text:
    Aaron Humes, Respondent, v. Thomas E. Proctor and Another, Appellants.

      Trespass in cutting and removing trees — measure of damages — evidence—decla/t'ations of a person in possession of land — treble damages.

    In an action brought to recover damages for trespass in cutting and removing trees growing upon the plaintiff’s land, without his consent, the measure of damages is the difference between the value of the land before the timber was cut and its value after the cutting and destruction of the timber complained of.
    Upon the trial of such action one of the plaintifl’s witnesses testified that the land in question, which was used by the plaintiff as a sugar bush, was worth §1,200 before the timber was cut and §800 afterwards; upon his cross-examination he testified that he did not think the value of the trees that stood there was §500; that the loss to the sap bush might have been that; that his estimate was the cutting of the trees and the loss to the sap bush; that the trees might have been worth to the sap bush §400. The defendant moved to strike out the estimate of the witness as to the value of the property, as being incompetent, not being based upon any market value, and being based solely upon the value of the property for sugar purposes. The motion was denied.

      Held, that the court was justified in denying it;
    That, as the jury awarded to the plaintiff only the value of the trees cut, it was manifest that the defendant was not injured by the ruling.
    One of the defendant’s witnesses gave testimony tending to show that the ‘ ‘ stone corner ” was not the northwest corner of the plaintifl’s sugar bush lot, and, on his cross-examination, testified that he did not tell one Harris that it was. Harris was called by the plaintiff, and testified, under the defendant’s objection, that such witness told him that the “stone corner” was the northwest corner of the plaintiff’s sugar bush lot.

      Held, that the evidence was properly admitted for the purpose of contradicting statements made by the defendants’ witness.
    The declarations of a person in possession of land, as to the extent of his claim or boundary, are admissible to show the extent of the actual occupation by him.
    In such an action treble damages are a legal consequence of the finding of damages by a jury where treble damages are demanded by the complaint, and where there is no affirmative finding by the jury that the injury for which the action was brought was involuntary, or that the defendant, when he committed the injury, had probable cause to believe that the lands in question were his own.
    Appeal by the defendants, Tilomas E. Proctor and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 21st day of May, 1892, upon the verdict of a jury for fifty-one dollars, rendered ' at the Lewis County Circuit; also from an order entered in said clerk’s office on the 16th day of April, 1892, denying the defendants’ motion for a new trial made upon the minutes, and also from an order made at the Jefferson County Special Term and entered in the said clerk’s office of Lewis county on the 21st day of May, 1892, trebling the plaintiff’s damages.

      Watson M. Rogers, for the appellants.

      Kilby <& Kellogg, for the respondent.
   Martin, J.:

This action was for trespass in cutting and removing trees, growing upon the plaintiff’s land, without his consent. Treble damages were demanded in the complaint. The defense was a general denial and a license by the plaintiff to do the acts complained of. The chief question litigated was whether the land upon which the trees in question stood was the land of the plaintiff or belonged to one of the defendants.

The proof on the part of the plaintiff tended to show that it was the plaintiff’s, while the defendants’ evidence was that it belonged to the defendant Proctor. The evidence of the plaintiff was sufficient to justify the jury in finding in his favor. Ilence, the judgment should not be disturbed on the ground of the insufficiency of the plaintiff’s evidence, and it also follows that a nonsuit was properly refused.

The defendants contend that the court erred in certain rulings made on the trial, and for that reason the judgment should 'be reversed. The trespass complained of ivas cutting trees Where a plank road was built through premises claimed by the plaintiff. The proof showed that a portion, at least, of the lot over which this road was built was used by the plaintiff as a sugar bush. This particular lot originally contained about 130 acres. Subsequently the plaintiff gave his- brother fifty acres of it, so that there remained about eighty acres in what was known as the “ sap bush lot.” On the trial the plaintiff, as a witness, was asked the value of the eighty acres before the cutting was done and its value after-wards. This evidence the defendants objected to “ as incompetent, immaterial and not the proper basis for estimating damages, no evidence having been given which justifies proof of damages.” These objections were overruled and the defendants excepted. In this ruling we find no error. The proper measure of damages was the difference between the value of this lot before the timber was cut and its value after the cutting and destruction of the timber complained of. (Argotsinger v. Vines, 82 N. Y. 308, 313; Dwight v. E., C. & N. R. R. Co., 132 id. 199, 202.)

