jury that it must be what in judgment of law would amount to a payment between these parties, not an actual payment,/»)’ there is no evidence of actual payment.” We have therefore only to consider whether there was sufficient evidence in the case to show that the company did charge this amount to the agent, and if so, whether this fact, if uncontradicted, can be regarded as giving credit to the assured, and thus constituting in judgment of law a payment of the premium.” The only testimony on this subject is that of the plaintiff’s attorney, Mr. Stilwell, who testified to two interviews had by him with Mr. Alexander, the defendants’ president. When the policy was handed to him by the plaintiff for collection, he called at the office of the company, and saw the president, Mr. Alexander, and asked him what the difficulty was. Mr. Alexander went with him to the enclosure where the book-keepers were in the office; he called some gentlemen there; they looked over the book, and Mr. Alexander then said that the last premium on this policy (that of May 13, 1872) had not been paid, and that it was canceled. Witness asked if there were not dividends upon it sufficient to keep it alive the ten days the last premium was overdue, the premium being due on May 13, and he having died on May 20. Mr. Alexander re plied that the premiums were payable yearly in advance, and the premium not having been paid when it was due, the policy was canceled, and of course they were not entitled to any dividends on it. Witness stated to Mr. Alexander that by the terms of the policy the plaintiff was entitled in any event to seven hundred and fifty dollars ; that even if this last payment were not made, she was entitled to a paid-up policy for three-twentieths of the amount. Mr. Alexander said she would have teen entitled to that if she had surrendered the policy within the three months; but the three months had expired, and therefore she had no rights.

Thus far the conversation had no reference to the premium which fell due on May 13, 1871, and the defendants’ president had merely expressed an opinion as to the rights of the parties, founded upon the assumption that only the premium which accrued on May 13, 1872, remained in arrear. The payment or non-payment of any prior premium was not under discussion, and no reference to such premium was made. Mr. S til well controverted the correctness of Mr. Alexander’s opinion, and was thereupon referred by him to the counsel for the company, Mr. Lord. After considerable discussion with the witness during a period of two or three weeks thereafter, Mr. Lord, or Mr. Day, his partner, as counsel for the company, informed the witness that he had advised the company to settle for seven hundred and fifty dollars, and that they would pay that amount. The next day, witness, who had in the meantime obtained the consent of his .client to accept that amount, called on Mr. Lord, expecting to get the seven hundred and fifty dollars, but was then informed by Mr. Lord or Mr. Day that “they had come across a new difficulty; that the premium for 1871, the year previous, had not been paid.” At the request of witness, the plaintiff then made search for a receipt for that premium, but she could find no receipt for it. She brought, however, to the witness a card, which he subsequently presented to Mr. Lord or Mr. Day, saying: “ Here is a notice to pay the last premium.” Further discussion ensued, and witness was finally told that they would not pay anything. He then went back to the company, saw Mr. Alexander, and asked him why they would not pay this seven hundred and fifty dollars. Mr. Alexander again went back to the enclosure, where the book-keepers were, looked over some books, and said, “It is one of Mr. Phipps’ policies, and this premium for 1871 had been charged up to Mr. Phipps, and so marked paid, and on the settlement of the accounts between Mr. Phipps and the company, or for some other reason, it had been marked off, and for that reason the policy is void, and we will not pay it.” Witness added : “ I believe that was all in regard to it; all that I remember; he went back to the book-keeper, who looked over the books, had a talk with the person who had the books, and. referred to the account, and said that the account had been marked paid in 1871, and that was the reason he told me before that the premium had not been paid.” Upon cross-examination, the witness testified as follows:

Q. “When you had this later interview with Mr. Alexander, the president, after your last interview with Mr. Day, in which Mr. Day told you that they would not settle, and that they had discovered that the premium for 1871 was not paid, are you sure that Mr. Alexander told you that the premium for 1871 had been charged to Mr. Phipps 8 ”
A. “I do not say it had been charged to Mr. Phipps. I am sure he told me the account had been marked paid upon the books, and by way of explanation stated this I speak of.”
Q. “ State it again 8 ”
A. He went back to this enclosxire where the books were, and called one of the book-keepers, or somebody who brought down the book there, and he and Mr. Alexander looked over the books together, and then he came to me, and said, 61 asked in regard to that; ’ I said, ‘ Yoxx told me the other day that the trouble was in regard to the last premium.’ 6 Well,’ he said, ‘ that former premium of 1871 had been marked paid upon the books.’ He said that is one of Mr. Phipp’s former policies, and it had been charged up to Mr. Phipps.”
Q. “ Are you sure he said that 8 ”
A. “That is what I gathered from what he said.”
Q. “What were his words, as near as you can recollect 8 ”
A. “That is as near as 1 can recollect—that it had been charged up to Mr. Phipps.”
Q. “Are you sure that you were speaking about the premium of 1871 %
A. ‘ ‘ Yes sir. There had been no question about that at all. I claimed that we were entitled to three credits upon the policy, and we had negotiated .upon that, and I had called to settle upon that, and when I finally went back it was to ask how it was that this previous premium was not paid, and he said the premium had been marked paid, whether it was charged up to Mr. Phipps ; those were the particular words. 1 do not know, but that is what I gathered from him.”

I think the fair import of all this testimony, and the only reasonable interpretation of it is, that Mr. Alexander, at the time of his first interview with Mr. Stilwell, was not aware that the premium for 1871 was in arrear, and that therefore he then put his refusal to pay the policy solely on the ground of default in the payment of the premium due on May 13 1872 ; that, at the second interview, while insisting that the policy had, in fact, ceased on May 13, 1871, by reason of a default in the payment of the premium accruing on that day, he endeavored to account for the erroneous impression under which he had labored at the former interview, and to explain his omission then to assign this default as his ground of objection to the plaintiffs claim, by suggesting that he had been misled by entries or marks on the books showing, or tending to show, that the premium due in 1871 had been charged to Mr. Phipps, the agent of the company, and bad accordingly been marked paid ; but that on the settlement of Mr. Phipps’ account it bad been marked off; and that the policy was void. He certainly did not mean to be understood as then admitting that, by reason of such entries or marks, the policy was continued in force or kept alive after May 13, 1871, since he expressly asserted, after concluding his explanation, that by reason of what he had stated, the policy was void.

But assuming that Mr. Alexander did unqualifiedly state that this premium had been charged to Mr. Phipps, the agent, and that such charge was, in point of fact, made on the company’s books, does such a charge when made, so far as appears, without the knowledge of the assured, without the knowledge or consent of Mr. Phipps himself, without any corresponding entry to the credit of the assured, or of Mr. Phipps without proof as to the time when, or the circumstances under which it was made, warrant the inference that in making it the company intended to give, or did give, credit to the assured for its amount as of the date when the premium was payable; discharged the assured from any obligation to pay the premium, if the charge to Phipps was made before the premium became due, or exonerated the assured from the consequences of default, if default had already occurred % The learned judge seems to have so held, for he charged the jury to look well at the evidence and satisfy themselves whether the company did charge this amount to the agent, thus giving credit to the assured, and thus constituting, in judgment of law, a payment of the premium. I can not yield assent to the proposition that the mere fact of a charge or entry in the account of Mr. Phipps, such as Mr. Stilwell testifies Mr. Alexander says was made, would of itself, in judgment of law, constitute a constructive payment of the premium, and operate to exonerate the assured from the consequences of a previous or subsequent actual default.

By the expressed conditions of the policy, “renewal premiums may be paid to an agent, but only on the production of receipts signed by the president, secretary, or actuary, who are alone authorized to sign receipts on the part of the company. No payment made to an agent without such receipt given in return by him is considered valid.” May it not have been the practice of the company—certainly such a practice would have been a safe and proper and convenient precaution—to charge their agents, on entrusting them with such receipts, with the amount of the premium therein specified, thus holding them accountable either for the premium when collected, or if not collected, for the return of the receipt ? And whether such a practice existed or not, would it not have been competent for the company in any individual case, for reasons of its own, to adopt that course ? May it not have been adopted in this particular case ? And if it were adopted, would the charge thus made operate to give credit to the assured, or constitute in judgment of law a payment of the premium % Again, suppose Mr. Phipps, as agent of the company, had seen fit, for reasons of his own, to assume as between the company and himself, and without the knowledge of the assured a liability for the premiums accruing on policies issued through his agency, and on the payment of which he would become entitled to commissions, would the assumption by him of such a liability and the charge to him on the books of the company of a premium about to accrue or already in default, exonerate the policy-holder from all obligation to pay such premium, or would it relieve or discharge him from the forfeiture of the policy consequent upon such default \ If not, as between the company and the assured, such a charge was not1 giving credit to the assured,’ and did not ‘ constitute in judgment of law a payment of the premium.’ I think that, as between the company and the assured, the evidence of Mr. Stilwell was insufficient to show either an actual or constructive payment of the premium which accrued on May 13, 1871, and would not, if uncontradicted, sustain a judgment for the plaintiff. The jury were instructed to render a verdict in favor of the plaintiff for the amount of the contemplated paid-up policy, with interest, if they believed the premium to have been not actually paid, but paid in effect, as between the company and the assured, by charging it over to Mr. Phipps, their agent, so as to make it in effect a payment to the company, as between the company and the assured. And they had just previously been instructed that the charge to Phipps, if made, would be giving credit to the assured, and would constitute in judgment of law a payment of the premium. These instructions seem to^rne to be erroneous.