The plaintiff’s witness Norman J. Hosmer gave his opinion that the eighty-acre lot was worth $1,200 before the timber was cut and $800 afterwards. On his cross-examination he was asked by the court if he thought the value of the trees that stood there was $500, to which he replied: “ No, sir. I think the loss to the sap bush might have been that. My estimate was that the cutting of'these trees, the loss to the sap bush — that is the way we estimate — so that the trees might have been worth to the sap bush $400.” The defendants’ counsel subsequently moved to strike out the estimate of the witness as to the value of the property before the building of the plank road, and subsequently, as being incompetent, it not being based upon any market value, and that his estimate was based solely upon the value of the property for sugar purposes. This motion was denied. "We think the court was justified in denying it. Moreover it is manifest that the defendant was not injured by this ruling, as the jury awarded the plaintiff only the value of the .trees cut.

Russet Harris was called as a witness by the plaintiff, and, under the defendants’ objection that the evidence was, incompetent, but not on ground question was not put to Hoy,” was permitted to testify that Nathan Hoy said that the “ stone corner ” was the northwest corner of Humes’ sugar bush lot. This ruling was excepted to by the defendants, and they now insist that the court erred in admitting the evidence. It appears from the appeal book that Hoy had been called as a Avitness by the defendants, and had given evidence which tended to show that the “ stone corner ” was not the northwest corner of the plaintiff’s sugar bush lot, and on his cross-examination had testified that he did not tell Russet Harris that it Avas. That this evidence was admitted for the sole purpose of contradicting the Avitness Hoy is made manifest by the charge of the court. The defendants’ counsel asked the court to charge “ that the declarations of Hoy (if they shall find any were made) to Mr. Harris are no evidence of where the north corner of the one hundred and thirty acre lot is,” to which the court replied: That is true. They were not given as evidence of the fact, but as contradicting other statements made by him.” In this ruling we find nothing that would justify us in reversing the judgment.

Nor do we find any error in the'court’s permitting the plaintiff as a witness to testify that when he and Pahud established the east corner, and put a stake there, the location of the northeast corner of the twenty-nine-acre lot was the subject of conversation. This was at most proving that at the time when the corners of the 130-acre lot were established, attention was called to the northeast corner of his twenty-nine-acre lot. The conversation between them was not admitted, but only proof of the fact that a conversation was had.

The plaintiff testified that along in the winter he saw Mr. Flynn and told him that Doueey had done a lot of damage on his land. This was objected to generally without stating any grounds of objection. The objection was overruled and the plaintiff excepted. On the plaintiff’s cross-examination he had testified that he knew of Flynn and Connell, employees of the defendant Proctor, peeling bark down to the line southwesterly of the plank road. The manifest purpose of calling out this evidence was to show that the plaintiff had not had undisputed possession of the strip of land in question, and that his permitting them to thus cut and peel the timber thereon, without claim of ownership, was an admission of title in the defendant Proctor. To answer these claims it was proper to prove by the witness that he did not submit to these acts in silence, but that at the time he asserted that he had been damaged by the acts of Doueey, who was in their employ. Moreover, the evidence was Avithin the principle that the declarations of a person in possession of land, as to the extent of his claim or boundary, are admissible to show the extent of the actual occupation by him. (Abeel v. Van Gelder, 36 N. Y. 513 ; Donahue v. Case, 61 id. 631.) The court committed no error in admitting this evidence.

"We have also examined the exceptions to the charge of the court, to which our attention has been called by the defendants, but have found none that requires a reversal. The charge was an eminently fair one, and properly presented the case to the jury in a clear and impartial manner. It was as favorable to the defendants as they could properly ask. In it we find nothing improper which could have in any way prejudiced the defendants.

Having now considered all the exceptions to which our attention has been called, the only question left for consideration is as to the propriety of the order trebling the plaintiff’s damages. The complaint was obviously one for treble damages under section 1668 of the Code of Civil Procedure. Section 1661 of the Code provides: “If any person cuts down or carries off any wood, underwood, tree or timber, or girdles or otherwise despoils a tree on the land of another, without the owner’s leave; * * * an action may be maintained against him, by the owner. * * * ” Section 1668 then declares: “ In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum so stated. Thereupon, if * * * where issues of fact are tried, the verdict, * * * awards him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases, judgment must be rendered for single damages only: 1. Where the verdict, * * * finds affirmatively that the injury, for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. 2. Where the defendant has pleaded, and the verdiet, * * * finds affirmatively, that the injury for which the action was brought, was committed by taking timber, for the purpose of making or repairing a public road, or a public bridge, * * * by authority of a commissioner or overseer of highways.” It is quite possible that if the defendants had asked the jury to find affirmatively that the defendants, when they committed the injury complained of, had probable cause to believe that the land belonged to the defendant Proctor, it would have so found. But no such request was made, and the jury did not thus find.

The provisions of the Code are in some respects unlike those of the Revised Statutes. While the latter provided that if, upon the trial, it should appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own, only single damages could be recovered, yet it did not contain tbe provision that the plaintiff: is entitled to judgment for treble the sum awarded, unless the verdict finds affirmatively that the injury was casual and involuntary, or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. The purpose of the change is said by Mr. Throop, in his note to that section, to have been to expressly require the defendant to establish, and the vei’dict to state, the facts which entitle the plaintiff to a judgment for single damages only. .Thus it would seem that, under the statute as it now stands, treble damages are a legal consequence of the finding of damages by a jury in such an action, where there is no affirmative finding by it of any of the facts mentioned in the last two subdivisions of section 1668. Hence, we see no reason to disturb this order.

The judgment and orders must be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment and orders affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    Loren Doing, as Administrator, etc., of Robert P. Hare, Deceased, Appellant, v. The New York, Ontario and Western Railway Company, Respondent.

      Negligence — limitations of the duty of an employer to his employees — defect in implements fw'nished — promulgation of rules.

    An employer does not undertake witli his employees for the absolute sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care ; and when injury to an employee results from a defect in the implements, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it.
    In an action brought to recover damages for injuries caused to the plaintiffs intestate, it was claimed that the defendant, a railroad company, was negligent in not making and promulgating proper and necessary rules for the government of its employees in managing and shifting cars in its yard.
    Upon the trial no evidence was given that any rules were in use by other corporations engaged in business of a similar character, nor by experts or other witnesses to show that any rule was necessary or practicable in such a case, nor was the evidence such as to make the necessity and propriety of making and promulgating the rule contended for so obvious as to make the question one of common experience and knowledge.

      Held, that even if the evidence had been sufficient to sustain a finding that no such rule had been made and promulgated, it was not sufficient to justify the court in submitting the question of the defendant’s negligence to the jury upon that ground.
    Appeal by the plaintiff, Loren Doing, as administrator, etc., of Robert- P. Hare, deceased, from a judgment of the Supreme Court in favor of tbe defendant, rendered at the Chenango County Circuit and entered in the office of the clerk of the county of Chenango on the 16th day of September, 1892, dismissing the plaintiff’s complaint upon the merits.

      W. F. Jenhs and George W. Fay, for the appellant.

      Howard D. Newton, for the respondent.
   Martin, J.:

This action was for negligence. The plaintiff’s intestate was in the employ of the defendant as a car repairer. On March 3, 1890, he was engaged in his work underneath a car that was blocked up for repairs inside of the defendant’s repair shop in the village of Norwich. The shop was about 200 feet long and fifty feet wide. There were three doors in the south end and no window. Three tracks were laid into this shop from the south, which connected with a track running to and connecting with the main tracks in the defendant’s yard. That day, while attempting to place a car, partially loaded, opposite' a pile of scrap iron by the side of one of the tracks leading into the shop, other employees of the defendant drew the car by an engine to a switch about 800 feet from the shop, and then “shunted” or “kicked” the car onto the track from that point. It passed over the distance between the switch and shop and ran through the doors, which were closed, into the shop and fatally injured the plaintiff’s intestate.

The plaintiff claims that the defendant was negligent: (1) In not furnishing his intestate a safe place in which to do his work; (2) in not making and promulgating proper and necessary rules for the government of its employees while managing and shifting cars in its yard; (3) in not keeping tlie brake upon the car wbicb caused tbe injury in proper repair.

A careful examination of tbe evidence fails to disclose any proof which even tended to show that the place where the intestate was engaged in his work was not a safe and proper place for tlie work in which he was engaged. Hence, the court could not have properly submitted that question to the jury.