But if under these instructions it was proper to submit to the jury the question of a constructive payment, in other words, the question whether such a charge was or was not made on the company’s books, or if the language of the learned justice admits of such a construction, as I think it does not, but, on the contrary should be regarded as deciding that question adversely to the defendants, as matter of law, if it was proper to submit to the jury the question whether such charge, if made, operated, as between the assured and the company, as a credit to the asssnred, and as a payment, in effect, though not in fact, the evidence to the contrary, to which the learned chief justice adverted in his charge, seems to me so overwhelmingly preponderant that a new trial ought, in my judgment, to be granted, on the ground that the verdict was clearly against the weight of evidence. On the one hand we have Mr. Stilwell’s somewhat vague and indefinite statement as to Mr. Alexander’s admissions in reference to the contents of defendants’ books, or, rather, as to what he “ gathered” from what Mr. Alexander said in that regard. We have, moreover, the evidence of the plaintiff and her attorney, in reference to the notice of a premium about to accrue, in May, 1872, and assumed to have been received at the office of the assured, shortly before that day. I have little doubt that such a notice was issued by the company, and was received at tlie office of the assured ; the “ticker” for 1872, in which the policy appears to have been entered, through some inadvertence, notwithstanding its forfeiture and cancellation for non-payment of the premium of 1871, and notwithstanding the entry of such forfeiture in the ticker for that year, sufficiently accounts for such a notice, just as it accounts for Mr. Alexander’s misapprehension and admission ; but neither the notice, nor the admission constitutes an estoppel. And this is all the evidence, showing, or tending to show, directly or indirectly, by assertion or inference, any payment of that premium, actual or constructive. On the other hand, we have the testimony of the plaintiff, introduced in support of a theory of this case, which has not yet been adverted to, because it was properly and decisively rejected by the court in his charge to the jury. The theory was, that the omission to pay these premiums when due was excused, by a parol agreement entered into upon the making and delivering of the policy between the plaintiff and Mr. Phipps, the agent.

This agreement constituted, as the complaint avers, a material portion of the consideration which induced the plaintiff to accept the policy. It was to the effect “that premiums thereafter to be paid upon the said policy should be paid at the residence of the plaintiff, in the city of New York, and that the said agent, or some other agent of the defendant, should call for the same at the plaintiff’s residence, with a proper receipt signed by the officers of the defendant, to be delivered to her upon such payment being made.”

In support of the theory of the case which rested on this alleged parol agreement, the plaintiff, called as a witness in her own behalf, testified as follows :

Q. “Did you ever see Mr. Phipps afterwards?”
A. “No sir, not after 1870.”
Q. “ Did any person call upon you for the premium of 1871 ?”
A. “Ho sir.”
Q. ‘ 1 Had you the money to pay for it ? ’ ’
A. “I had the money to pay for it; yes, sir.”
Q. 6 ‘ And if any person had called upon you, you would have paid it %
A. “Yes sir, it was ready.”

We have farther the uncontradicted testimony of a Mr. McCorkle, who succeeded Mr. Phipps as agent for the defendants, to the effect that Phipps died about March 1, 1871, fifteen months before the premium for 1871, which is claimed to have been constructively paid by being charged over to him on the company’s books, accrued or become payable. This witness also testified that during the year 1871, and after the premium in question accrued, he repeatedly called on the plaintiff’s husband, whose life was assured in the policy, and to whom, if then living, the policy would be payable, on the expiration of its term of twenty years. That in each of such interviews the subject of reviving the policy by a payment of the premium in arrear, after satisfying the company as to his present condition of health, was considered and discussed. Wright said it was not convenient for him to pay it then, but he would pay it very soon. His attention was particularly called to the fact that he was uninsured, and he said he was aware of the fact, but would very soon have some money and would call down and pay it. Finally, he positively declined to carry on the policy or make another payment thereon. This evidence is wholly uncontradicted. We have, farther, the books of the company containing its accounts, and the testimony of its bookkeepers in regard to the manner in which the accounts were kept. It appears from such testimony and books that it was the practice to charge agents in account with policies and renewal receipts, in accordance with the hypothesis suggested in this opinion, when the legal effect of the alleged charge to Mr. Phipps was under consideration. That, pursuant to such practice, Mr. Phipps’ agency account was charged from time to time with the premiums mentioned in the policies and in the renewal receipts handed him as agent, and with nothing else. That the account exhibits a charge to him of the policy and the first premium due thereon as of May 13, 1869, but no other charge whatever. That, by reason of Mr. Phipps’ death, his account stopped before the premium for 1870 fell-due, and that an entry to that effect was made in the account. Other books of the company were produced and put in evidence to the like effect. The testimony from and in regard to the books was very voluminous, and, as I think, after a careful, protracted, and deliberate examination of it, was conclusive against any assertion of a charge to Phipps of the premium in question, or a credit therefor to the assured, whether by such charge or otherwise. Under these circumstances I think that the verdict does injustice to the defendants ; that it is against the evidence, and ought to be set aside; nor can I doubt that if the learned chief justice before whom the motion for a new trial was informally made, upon his minutes, probably for the mere purpose of an appeal, had been afforded opportunity for a deliberate review of the testimony, upon a case regularly settled and presented, he would have failed to reach the same conclusion.

There is another consideration which, if I entertained any doubt about the propriety of advising the reversal of this judgment and order on the grounds already considered, would have great weight with me in inducing that result. A large mass of matter, confessedly irrelevant, immaterial, and incompetent, was received in evidence in support of the alleged parol agreement that the premiums on the policy should be payable by the plaintiff, at her residence, when called for, and in reference to the action of the plaintiff and of the agent, Mr. Phipps, and to conversations between them, in respect to that mode of payment. It was received under objection, and subject to exception duly taken by defendants’ counsel; and although the complaint was dismissed in so far as the claim to recover the whole amount of-the policy by reason of such parol agreement is concerned, and although the jury were instructed that this evidence must be disregarded by them in determining the questions actually submitted to their consideration, I think it impossible to say that they were not and could not have been strongly influenced and prejudiced thereby.

The evidence tended to show, and for the purposes of the trial, in charging the jury, the learned chief justice expressly assumed that it did show, an agreement between Phipps and the plaintiff to the effect that he would look after the policy, see that the premiums were credited, and that the policy was not forfeited for non-payment of premiums. ■ The jury were, indeed, instructed that this promise was not binding on the company, and that they had no right to regard it as a payment of the premium due on May 13, 1871. It seems to me that this instruction was insufficient to disabuse the minds of the jury of whatever prejudices in favor of the plaintiff her evidence in support of it may have inducéd them to imbibe, and that on this ground, as well as the others already considered, a new trial ought to be had (Erben v. Lorillard, 19 N. Y. 299).

The judgment and order appealed from should be reversed, with costs to abide the event.

Speir, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN SUTHERLAND, Plaintiff and Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Appellant.

      Run-over Case.

    I. NEGLIGENCE BY DEFENDANT.
    1. When evidence insufficient to warrant submission to THE JURY.

      {a) Hinging of the bell.

    Where the negligence claimed consists in the alleged not ringing of the bell, evidence by the injured party that he did not hear the bell, with proof that the engineer in charge of the engine by which the injury was inflicted, having learned that some one had told the superintendent that the bell was not rung, appealed, to another employee to state whether the hell was rung, opposed by evidence from the person of whom this inquiry was made, and from the fireman and baggage-man of the train to which the engine was attached (the engineer being deceased), that the bell was rung, is insufficient to warrant a submission to the jury.

    1. The failure of the injured party to hear the bell is rather indicative of his own preoccupation and absentmindedness than evidence of negligence on the engineer’s part.
    2. The ffiguiry by the engineer is rather to be regarded as raising a strong presumption that the bell was rung, than as implying the existence of a doubt as to whether it was rung or not.
    1. Semble, The evidence on behalf of the plaintiff did not establish that the bell was not rung. It at most raised a mere presumption to that effect, which, if raised, was overwhelmingly rebutted by the defendant’s evidence.

      (b) Flagman.