The next question is whether the defendant was guilty of negligence in not making or promulgating proper and necessary rules for the government of its employees when managing and shifting cars in its yard. We think tlie evidence failed to establish the fact that no such rule was made and promulgated. It was quite to the contrary, and insufficient to justify the jury in so finding.

But if the evidence had been sufficient to sustain such a finding, we should still be of the opinion that it was insufficient to justify the court in submitting the question of the defendant’s negligence to the jury on that ground. In this case no evidence was given that any rule was in use by other corporations engaged in business of a similar character, or by experts or other witnesses to show that any rule was necessary or practicable in such a case. Nor was the evidence such as to make the necessity and propriety of making and promulgating the rule contended for so obvious as to make the question one of common experience and knowledge.

In Berrigan v. N. Y., L. R. & W. R. R. Co. (131 N. Y. 582), in discussing a similar question, it was said: “ The defendant was only bound to use ordinary care in formulating rules, and it is not reasonable to proceed upon the assumption that every injury to an employee can be guarded against and prevented by making such rules. It was the duty of the defendant to anticipate and guard against, by rules or otherwise, only such accidents and casualties as might reasonably be foreseen by the managers of the corporation exercising ordinary prudence and care. * * * In the absence of some proof on the part of the plaintiff that such a rule was in operation by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to tlie effect that such a rule was necessary or practicable under the circumstances, or unless the necessity and propriety of making and promulgating such a rule was so obvious as to make the question one of common experience and knowledge, tlie court is not warranted in submitting such a question to the jury.” (See, also, Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666; Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11.)

Was the evidence such as to require the court to submit the question of the defendant’s negligence to the jury on the ground that the brake upon the car was out of repair % The evidence bearing upon that question was very slight, but perhaps sufficient to have justified the court in submitting the question to the jury if there was any proof that it liad been out of repair a sufficient length of time to justify the jury in finding that the defendant knew of its condition, or was negligent in not ascertaining it- An employer does not undertake, absolutely, with his employees for the sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care; and when injury to an employee results from a defect in the implements, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. (Devlin v. Smith, 89 N. Y. 470; Wright v. N. Y. C. R. R. Co., 25 id. 562; Chapman v. Erie Railway Co., 55 id. 579 ; Baulec v. N. Y. & H. R. R. Co., 59 id. 356; Edwards v. N. Y. & H. R. R. Co., 98 id. 245; Kelly v. New York & Sea Beach R. Co., 109 id 44.) We think the evidence was insufficient to justify the court in submitting to the jury the question of the defendant’s actual or constructive knowledge of the defect in the brake. It is manifest, we think, that the injury to the plaintiff’s intestate was caused by the negligence of his co-employees, and that the court properly nonsuited the plaintiff.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs,


author: Martin, L •

text:
    Clara H. Spencer, Respondent, v. Peter B. Myers, Appellant, Impleaded with Another.

      Life insmance— assignability of a policy upon the life of a hmbandfor the benefit of his wife — meaning of “ issued within the State of New Torh” — chapter 248 of the Loads of 1879.
    Chapter 248 of the Laws of 1879, which provides that “ all policies of insurance heretofore or hereafter issued within the State of New York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the State, shall be from and after the passage of this act assignable by said wife with the written consent of her husband," applies to, and renders assignable by the wife, with the consent of her husband, a policy upon the life of the husband for her benefit, executed outside of the State of New York by a foreign non-resident insurance company, authorized by the laws of this State to do business therein, and sent to its agent in this State for delivery, and delivered here to the assured or the beneficiary, they being residents of this State.
    Where a policy on the life of a husband for the benefit and use of his wife is made and delivered in pursuance of the laws of the State of New York legalizing such policies, and is in full effect and operation in this State, it is to be regarded as “issued ” therein, within the meaning and intent of the statute.

      ,Semble, that the intent and effect of the statute is to make policies upon the life of a husband for the use and benefit of his wife assignable by the wife, with the consent of the husband, in all cases governed by the laws of the State of New York.
    Appeal by the defendant, Peter B. Myers, from a judgment of tbe Supreme Court in favor of the plaintiff, entered m the office of the clerk of Oneida county on the 8th day of December, 1892, on the decision of the court rendered after a trial by the court without a jury at the Oneida Circuit.

      William Kerncm, for the appellant.

      Smith M. Lmdsley, for the respondent.
   Martin, L •

This action was to recover $2,000 and interest upon a policy of insurance upon the life of Byron O Spencer, issued by the Connecticut Mutual Life Insurance Company The company issuing the policy was incorporated under the laws of the State of Connecticut, and had its office in the city of Hartford in that State It was authorized to do business in the State of New York, and had an agent at Utica, who was empowered to take and forward applications for insurance to the home office, and to receive and deliver policies and collect premiums thereon.

The action was originally brought against the insurance company alone An order was subsequently made, permitting the company to pay into court the amount due upon the policy,' and to bring in as defendant Peter B Myers, who also claimed the money. The plaintiff was the wife of Byron O. Spencer, and when the policy was issued, both were residents of the city of Utica. The plaintiff has since been, and is now, a resident of that place. Her husband continued to reside there until October, 1888, when he became a resident of Springfield, Mass., where he resided until his death in January, 1890.

The application for the policy was taken by the insurance company’s agent, who resided at Utica, and was forwarded to the company at Hartford. The policy was subsequently written at Hartford, sent to its agent at Utica, and by him delivered to Byron O. Spéncer, or the plaintiff. The plaintiff and her husband had one child, who is still living.

In 1887, the plaintiff commenced an action for divorce against her husband, and m October of that year an agreement was made between them by which, in consideration of the conveyance to the plaintiff by her husband .of a house and lot in Utica, and certain household furniture, she agreed to accept the same in full payment and satisfaction of her support, and the support, maintenance and education of their child ; and also agreed that she would sign, execute and deliver all necessary releases and assignments of her interest or equities, or that of her child, in or to the policy in question, or the proceeds thereof.

In compliance with this agreement, her husband executed a conveyance of the house and lot, and delivered the same and the household furniture to the plaintiff as he agreed. At the time there was a mortgage on the house and lot held by the defendant Myers, upon which there was then due over $700.

Pursuant to the agreement between the plaintiff and her husband, she, by an instrument in writing, duly executed and acknowledged, assigned and transferred all her interest in said policy to the defendant Myers, to which assignment her husband consented by an instrument in writing duly executed and acknowledged. At the time of receiving such assignment, and in consideration thereof, the defendant Myers executed a satisfaction of the mortgage on the house and lot, and it was satisfied of record. After the assignment of the policy, Myers advanced to, and paid for, the plaintiff’s husband, vari* ous sums-of money, and rendered services for him which amounted, with interest, to over $2,000, no part of which -was ever repaid.

TJpon the death of her husband the plaintiff made proofs of loss and delivered them to the company. The defendant Myers also made and delivered to the company proofs of loss Each claimed the amount due on the policy. The company would pay neither, and the plaintiff commenced this action.

The question in this case was, which of the claimants was entitled to the money. The policy was, by its terms, made payable to the wife if she survived the assured; if not, to his children or their legal representatives. No question arose between the plaintiff or the defendant Myers and the company as to the sufficiency of the proofs, either those furnished by the plaintiff or those furnished by Myers Nor was there any claim by the insurance company that any of the provisions of its policy had been violated or not complied with It paid the amount due into court, and the only question litigated was, which of the claimants was entitled to the money.

On the trial the court held that the policy was not issued within this State in pursuance of the laws of the State; that it was not assignable under chapter 248 of the Laws of 1879, and, hence, that the plaintiff’s assignment was void, and she was entitled to recover the money in question. Therefore, the only question to be considered upon this appeal is whether the assignment by the plaintiff to Myers was valid. It is doubtless true that anterior to the act of 1840 (Laws 1840, chap. 80), a policy on the life of a husband for the benefit of his wife and children was unauthorized. But that act provided for and legalized the issuing of such policies, After its passage the courts of this State imposed upon the title of the wife to policies issued in pursuance of it, certain limitations, which were that she could not dispose of such policy, and that her creditors could not reach it. These decisions were based upon the idea that it was the intent of the Legislature when it passed that act to make provisions for a state of widowhood and for orphan children, and that to hold that the wife might transfer the policy would be in violation of the spirit of the law. After the passage of that act, and after the courts had firmly established the doctrine that policies issued under it could not be assigned by the wife, the Legislature, by chapter 821 of the Laws of 1873, provided that a married woman might surrender her policy issued under the act of 1840, and when she had no children might dispose of it either hy will .or deed, and that the person to whom it should be grantéd or conveyed should be invested with the same rights as she would have had in case she survived the person on whose life the policy was issued. Although under that statute a married woman could assign such a policy only when she had no children, yet its enactment shows a ■ clear intent upon the part of the Legislature to change the rule established by the courts as to the non-assignability of such policies.