    1. A railroad company is not bound to home a flagman at crossings to warn, those about to cross of the approach of trains.
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.

      a. Evidence of there being no such flagman is improper, and its admission under objection is error for which a judgment will be set aside, unless its effect is in some way obviated.
    II. NEGLIGENCE BY INJURED PARTY.—NOT LOOKING.
    1. His Duty. To stop, listen, and look in all directions from which danger may reasonably be expected.

      (a) Hence, upon his own testimony that upon crossing a railroad “he looked straightahead,” in the absence of any evidence that he looked in any other direction, or stopped, or listened, or adopted any precaution whatever, his complaint •should be dismissed,

    on the ground
    that he himself was guilty of negligence contributing to the injury.
    III. EVIDENCE, IMPROPER.
    1. Admission of, when not cause for reversal.

      (a) When similar testimony has previously been introduced without objection.
    3. What will not cure the error.
    1. A charge by the judge that the party against whom the evidence was admitted loas not bound to do or omit or to do the act concerning which the evidence was given, will not.

      (a) The jury may possibly have been adversely influenced by the testimony.
    Appeal from a judgment and from an order denying a motion for a new trial, made on the judge’s minutes.
    This is an appeal from a judgment entered on a verdict, rendered May 20, 1875, after a trial before Mr. Justice Curtis and a jury ; also from an order denying a motion made by the defendants on the judge’s minutes, to set aside the verdict, on the exceptions taken at the trial, and on the further grounds that the damages are excessive, and that the verdict was contrary to and unsupported by the evidence.
    The action was brought to recover damages, alleged to have been sustained by the plaintiff through the alleged carelessness and negligence of defendants in running a locomotive engine against him while he was in the act of crossing their railroad track, on the Fourth Avenue, at its intersection with Forty-seventh Street, in the city of New York.
    The plaintiff resided in Forty-seventh Street, east of the Fourth Avenue, and had his place of business on Sixth Avenue between Twenty-first and Twenty-second Streets. He was in the habit of crossing Fourth Avenue at Forty-seventh Street, frequently, in going to and from his place of business, and knew that the tracks extending up and down that avenue, at that point, were numerous, and that trains and single locomotives passed up and down those tracks frequently. On the morning of the accident, he walked up Forty-seventh Street, on its southerly side, to Fourth Avenue, intending to cross, and go to his place of business. As he walked over to the crossing on Fourth Avenue, he observed that there was a row of freight cars on the first (or easterly) track, standing on each side, north and south of him, with an opening between them, perhaps nine or ten feet wide, near the middle of the street. He passed through this opening between these cars, crossed the track on which they stood, took one step after getting off the track on which they were stationed, “ one step beyond these cars,” and got one foot over the track, upon which the locomotive was coming, when he was hit. He was struck down by the engine ; his arm was broken, and the fore part of his left foot was crushed, so as to require the amputation of four of his toes. He was otherwise severely bruised and injured.

      The locomotive that struck him was going south towards the depot; the empty cars on the easterly track, a long row of them, extended north of the passage way, and, as he testified, “he could not see the train coming down at all.” It does not appear that he stopped, or listened, or looked up or down. On the contrary, he says himself: “I carried a cane, and 1 was loolcing straight across Fourth Avenue.'’’’

    Upon this a-nd other evidence tending to show the nature and extent of his injuries, but not materially affecting the question of neg’ligence, as imputable to either party, the plaintiff rested his case. The defendants then moved for a dismissal of the complaint, on the ground that no negligence had been shown on the part of the defendants, and that there was contributory negligence on the part of the plaintiff.
    The motion was denied, and defendants excepted.
    The defendants then proved by the fireman, who, at the time of the accident, was on the locomotive, that he rang the bell as the train came in ; that he commenced ringing it at the south end of the Yorkville tunnel, and continued to ring it until the engine reached the side track going to the engine-house, south of the point where the accident occurred. The baggage-man of the train also testified that the bell was rung, to his knowledge, from Mott Haven junction until the engine reached the station ; that he heard it all the way down, except through the tunnel. The baggage was in the forward part of the first car ; he was in the car attending to his duties, except for about fifteen seconds, when he- was standing on the front platform of the baggage-car uncoupling the engine from the train. Another witness, in the employment of defendants, who, at the time of the accident', stood in the centre of Fourth Avenue, ten feet south of the switch-house on the north line of Forty-seventh Street, testified that the engine was at Fiftieth Street when he first saw it; that the bell was ringing there, and continued to ring till the engine reached Forty-fifth Street; that his attention was called to the matter immediately after the occurrence, by the engineer of the train (since deceased), who came up and asked him about it. “ He (the engineer) asked because some one said to the superintendent it was not rung; I heard it ring, and he asked me in regard to it.” There was other evidence as to the height of the cars standing on the easterly track, and as to whether they obstructed the view up the avenue, so as to prevent one passing between them from seeing the locomotive coming down; and it also appeared without contradiction, that the whistle was blown eight or nine seconds before the plaintiff was bit.
    Ho evidence was offered by the plaintiff to prove that the bell was not rung, or that the whistle was not sounded ; nor did the plaintiff testify that he did not hear the dell, until he was recalled for that purpose after counsel for defendants'had commenced summing up, and had remarked to the jury that such testimony had not been given. He was then recalled, by permission of the court, and being asked if he heard any bell, answered, “I did not.”
    At the close of defendants’ evidence, the motion for a dismissal of the complaint was renewed and denied, and exception was thereupon duly taken.
    The court submitted to the jury the question of negligence, with respect to each of the parties, charging that if there was an omission to ring the bell, the defendants were guilty of negligence, and that if the plaintiff could see the locomotive, he was bound to look and guard against it; that there was conflicting evidence as to whether he could see the train at all, by reason of the position of the freight cars on the easterly track ; that the plaintiff was bound to look both ways before stepping on the track on which the locomotive was, if he could, and that if he omitted to do so, he could not recover; that if there were obstructions to the plaintiff’s view, as he approached the track on which the locomotive was, that fact, under the circumstances, imposed the duty of greater caution on him ; and that, if he was guilty of any negligence, however slight, contributing to the accident, no recovery could be had.

      Frank Loomis, attorney, and of counsel for appellant, urged :
    I. The motion to dismiss the complaint should have been granted. 1. It was the duty of the plaintiff to have looked in both directions before stepping on the track on which he was hit (Gonzales v. N. Y. & Harlem R. R. Co., 38 N. Y. 440 ; Wilcox v. Rome & Watertown R. R. Co., 39 Id. 358 ; Haight v. N. Y. C. R. R. Co., 7 Lansing, 11; Mitchell v. N. Y. C. & H. R. R. R. Co., 9 Supreme Court [2 Hun], 535). It is indisputable that after passing the obstruction of the stationary cars, the plaintiff could have looked in time to have avoided the danger ; and he admits that he did not look. Nor does he claim" that he listened— he simply says he did not hear. This will not satisfy the law. A vigilant use of the faculties is required of one approaching a railroad to cross it (Davis v. N. Y. C. & H. R. R. R. Co., 47 N. Y. 400). 2. The evidence to take the case tb the jury on the question of defendant’s alleged negligence in omitting to ring the bell, was insufficient (Toomey v. London, Brighton and South Coast Railway Co., 3 Com. Bench. N. S. 146 ; Baulec v. N. Y. & Harlem R. R. Co., Court of Appeals, 48 How. Pr. 399). The burden of proof was on the plaintiff to establish affirmatively, and to make out more than a balance case, that the bell was not rung—and this he utterly failed to do (Button v. Hudson River R. R. Co., 18 N. Y. 251; Warner v. N. Y. Central R. R. Co., 44 Id. 465).

      II. The court substantially charged the jury that if the bell was rung the defendants were free from negliligence, and that if the plaintiff failed to look—if he could have looked so as to have avoided the accident, he was guilty of negligence, and could not recover. The verdict of the jury is so flagrant a disregard of these rules and the evidence as to compel the conclusion that they were influenced by passion or prejudice, and should be set aside as unsupported by the evidence (Toomey v. London, Brighton & South Coast Railway Co., supra; Seibert v. Erie Railway Co., 49 Barb. 583 ; Baulec v. N. Y. & Harlem R. R. Co., ante).

    III. Immaterial evidence was admitted under objection and exception, which possibly prejudiced the defendant.
    IY. The admission of evidence that there was no flagman at Forty-seventh Street was error (Beiseigel v. N. Y. Central R. R. Co., 40 N. Y. 9 ; Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 451). The instruction of the court that defendants were not bound to keep a flagman at the place in question, did not cure this error (Erben v. Lorillard, 19 N. Y. 299).