Subsequently, the act of 1879 (Laws 1879, chap. 248) was passed. The title to the act is : “ An act for the relief of policyholders in life insurance companies.” Its provisions are: “All policies of insurance heretofore or hereafter issued within the State of New York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the State, shall be, from and after the passage of this act, assignable by said wife, with the written consent of her husband; or in case of her death by her legal representatives, with the written' consent of her husband, to any person whomsoever, or be surrendered to the company issuing such policy, with the written consent of the husband.” That the effect -of this statute was to confer upon the wife authority to assign such a policy, with the consent of her husband, even though she had children, was distinctly held in Anderson v. Goldsmidt (103 N. Y. 617).

As we have already seen, the construction placed upon this statute by the court below was that it applied only to policies of insurance that were actually made and delivered within this State, but that it did not apply to a policy made outside of the State and sent to its agent to he delivered to a beneficiary, 'who, with her husband, were residents, although the insurance company issuing it was authorized by the law of the State to do business therein.

In determining the construction to be placed upon this act, it is proper at the outset to inquire as to the purpose and intent which governed tlie Legislature in passing it. In the interpretation of statutes the great principle which is to control is the intention of the Legislature. This is to be ascertained from the cause or necessity of making the statute, as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the lawmakers it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation, and if these find fair expression in the statute it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some of its provisions. A reasonable construction should be adopted in all cases where there is doubt or uncertainty in regard to the intention of the lawmakers. (People ex rel. Wood v. Lacombe, 99 N. Y. 43.) In this State the title of a statute may be resorted to for aid in discovering the design of the Legislature, and to limit the meaning of general words. (Brick v. Gannar, 36 Hun, 52; People ex rel. Cooke v. Wood, 71 N. Y. 371; People ex rel. West. F. I. Co. v. Davenport, 91 id. 574; People ex rel. Commonwealth Ins. Co. v. Coleman, 121 id. 542.) A court may inquire into the intent of the Legislature with the view of restricting the effect of the general language of an act which in itself is plain and unambiguous, although the power is to be carefully exercised, and the court may, for that purpose, consider the title of the act. (People ex rel. West. F. I. Co. v. Davenport, 91 N. Y. 574; Trustees of Exempt Firemen's Fund v. Roome, 93 id. 313.) The exact and literal wording of an act may be rejected, if, upon a survey of the whole act and the purpose to be accomplished or the wrong to be remedied, it is plain that such exact or literal rendering of the words would not carry out the legislative intent. (Bell v. Mayor, etc., of N. Y., 105 N. Y. 139.)

If we adopt the foregoing rules and consider the title of this act, the cause, necessity and object of its passage, and the other circumstances relating to it, we apprehend there will be but little difficulty in determining the true intent and purpose of the Legislature. The purpose of this statute was declared in its title to be for the relief of policyholders in life insurance companies.” Tt contains nothing which indicates that its purpose was to create a distinction between policies written within the State and those written outside of its limits, or to create a distinction between the policies of resident and non-resident insurance companies, or in any way to give preference to the policies of the one over those of the other.

Again, when we consider the history of the statutes upon this subject, and the decisions made under them, we find that although the Legislature authorized the issuing of such policies, and in no way forbade their transfer, yet the courts held that they were not assignable. To change the rule thus established, the Legislature, by the statute of 1873, abolished it in part. It is quite manifest, we think, that the purpose of the statute of 1879 was to further abolish the rule so as to make such policies assignable, with the consent of the husband in all cases, governed by the laws of this State.