      Charles S. Spencer, attorney, and of counsel fox-respondent, urged:
    I. The plaintiff was not guilty of negligence. He used ordinary care, which is all that is required under the decisions. His attention was in no manner called to the locomotive, showing plainly that the engine bell was not x-ung. This portion of plaintiff’s testimony is corroborated by the fact, that one of defendant’s witnesses, John W. Springsteen, testified that the engineer came up to him immediately after the- occurrence, and inquired whether the bell was rung. It is claimed by the defense that the plaintiff could have seen the engine over the empty cars. Plaintiff swears he could not; as to the height of the cars there is some little conflict, although the weight of evidence on this point is in favor of plaintiff.
    II. The defendants were plainly guilty of carelessness and negligence.
    III. The motions made by defendants’ counsel for a dismissal of the complaint at the close of plaintiff’s case, and at the close of the entire case, were properly denied by the justice. The question of negligence is peculiarly a question to be determined by the jury, and the case must be very clear which will justify the court in withdrawing it from their consideration (Wooden v. Austin, 51 Barb. 9 ; Gonzales v. N. Y. & H. R. R. Co., 39 How. Pr. 407-418; Cook v. N. Y. C. R. R. Co., 3 Keyes, 476 ; Boyle v. Second Avenue R. R. Co., 30 How. Pr. 223; Johnson v. Hudson R. R. Co., 20 N. Y. 65 ; Willets v. Same, 38 Id. 490 ; 35 Id. 9 ; Filer v. N. Y. C. R. R. Co., 49 Id. 47).
    IV. It is well settled that the freedom from negligence which is required of plaintiff, involves only that ordinary prudence and attention which sensible men are accustomed to give in certain cases (Ernst v. Hudson R. R. Co., 35 N. Y. 9 ; Beiseigel v. N. Y. C. R. R. Co., 34 Id. 623 ; Mackey v. Same, 35 Id. 75; Brown v. Same, 34 Id. 405; see Justice Clerke’s opinion in Ernst H. R. R. Co., 39 N. Y. 62, and Justice Woodruff’s opinion same case; Nichols v. Sixth Avenue R. R., 38 N. Y. 131; see also opinion of Judge Hunt in Cook v. N. Y. C. R. R. Co., 3 Keyes, 476, Court of Appeals, 1867; Williams v. O’Keefe, 9 Bosw. 536).
    V. The damages were not excessive (Ranson v. N. Y. & Erie R. R. Co., 15 N. Y. 415 ; 18 N. Y. 534).
   By the Court.—Sanford, J.

The appeal in this •case, is taken both from the judgment and from the order denying defendants’ motion to set aside the verdict, and for a new trial.

The whole case is, therefore, before the court for review, as well upon the facts as upon the law.

While I am of opinion that the damages awarded by the jury would not be excessive, if the liability of the defendants to respond in damages were duly established, the conclusion at which I have arrived, after a protracted and deliberate examination of the case, in the light of the most recent decisions on the subject made by the court of appeals, is that the verdict, if not wholly unsupported by, is, at least, clearly against the evidence ; and that the court, either before or after the defense was put in, would have been justified in dismissing the complaint, both because the evidence was insufficient to make out a case of negligence on the part of the defendants, and for the reason that there was no evidence to warrant an affirmative finding that the plaintiff was- himself free from negligence which contributed to the injury.

The sole proof, tending to establish the allegation of negligence on the part of the defendants, related to the ringing of, or the omission to ring, the bell attached to the locomotive.

That there was no proof or suggestion of any other negligence, on defendants’ part, is manifest not only from a perusal of the evidence, but from the charge of the court. In submitting the question of defendant’s negligence to the jury, after stating the contention of the parties with respect to that of the plaintiff, the court used the following language :

“It is claimed on the part of the plaintiff, that he heard no bell ring, and that no notice was given him of the approach of the locomotive, of any kind, and that there was no flagman in attendance. On the other hand, the defendants produce testimony, showing, as they claim, that there was a bell rung on the locomotive, and that there was a warning, in that way, given to plaintiff. Hence you will perceive that there are two great questions in this case ; one, whether there was negligence on the pari of the defendants, that is, did they or did they not, by the ringing of the bell, give the notice that the law requires them, to give when a locomotive passes across any road ? Second. Was there or not contributory negligence on the part of the plaintiff? ”

The court further charged that the defendants were not bound to keep a flagman on the street in question, and that they were not responsible for the obstruction, so far as the street was obstructed by cars on the side track. That “if there was an omission to ring that bell, then the defendants were guilty of negligence, for it was their duty to ring the bell, as they approached the crossing.” He then directed the attention of the jury, in general terms, to the testimony of the plaintiff, in that respect, and to that of the employees of the company, and to the inquiry said to have been put by the deceased engineer to one of the witnesses, if the bell had not been rung, and instructed them to determine from all this evidence, and from all the surrounding facts, “whether that bell was rung or not.”

The court, therefore, in effect, instructed the jury that the defendants were entitled to a verdict, if the bell was rung ; if not, that the verdict would depend upon the presence or absence of contributory negli gence on the part of the plaintiff.

How, upon this question of the ringing of the bell, if there was conflicting testimony at all, the conflict was so slight as scarcely to admit of a doubt that the bell was actually rung. The onus probandi was upon the plaintiff to show that it was not. He was bound to make out, affirmatively, a case of negligence on the part of the defendants.

The only scintillas of evidence tending to establish such negligence consisted (1) in his statement—not made until after the case had. been closed, and defendants’ counsel had made the absence of such testimony the subject of appropriate comment to the jury—that he “did not hear any bell; ” and (2) in the fact that the engineer, who was in charge of the engine at the time of the accident, having learned that some one had told the superintendent of the road that the bell was not rung, appealed to another employee, cognizant of the fact [for he was on the spot, close at hand, when the accident occurred, but in no way instrumental in its occurrence], to state whether it was rung, “ because som.e one had, said to the superintendent that it was not.” The witness to whom this appeal was made, testified that the bell was ringing when he first saw the engine, then at Fiftieth Street, and that it continued to ring till it reached Forty-fifth Street. Two other unimpeached witnesses, both of whom were on the train, one, the fireman on the engine, the other, the baggage-man, in the baggage-car, which next succeeded the engine in the train, swore positively that the bell rang continuously from the time when the train emerged from the’ Yorkville tunnel until after the accident.

In the face of this direct, positive, and uncontradioted testimony, it seems to me that the mere failure of the plaintiff to hear the bell, if it be allowed any effect whatever, should be deemed rather a corroboration of whatever of evidence there may be in the case indicative of his own preoccupation and absent mindedness, than as constituting affirmative evidence from which the negligent omission to obey a well-known requirement of law may be imputed to the defendants or their servants.

I am also of opinion, that the inquiry addressed by the engineer to his fellow-servant, as to “whether the bell was rung,” is rather to be regarded as raising a. strong presumption that it was rung, than as implying the existence of a doubt, in the mind of the inquirer, as to whether it was rung or not.

It certainly was not evidence of any omission to ring. If I am correct in the view I have taken of the force and effect of the testimony under consideration, there was, to all intents and purposes, no evidence in the case from which the conclusion of negligence on the part of the defendants could fairly be drawn, and the complaint should have been dismissed (Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356, 365). ' But, however this may be, the evidence of the plaintiff, at most, raised a mere presumption that the bell was not rung; and such a presumption, if raised, was overwhelmingly rebutted by the direct and positive testimony of three unimpeached witnesses, every one of whom swore positively that it was. The jury were not warranted in discrediting these three witnesses, and in rejecting their statements as false, by any such presumption. I can not persuade myself that the jury did intentionally or consciously discredit them. I prefer to believe that they willfully disregarded the instructions of the court, and took the law into their own hands, rendering a verdict through sympathy with the plaintiff, and in commiseration for his misfortunes, irrespective of the question whether the bell was rung or not.

At all events, the verdict was against the evidence upon this question, and the preponderance is so decided that a. new trial should be granted on that ground (Smith v. Ætna Life Ins. Co., 49 N. Y. 211 ; and see the observations of Mr. Justice Allen, at p. 266, in the case of Baulec v. N. Y. & Harlem R. R. Co., above cited, and also Toomey v. London, &c., R’y Co., 3 C. B. [N. S.] 146, and other cases cited; Ryan v. Thomson, 38 N. Y. Superior Ct R. 133).

I am also of opinion that the admission made by the plaintiff that he “ was looking straight across Fourth Avenue,” and the absence of evidence tending to prove that he looked in any other direction, or stopped, or listened, or adopted any precaution what ever in approaching a locality so fraught with danger, show an entire want of ordinary care on his part, and are inconsistent and at variance with the finding of the jury, that he was himself free from negligence contributing to the injury.

It is essential that there should be some evidence to support such an affirmative finding, and I think the case nowhere reveals it (Reynolds v. N. Y. Central R. R. Co., 58 N. Y. 248). “If this element is wanting, the court may non-suit, or set aside the verdict.” A verdict was set aside on that ground by the court of appeals, in the case last cited, although the general term had affirmed the judgment rendered on such verdict. In the case now under consideration, there was no conflict of evidence upon the question of the plaintiff’s negligence or freedom from negligence, and in view of his admission the court would, have been justified in dismissing his complaint, or in directing a verdict for the defendants. “The existence of the track was a warning of danger, . . . and it is in accordance with experience that prudent men do, before crossing a railway, loóle and listen for signs of danger (McGrath v. N. Y. Central & H. R. R. Co., 59 N. Y. 468). A fortiori the obligation exists in the exercise of ordinary care, to stop and listen, where, as in the present case, the numerous and complicated tracks of more than one line of railway are concentrated upon a single avenue, in their approach to a common depot.

The admission of evidence as to the absence of a flagman from the crossing at Forty-seventh Street, would have been fatal to the plaintiff’s judgment under the ruling of the court of appeals in the case last cited, and in earlier cases, but for the fact that similar evidence had been previously introduced without objection.

The charge of the judge to the effect that the defendants were not bound to keep a flagman there, did not preclude the possibility of the jury being adversely influenced by the testimony (Erben v. Lorillard, 19 N. Y. 299). But the like testimony, previously introduced without objection, would still have remained in the case, had this item of evidence been excluded when objected to. The error should therefore be disregarded.

But, under all the circumstances, I think the verdict should be set aside either as unsupported by, or against, the evidence, and that there should be a new trial.

Judgment reversed, and new trial ordered.

Speir, J., concurred.


text:
    DAVIS, ADMINISTRATRIX, Plaintiff and Appellant, v. THE THIRD AVENUE RAILROAD COMPANY, Defendants and Respondents.

      Negligence Case.

    Before Speir and Sanford, JJ.

      Decided March 20, 1876.

      I. SUBMISSION TO THE JURY.
    1. Not required in all cases where there is conflict of testimony.

      (a) Preponderating evidence.

    1. Where the evidence in favor of either party is so prepon derating as to require that an adverse verdict, if rendered, should be set aside, they «¿ye is not justified in submitting the case to the jury.

    This is an appeal from a judgment entered on a verdict in favor of defendants, rendered March 4,1874, by direction of the court, after a trial before the Chief Justice and a jury.
    The action was brought by the plaintiff, as administratrix of her deceased husband, to recover the damages sustained by his estate in consequence of his death, which is alleged to have been occasioned by the negligence of the defendants.
    It appeared that plaintiff got on one of defendant’s cars while in a state of intoxication,- and the conductor, refusing to receive his fare, ejected him from the car. He was put off on the left hand side of the car, in front of the car coming from the opposite direction He fell against the horses of the other car, and then under the car.

      The only exceptions taken, were “to the charge, and to each and every part thereof,” and to the ruling or decision of the court, directing the verdict.
    Only so much of the points made by counsel as will serve to show the bearing of the decision of the court will be given.

      Oscar Frisbie. attorney, and of counsel for appellant, urged :
    I. The question of intoxication was one for the jury and not for the court, and if it had been submitted to them and they had 'found that fact against the plaintiff, it would not even then have made any difference with her case, unless they further found that the intoxication contributed to produce the injury complained of. If the deceased was intoxicated, that fact did not cause the injury; it was the fact that deceased was pushed off the car on the left hand side instead of the right hand side of the car, and the further fact that he was pushed off baclcward instead of forward (Haley v. Earle, 30 N. Y. 208 ; Alger v. Lowell, 3 Allen, 402 ; Robinson v. Pioche, 5 Cal. 460 ; Healy v. The Mayor, 3 Hun, 708).

    II. If, as the judge remarked, the deceased was a trespasser'on the car of the defendant, that fact forms no defense to this action, under the circumstances of the case; in it, the defendants could only find an excuse for ejecting him, but can not shield themselves from liability, from a rash and careless act, the consequence of which must necessarily be attended in a great degree with peril; because he was a trespasser it would have no right to throw him under the wheels of a car going upon its track at full, speed, nor would it give a right to use force in any other wa.y than in a careful manner. If a man forces himself into my house against my will and in defiance of law, I can not throw him out of a fourth story window, and shield myself from the consequence of such an act by saying you are a trespasser. I may use force enough to put him out, but I must do it in such a way as not to hazard his life or limb (Rounds v. The Dela. L. W. R. R. Co., 3 Hun, 329; Sanford v. Eighth Avenue R. R. Co., 23 N. Y. 343).
    III. The platform of the car and the street were icy, and the car in motion at the time the attempt was made to eject the deceased ; under such circumstances he had a right to resist, although a trespasser (Sandford v. Eighth Avenue R. R. Co., supra).

    IV. On a motion for a non-suit, all the contested facts, with all the presumptions and inferences that the jury may properly draw from them, are to he held in favor of the plaintiff. It was not the province of the court to say whether what the deceased actually did or omitted, constituted negligence, that was for the jury exclusively (Sheridan v. Brooklyn R R. Co., 36 N. Y. 39 ; Colgrove v. New Haven & H. R. R. Co., 20 Id. 492 ; Ernst v. H. R. R. Co., 35 Id. 25 ; he also cited Putnam v. Broadway and Seventh Avenue R. R., 55 Id. 114).
    Vanderpoel, Green & Cuming, attorneys, and A. J. Vanderpoel and Almon Goodwin, of counsel for respondent, urged:
    I. The defendant did not owe to the deceased the same care which it owed to its passenger. The deceased was a trespasser from the beginning. The conductor rightfully treated him as such, and neither collected nor tried to collect any fare from him. Being a mere trespasser, no right of action could accrue to him or his administratrix, by reason of any negligence on the part of the defendant. This question is very fully discussed by Beardsley, J., in The Tonawanda R. R. Co. v. Munger, 5 Denio, 255. The rule is clearly stated at pp. 268, 267. A new trial of that action was had, and the question finally came before the court of appeals, sub nomine Munger v.
      Tonawanda R. R. Co. (4 N. Y. 349). The ground taken by Mr. Justice Beardsley was fully sustained, and bis opinion specially noticed and approved (p. 359). In Robertson v. N. Y. & Erie R. R. Co. (22 Barb. 91), it was held that a person riding upon an engine, although with the permission of the engineer, was not lawfully upon the engine, and could not recover for injuries caused by the negligence of the railroad company (see also Moss v. Johnson, 22 Ill. 633 ; Lawrenceburg, &c., R. R. Co. v. Montgomery, 7 Ind. 474 ; State, use of Coughlin v. Baltimore, &c., R. R. Co., 25 Md. 84).

    II. A direction to find a verdict for one of the parties is proper where a contrary verdict would be set aside on the ground it was against evidence (Herring v. Hoppoch, 15 N. Y. 409 ; Same Case, 3 Duer, 20 ; Godin v. Bank of Commonwealth, 6 Id. 76). Where there is no conflicting evidence, or the weight of evidence in favor of one party is so decided that the court would set aside an adverse verdict as against evidence, it is the duty of the judge to direct the jury what verdict to render (People ex rel. Peck v. Board of Police, 14 Abb. Pr. 158; Goelet v. Ross, 15 Id. 251 ; Dickerson v. Wason, 48 Barb. 412).
   By the Court.—Sanford, J.

Not one of the legal propositions asserted in his charge, by the learned chief justice, as the basis of his action in directing a verdict for the defendants, was separately excepted to by the plaintiff's counsel on the trial; nor could tenable exception have been taken to any or either of such propositions. Indeed, it is not now contended that there was error in the charge, or in any part of it, except in the application of familiar and well-settled rules and principles to the facts and circumstances of this particular case.

It is claimed that there was conflicting evidence upon the two main questions in the case, viz. : first, whether the injuries which resulted in the death of the plaintiff’s intestate were occasioned by negligence on the part of the defendants; and secondly, whether the said intestate was himself free from negligence which contributed to such injuries. It is even claimed that there was a preponderance of testimony in favor of the plaintiff upon both these questions, and the plaintiff’s counsel has addressed to us an able and elaborate argument and brief (chiefly devoted to an analysis of the testimony) in derogation of the verdict, and the action of the court in directing it. The case is very voluminous, and there are discrepancies in the evidence, possibly even some contradictions, in regard to particular facts. I have examined and considered the whole with deliberation and care, and my examination has satisfied me that the decision was correct.

It is not every case in which there is evidence, which, if uncontradicted, would sustain a judgment, that must be submitted to a jury in case such evidence be contradicted.

I am of opinion that a judge is not justified in submitting a case to the arbitrament of a jury, where the evidence in favor of either party is so preponderating as to require that an adverse verdict, if rendered, should be set aside ; and I deem it especially important that this rule should be observed in actions for negligence against corporations; carriers off passengers. For, as was wisely and truly remarked by Williams, J., in Toomey v. London, B. & S. Railway Co. (3 C. B. N. 8. 146), “every person who has had any experience in courts of justice, knows very well that a case of this sort against a railway company, could only be submitted to a jury with one result.” The rule has the sanction and approval of this court, and of the court of appeals (Ryan v. Thompson, 38 N. Y. Sup’r Ct. 133), and its more frequent adoption would substantially promote the cause of justice, and tend to suppress, in some degree, the alarming increase in the number of purely speculative litigations which the misplaced sympathy of jurors, and an unwholesome dread of responsibility on the part of judges, has done much to foster and encdurage.

The judgment should be affirmed, with costs.

Speir, J., concurred.


text:
    JEANNETTE SMITH, Plaintiff and Respondent, v. JEROME B. FELLOWS, Defendant and Appellant.
    I. OLOTJD ON TITLE.
    1. Action to behove.

      (а) When it lies.

    1. To cancel a mortgage void by reason of facts which can only be established hy extrinsic evidence.
    (б) By whom.

    1. Semble. By a married woman who has joined in the. execution of the mortgage.
    II. PRINCIPAL AND AGENT.
    1. Husband and Wipe.

      {a) Authority, proof from,

    1. Relationship. No authority in the husband as agent can be inferred, implied, or presumed from the relationship.
    2. Possession bt the husband op ait instf.ument made bt the wipe to A person other than the husband, or in blank.

      (a) When in blank, it confers no authority to fill the blank.
    (5) When not in blank, it confers authority to deliver or dispose of the instrument solely in conformity with its precise terms.

      1. A fortiori he has no authority to change the name of the grantee, mortgagee, &c.
    3. Bona-fide holder—Notice, what constitutes.
    1. One taking such an instrument from the husband is chargeable with constructive notice that the husband’s authority does not exceed that conferred by the terms of the instrument itself.

      (a) The existence of the marital relations calls for the exercise of greater care than if they did not exist.
    HI. INSTRUMENTS IN BLANK.
    1. When void.
    («) An instrument required by law to be under seal, if executed in blank as to the name of the grantor, mortgagee, obligee, covenantee, &c., as the case may be, is void.
    3. Filling of blank.

      (a) Mere delivery of such an instrument does not authorize the party to whom it maybe delivered, to fill up the blank.

    1. This, although the delivery was for a valuable consideration.

    3. Alteration, material.

      (a) Made in such an instrument without the consent of the party executing it, renders it void.

    IV. CLOUD ON TITLE.
    1. Action to remove.

      a) Defense to, what is not.

      1. Defect in plaintiff’s title is not, when.
    1. When the cloud sought to be removed is a mortgage made by the plaintiff and her husband to the defendant, the fact that she before executing the mortgage received the title by deed direct from her husband, which deed is fraudulent and, void as against creditors of the husband, constitutes no defense, although the defendant made advances to the husband on the faith of the mortgage.
    V. APPLICATION OF ABOVE PRINCIPLES.
    1. S. being in possession of certain real estate claiming seizin in fee in her own right, as of her own separate estate, with her husband executed to one K. a bond and mortgage to secure four thousand dollars, and delivered the same to her husband to take to K., and obtain from him a loan to her thereon of four thousand dollars. The date of the instrument, and the date of the day of payment, were left blank. K. refused to make the loan. The husband then obtained from F., the defendant, a temporary loan for his own purposes, leaving the bond and mortgage as security. Thereupon, at the defendant’s suggestion, K.’s name was erased, and defendant’s substituted, and the dates were filled in. Defendant subsequently made other advances to the husband upon the bond and mortgage. All of these transactions with the defendant were without the knowledge of plaintiff, and without, authority from her, other than such as the husband’s possession of the instruments and relationship to her might afford, and she did not in any way afterward ratify the transaction. The defendant claims as a defense that the title of S. was derived through a deed executed directly to her by her husband, and that the deed was fraudulent and void as against the husband’s creditors.
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    HELD,
    1. The plaintiff might maintain an action to set aside the mortgage as a cloud on her title.
    2. That the judgment setting aside the mortgage as constituting such a cloud was correct.
    This is an appeal from a judgment, rendered at special terra, April, 1873, directing the cancellation and discharge, as against the plaintiff, a married woman, of a mortgage on her separate real property, and perpetually enjoining the defendant, the mortgagee, from instituting any suit or proceeding thereon, or on the bond therein mentioned against her.
    The facts of the case, as they appear in evidence, and are found by the court, are in substance as follows :
    On the twenty-third day of May, 1872, the plaintiff, who was the wife of John W. Smith, joined with her husband in the execution of a written instrument, without date, in which was recited the indebtedness of the plaintiff to one Bichard Kelly, in the sum of four thousand dollars, secured to be paid by her certain bond or obligation to said Kelly in the penal sum of eight thousand dollars, and by which, for the better securing the payment of such indebtedness, certain real estate, consisting of a lot of land and dwelling-house, of which she was the occupant, claiming seizin in fee, in her own right and as of her own separate estate, was, or purported to be, mortgaged to the said Kelly. No such indebtedness, in fact, existed, but concurrently with the execution of such mortgage, a bond to Kelly, without date or day of payment, in the penal sum of eight thousand dollars, and conditioned for the payment to him of the sum of four thousand dollars, as recited in the said mortgage, was executed by the plaintiff. The bond and mortgage were there upon placed by her in the hands of her husband, to be taken to Kelly, for the purpose of inducing him to lend money thereon to her. This purpose was not accomplished. Negotiations to that end were opened, but Kelly was unwilling to lend, unless a part of the money loaned could be applied in payment of a debt due from the husband to a bank with which Kelly was connected.
    The papers remained in Kelly’s hands, until the twenty-ninth day of May, when they were withdrawn by the plaintiff’s husband, who thereupon carried them to the defendant, and procured from him a temporary advance of one thousand and seventy-five dollars, which he required for his own purposes, leaving the bond and mortgage as security therefor. The name of Richard Kelly, as mortgagee, was thereupon erased, and that of Jerome Fellows, the defendant, was inserted in its stead. The date of the instrument as it now stands,—May 29th, 1872—and the day of payment—May 29th, 1873—which had been left blank, when it was originally executed and acknowledged, were also filled in. This was done by the attorney of the husband in the presence of defendant, and upon a suggestion that with Kelly’s name there, the mortgage would be of no avail to Mm. Other advances were afterwards made by the defendant to the plaintiff’s husband, which are also claimed to be secured by the mortgage. The alterations above referred to were made, and the bond and mortgage were delivered to the defendant, without the knowledge of the plaintiff, and without authority from her ; nor did she in any way afterwards ratify the transaction.
    This action was commenced on the first day of August, 1872, to restrain a threatened enforcement of the mortgage, and to have the same avoided and set aside, as against the defendant.

      Hatch & Van Allen, attorneys, and A. Oakey Hall, of counsel for appellant, upon the questions discussed by the court, urged :
    I. Mrs. Smith, the plaintiff, did not show an equitable title to the premises in herself, and the evidence showing that the deed from Smith to her was fraudulent as to creditors, and without consideration, the title was in equity held by Smith. The deed was fraudulent as to existing and subsequent creditors, and was directly attacked by the answer. It being directly from the husband to the wife, and the consideration not being paid by her and out of her separate estate, the deed can not be sustained, even in equity, and this independent of the question of fraud (Case v. Phelps, 39 N. Y. 164; Savage v. Murphy, 8 Barb. 75; King v. Wilcox, 11 Paige, 589 ; 17 Barb. 103 ; 26 Id. 419). It follows that the defendant’s exception to the refusal of motion to dismiss complaint was good (Ward v. Dewey, 16 N. Y. 25).
    II. At most, the plaintiff was the owner of only a mortgage interest in the land. At most, there was only a consideration of seven thousand dollars for a house worth fourteen thousand dollars (Robinson v. Cropsey, 6 Paige, 480 ; Boyd v. Dunlap, 1 Johns. Ch.
      478 ; 4 Bard. 382 ; 29 Id. 28; 18 Wend. 366 ; 46 Barb. 149 ; 13 How. U. S. 97 ; 8 Bos. 99). Hence the exception supra was well taken, for she was not the equitable owner.
    III. The authority of the husband to fill up the blanks as to dates, and insert defendant’s name as mortgagee, &c., was sufficient (Knapp v. Maltby, 13 Wend. 587; Woolley v. Constant, 4 Johns. 54; cases are collected in Chauncey v. Arnold, 24 N. Y. 330).
    IT. Even if the change in names was not authorized, the plaintiff would still not be entitled to a surrender and cancellation, except on payment of the amount due; the mortgage would be valid in equity, having a consideration to support it, and the money going to the man Smith, as intended by her (De Pierris v. Thorne, 4 Bos. 266 ; Willard’s Eq. 438-444).

      V. Mrs. Smith is bound by her agent’s act, though in excess or abuse of his authority, because it was within the general scope of the business he is employed to transact (East N. Y. & J. R. R. v. Lighthall, 6 Rob. 407 ; 36 How. 481).
    VI. It is no part of the policy of law, while increasing the right of a married woman, in the use and disposition of her property, to place her in a position to take advantage of the neglects and frauds of her husband and agent. She can not entrust him with property, and hold him out to the world as her agent in respect to it, and then profit by his frauds and omissions in attending to it, and fasten liabilities for his wrong-doing and neglects on innocent third persons (Adams v. Mills, 38 Sup. Ct. 25). Bo court should protect an effort by a woman and her husband to cheat one who has honestly loaned them a large sum of money, and impose upon him expensive litigation. Points were also submitted as to the admission of conversations between the plaintiff and her husband when the defendant was not present, as to the admission of a question calling for a mental result; and as to the ratification by the plaintiff of her husband’s acts.

      Nelson Smith, attorney, and of counsel for respondent, urged :
    I. The plaintiff’s possession of the premises with a claim of ownership is sufficient to entitle her to maintain this action, possession being in all cases evidence of ownership.
    II. This is especially so here, where the defendant seeks by the mortgage to obtain whatever right and title the plaintiff had to the premises, under a mortgage alleged by the defendant to have been given by her. If she had given it she would be estopped from denying that she owned the premises (Kidd v. Conway, 65 Barb. 158).
    III. Whether or not the plaintiff was actually the owner of the premises can not in this action be determined, as the defendant has no standing or right to try that question here, especially so as the defendant does not show that he has any right to the premises, which can be tried in this action, except such as he claims directly against the plaintiff. What right John W. Smith, the plaintiff’s husband, may have in the premises is not in issue in this action ; and even if he were the owner, the plaintiff’s inchoate right of dower would be sufficient to entitle her to maintain this action. When a married woman executes a mortgage on real estate, she is estopped from denying that it is her separate estate (Kidd v. Conway, 65 Barb. 158).
    IY. The old rule that a deed directly from a husband to his wife was void at law, has been so far modified by statute and the more recent decisions, that the presumption now is that it is good. The rules of equity, which always allowed circumstances to be shown by which the validity of such a conveyance might be established, have of late been so far invoked as to make such deeds valid, even at law (Rawson v. Penn. R. R. Co., 48 N. Y. 212; Lockwood v. Cullin, 4 Robt. 129 ; Leitch v. Wills, 48 N. Y. 585 ; Garuty v. Haynes, 53 Barb. 596 ; Hunt v. Johnson, 44 N. Y. 27; Shepard v. Shepard, 7 Johns. Ch. 57 ; Tisdale v. James, 38 Barb. 523 ; Livingston v. Livingston, 2 Johns. Ch. 537; Simmons v. McElwain, 26 Barb. 419 ; Kelly v. Campbell, 2 Abb. Ct. App. Dec. 492).
    Y. The alteration of the mortgage avoided it; it was not,, when altered, the plaintiff’s deed, act, or instrument (Lewis v. Payn, 8 Cow. 72).
    YI. Ho authority was ever given by the plaintiff to make the alteration, or to put anybody else’s name in the mortgage as the mortgagee in the place of Kelly’s, and no authority was ever given by the plaintiff that the mortgage might be used for any other purpose except tó obtain a loan from Kelly to herself.
    YII. It is well settled that the alteration of an instrument avoids it (Lewis v. Payn, 8 Cow. 72; Herrick v. Malin, 22 Wend. 388 ; Star v. Lyon, 5 Conn. 540 ; Bank v. Douglas, 31 Id. 181). It is held that blanks in a deed constitute a material part of the instrument itself, and can not in the absence of the maker be filled by parol authority, because authority to make a deed must be given by deed (Burns v. Lynde, 6 Allen, 305 ; Bassford v. Pearsall, 9 Id. 387; Hubbell White v. McMorine, 6 M. & W. 200). But here there was no authority, parol or otherwise, and the blanks having all been filled up in the mortgage which the plaintiff signed, no authority could be implied or presumed.
    VTII. The plaintiff is entitled to maintain this action upon several grounds. 1. Upon the principles applicable to actions to remove cloud upon title, on the ground that the mortgage as recorded is prima facie a valid lieu upon the plaintiff’s premises, but stands impeached by the evidence aliunde that it is not her deed. 2. Upon the principle that equity may always be invoked to cancel an instrument which is prima facie a valid lien on land, and where extrinsic evidence has been offered to show its invalidity ( Willard's Eq. Jur. 302-304; Hamilton v. Cummings, 1 Johns. Ch. 517; Apthorp v. Comstock, 2 Paige, 482). And relief in such cases will be given, even though the party may have a remedy at law. 3. Equity will give relief to prevent circuity of action, and to quiet the apprehensions of the complainant that he may be annoyed in the future (Willard’s Eq. Jur. 304). 4. The suit is maintainable on the principle applicable to bills guia timet (1 Mad. Ch. 178; Pettit v. Shepard, 5 Paige, 493 ; Willard's Eq. Jur. 304, and title Quia timet).

    IX. He also urged the following point:—Error in THE ADMISSION OR EXCLUSION OF EVIDENCE AT THE TRIAL DOES NOT CALL FOR A NEW TRIAL AS MATTER OF COURSE, WHERE FROM THE WHOLE EVIDENCE IT IS APPARENT THAT THE DECREE APPEALED FROM IS CORRECT, AND THAT JUSTICE HAS BEEN DONE. This principle was applied to equity cases by the court of appeals (Marvin v. Marvin, 2 Abb. Pr. N. S. 102; Lansing v. Russell, 2 Comst. 563). In equity cases a party never has a new trial as a matter of course, but a second trial was always in the discretion of the court, and was granted only when the ends of justice required it. This is the rule still (Marvin v. Marvin, supra; Clark v. Brooks, 2 Abb. Pr. 385 ; S. C., 2 Daly, 159 ; Clayton v. Garrington, 33 Barb. 145 ; 2 Danl. Ch. Prac. 1307 ; Lansing v. Russell, 2 Comst. 563). Even the improper admission or rejection of testimony, or other errors in point of law, are no grounds for granting a new trial in equity cases, except the court can see upon the whole case that injustice has been done (Clark v.
      Brooks, 2 Daly, 159; Lansing v. Russell, supra; Platt v. Platt, 2 N. Y. S. C. Rep. 25, 52). A bill of exceptions is a thing unknown in a court of equity, and an exception in an equity case availeth nothing. The question always is upon appeal, whether upon the whole case, justice has been done (Exp. Storey, 12 Pet. 339, 340).

       As to whether the filling of the blank after or before delivery, under parol authority so to do, will give vitality to the instrument, dubiter.

   By the Court.—Sanford, J.

The right of the plaintiff to maintain this action, upon the facts alleged in the complaint, and found by the learned judge before whom the trial was had, does not seem to me to admit of question. She brings the suit to remove the apparently valid lien of a mortgage, alleged to be void by reason of facts which can only be established by extrinsic evidence. The mortgage constitutes a cloud on her title, and she has reason to apprehend its threatened enforcement. Belief is always accorded in equity under such circumstances, on the principle of preventing irreparable injury, and the party aggrieved need not wait till attacked, but may initiate measures to secure redress.

The case, therefore, presents the naked question of the validity or invalidity of the mortgage, as a security to the defendant, for the advances made by him ; and the answer to that question depends upon the nature and extent of the authority, real or apparent, with which the plaintiff’s husband was clothed, when he assumed to act as the agent of his wife, and to-deal with her property. Only the established and familiar rules which regulate and govern the relation of principal and agent need to be invoked and applied. Wo authority, on his part, to represent and act for her, except to the extent and in the purpose of procuring for her a loan from Bichard Kelly, on the security of the bond and mortgage as originally executed, is disclosed by the evidence, unless such authority may be inferred from his- marital relations, and his possession of the documents. We are therefore to inquire whether those relations, coupled with possession, involve the implication of such authority as was attempted to be exercised.

The legislature of this State has, for more than a quarter of a century, by several successive enactments, steadily declared and adhered to the doctrine that married women are entitled to the same full and complete authority over their own separate estates, whether real or personal, which they could exercise if unmarried ; and has effectually deprived their husbands, as such, of any right of interference therewith. It is, therefore, only in the capacity of an agent for his wife, that a husband can assume to- enter into any engagements with respect to her property, at all obligatory upon her ; and all persons dealing with him while acting in the capacity of agent for her, are bound by the very existence and nature of the intimate, confidential, and delicate relations existing between husband and wife, to exercise, if anything, even greater care and caution in ascertaining the precise extent of, and the precise limitations upon, his derived authority, than there would be occasion for, if no such intimate, confidential, and delicate relations existed.

The general rule is that a special authority must be strictly pursued. The acts of a general agent, within the general scope of his apparent authority, bind his principal, even when not in accordance with private instructions ; but no act of an agent, for a special purpose, in excess of the authority conferred upon him, can affect his principal’s property or rights.

Mo agent can by any act or representation of his own, enlarge the powers with which he is entrusted (N. Y. Life Ins. Co. v. Beebe, 3 Seld. 364; Stringham v. St. Nicholas Ins. Co., 5 Abb. Pr. N. S. 80).

The fact that the agent is the husband of the principal is wholly immaterial in this regard (Deming v. Bailey, 2 Robt. 1).

These general rules, applied to the case under consideration, effectually dispose of it in favor of the plaintiff. John W. Smith was the plaintiff’s agent to procure for her a loan from a particular person, upon the security of a particular instrument, executed by her in favor of that person. When his negotiations to that end failed and were concluded, his agency ceased. His subsequent action was his own, not hers. He bad exhausted his authority, and the mortgage was functus officio. He had no more right to strike out the name of the party in whose favor the mortgage was originally drawn and executed, and to insert another name as mortgagee in its stead, than he would have had to prepare a new mortgage, and sign his wife’s name to it. From the moment of such alteration, the instrument ceased to be his wife’s deed. She may have had special reasons for her willingness to incur the obligation of a loan from a creditor of her own selection, which would be wholly inapplicable in the case of another. She may have relied upon her knowledge of his disposition and temper—his lenity and forbearance. She was dealing with her homestead. In assuming to borrow a less amount of a different creditor, upon a security never executed nor acknowledged by her, her agent violated both the letter and the spirit of Ms instructions, and the defendant, with whom he,dealt, was bound, at his peril, to take notice of the facts.- Indeed, the facts -were all within his actual cognizance.

An examination of a few adjudged causes, some of which are closely analagous to that ndw under consideration, will illustrate fully the principles involved, and their application to the present case.

In Hoffman v. Treadwell (2 N. Y. Supreme Ct. R. 57), which was an action brought by a married woman to set aside and avoid a warranty deed, executed by her to a creditor of her husband and son, and which had been placed by her in the hands of her husband, at his request, without any restrictions as to its use, or directions as to what he should do with it, a judgment for the defendants was reversed on appeal, upon the ground that the husband had no authority to deliver the deed upon any other than the terms prescribed on its face. That its delivery to, and possession by him, accredited him with authority to deliver it to the grantee named in it, upon payment to him, as her agent, of the consideration which it expressed, but not otherwise ; and that no larger or other power could be inferred from its possession, than its precise terms imported. The deed was handed over by the husband to the defendants in the suit, the grantees named therein, in satisfaction of a pre-existing indebtedness due to them from a partnership firm composed of the husband and son, and the defendants, as grantees, had paid off an existing mortgage upon the premises conveyed, executing a new mortgage of the same amount, the proceeds of which had been applied to such payment. The court observed that it would, of course, be necessary to protect the defendants, by a proper decree, from the operation of the mortgage thus given by them, and which had enured to the benefit of the plaintiff; but it was held that against her, the conveyance to them was invalid ; that it was their duty, in dealing with her agent, to ascertain the extent of his powers, and that, in omitting to do so, they acted at their peril; that the property was hers, and that she was entitled to be treated in regard to it, as if she were unmarried ; that, if there be any distinction in such a case, it would require a more rigorous enforcement of the general rule, because “the closer the tie, the greater the liability to abuse, and hence the greater the necessity for the vigilant application of that protection which the courts have applied to the relation of principal and agent, and have thrown around the separate estates of married women.”

Again in Bank of Albion v. Burns (46 N. Y. 170), where a mortgage executed by a wife was given to secure the bond of her husband, and was delivered by him to his creditor, under an agreement that it should be held as collateral security for the payment of all claims and demands on which he then was, or might thereafter become liable, it was held that in the absence of evidence dehors the mortgage, tending to show that such was the wife’s intent, the mortgage could not be treated as a continuing guaranty, and that a subsequent payment of the existing debt operated to discharge the lien, notwithstanding that advances were thereafter made by the creditor on the faith of the security which it was supposed the mortgage and the husband’s agreement afforded. The court declared that the agency to be inferred from the possession of the mortgage must have respect to and be limited by the terms of that instrument; that it could not be extended by implication ; that the most that could be inferred was that the husband had authority to bind the property of the wife by the delivery of the mortgage to the mortgagee for the sum named, payable at the times and in the manner specified in the bond to which it was collateral.

If it be urged that in neither of the cases cited was any specific advance made on the faith of the instrument, we find the answer in the fact that the principle upon which bona fide holders for value are protected, is founded upon the absence of notice, and that, in the present case, as in those cited, the plaintiff had both constructive and actual notice of the wife’s title, and that in such case, the payment of value affords no protection, and creates no superior equity.

Thus in Craver v. Wilson (Ct. of. App., Feb., 1872, 14 Abb. Pr. N. S. 374), where a bond and mortgage executed by a married woman upon her separate estate, and placed by her in the hands of an agent, for the purpose of raising a specific sum of money, to be used for the benefit of her husband and another person, were delivered by the agent, together with another security, to one who advanced upon all the securities delivered the amount of the bond, it being agreed at the time, that the bond and mortgage should also be held as security for a judgment against the agent and others ; it was decided that the mortgage could not be enforced against the wife’s property, although the transaction was an entirety, and notwithstanding that the money advanced had been actually applied to the use of the persons for whose benefit the bond and mortgage were executed.

It will be observed that the cases thus far cited, are cases in which no alteration was made in the terms of the instrument as originally executed. And if the delivery, by an agent, of a deed or mortgage otherwise than in accordance with the authority imported by its precise terms, will render the instrument a nullity in the hands of the grantee or mortgagee named therein, even although no alteration of its terms is required or is made, for the purpose of rendering it available, a fortiori, the making of such alteration on its face, by or at the instance of the agent, and with the knowledge of the person who accepts it, should destroy its validity.

It is even held that a deed or mortgage, executed in blank, that is, without inserting the name of any grantee or mortgagee, may not be filled in, without the express authority of the grantor, evidenced otherwise than by mere delivery ; that such authority can not be inferred with respect to deeds or instruments under seal; and that an instrument in the form of a mortgage, but containing the name of no mortgagee, does not become effectual by delivery to one who advances money upon the faith of an agreement that he shall hold the instrument as security for such advance (Chauncey v. Arnold, 24, N. Y. 330).

It was intimated, in the case last cited, that proof of parol authority to fill up the blank in the mortgage, might perhaps have enabled the holder to enforce it, but as no such proof was given or offered, the judgment of this court, which was adverse to the enforcement of the instrument, was affirmed by the court of appeals.

In Marcy v. Dunlap (5 Lansing, 365), it was held that a material alteration made in a mortgage, without the consent of the mortgagor, either by the mortgagee, or a third person, at his instance, annuls the instrument.

It is quite clear, upon the authority of the cases cited, as well as upon the familiar principles they ill us trate, that the bond and mortgage which form the subject of this litigation are not obligatory upon the plaintiff, and can not be enforced as against her, or her, separate estate.

But it is insisted on the part of the defendant, that the mortgaged premises, although standing in the plaintiff’s name on the record, are, in reality, the property of her husband, and that he has an equitable interest therein; that the plaintiff’s title, if she have any, was derived directly from her husband by a voluntary conveyance, without any actual consideration; that such conveyance was fraudulent and void as against his creditors, and is defeasible at their instance ; and that she can not, therefore, maintain this action against the defendant, a creditor of her husband, who has in good faith made advances to him, on the faith of a mortgage, executed by him as well as by herself.

Without examining the evidence minutely, for the purpose of ascertaining whether it establishes the facts thus asserted, we are of opinion that a defect in the plaintiff’s title constitutes no defense (Craft v. Merrill, 14 N. Y. 456).

if she were seeking to recover possession, it would be necessary for her to show a complete and perfect title in herself. But she is in possession, under title or a claim of title. The defendant, as mortgagee, claims under her, and in subordination to her title, whatever it may be. She may therefore maintain an action to remove the apparent lien of his mortgage, inasmuch as it is valid on its face, but void by reason of facts only susceptible of proof by extrinsic evidence. It is wholly immaterial whether her husband, or his creditors have an equitable interest in the premises enforcible in proper proceedings instituted for that purpose.

The rights of the defendant, as against the husband, and the husband’s interest, if any, in the property, are not affected by the judgment. They were not, nor could they be, determined in this suit. Even if the husband were vested with the legal title, it is by no means clear that an action of this character might not, under the circumstances, be maintained by the wife for the protection and relief of her inchoate right of dower (Simar v. Canaday, 53 N. Y. 298).

We have considered the rulings of thev learned judge, upon questions- of evidence, and are satisfied that no tenable exception can be taken thereto. The decision commends itself to our sense of justice and right, as between the parties.

The judgment must be affirmed, with costs of the appeal.

Speir, J., concurred.