Can it be fairly supposed that it was the purpose and intent of the Legislature, by the passage of this act, to provide two rules in relation to the assignability of such policies; one, that a policy issued by a company authorized by law to do business in the State, and even a resident thereof, is non-assignable where the physical act of writing and sending it is performed out of the State; and the other, that where the physical act of executing it was performed within the State it may be assigned, although made by a non-resident insurer. We think not. It may be, although we do not decide the question, that a policy, where it is signed and sent by mail to an agent to be delivered, can technically be said to have been issued at the place where it was signed and from which it was sent. But if it be true, would any fair construction of this statute justify us in holding that the Legislature intended to use the word issued ” in that strict and technical sense. It seems to us not. We think the word “ issued ” was used in a broader and different sense, and that where a policy on the life of a husband for the benefit and use of his wife, is made and delivered in pursuance of the laws of the State legalizing such policies, and it is in full effect and operation in this State, it is to be regarded as issued therein within the meaning and intent of that statute. A contrary construction would lead to absurd results. If this statute were to be construed as applicable only to policies which were executed and delivered within the borders of the State, it would follow that whenever a policy was made and delivered outside its borders it would be non-assignable, even though the insurer, assured and beneficiary were all residents of the State. And it would also follow that no such assignment could be safely taken unless accompanied by conclusive evidence that the policy was actually made, executed and delivered within the borders of the State. We cannot think the Legislature intended to pass a statute which would be followed by any such absurd and inconvenient results. Moreover, so far as we find any authority bearing upon the question, it seems to be in accord with the conclusion we have reached.

In Brick v. Campbell (122 N. Y. 337, 345), Potter, J., in referring to the question, said: “We are not referred by the respondent to any, nor am I aware of any, case where it is held or intimated that it makes any difference as to the assignability of insurance contracts, whether the. policy was issued by a corporation created under the laws of this State. The several acts of the State in relation to policies issued for the benefit of a wife, or wife and children, make no such distinction, and I can see none in principle, but quite the contrary.” In Connecticut Mutual Life Insurance Company v. Van Campen (32 N. Y. St. Repr. 1125) it was held that an assignment by the husband and a ratification by his wife were valid where the policy was issued by the company that issued the policy in this case. The policy in Wilson v. Lawrence (13 Hun, 238) was also one issued by the Connecticut Mutual Life Insurance Company.

Thus far we have treated the contract between the parties as one governed by the laws of this State. If, however, it is to be regarded as a contract under the laws of the State of Connecticut, it would seem that under the laws of that State the assignment of the policy was valid. (Connecticut Mutual Life Insurance Company v. Westervelt, 52 Conn. 586.)

We think the court below erred in holding that the assignment by the plaintiff was void, and that the judgment should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Judgment reversed and a new trial ordered, with costs to abide the event.


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    David Aldridge, as Superintendent of the Poor of Oneida County, N. Y., Appellant, v. Mary Walker, Respondent

      When the decision, of a motion is res adjudicates — when a judgment is conclusive — presumption as’isingfrom proceedings in (the Oowt of Sessions) a court of superior jurisdiction — order directing payment of moneys to a superintendent of the poor — hem modified — cannot he questioned collaterally.

    Whenever a motion admits of grave discussion and deliberation, and is made a part of the record of a cause, and subject to review in another court, the decision by a court upon such motion is generally regarded as a final judgment or adjudication establishing an indisputable obligation on the part of the person against whom it is rendered, and therule of res adjudicata applies.
    The former judgment of a court of competent jurisdiction is conclusive between the parties, or others claiming under them, upon the same matter directly in question, in a subsequent action or proceeding.
    When proceedings have been had in a court of superior jurisdiction the presumption arises that it acted in accordance with the forms of law and the rules of practice governing it, and not until every prerequisite prescribed by law had been complied with, unless the contrary, appears on the face of the record, and also that it possessed jurisdiction of the subject-matter, that the parties were properly brought before it; that its powers were properly invoked by a suitable application made to it; that the process was properly served, and that the subject-matter was one it had authority to try.
    The Court of Sessions is a superior court and its jurisdiction is presumed.
    If the person directed by an order of the Court of Sessions to pay a certain sum of money per week, payable monthly to a superintendent of the poor, to be applied exclusively to the support of her daughter, desires- to relieve herself from the effect thereof, she should apply to the Court of Sessions under the provisions of section 918 of the Code of Civil Procedure for its modification, but so long as the order remains unchanged such person is, by force of the statute, liable to pay the sum therein prescribed.

      Semhle, that the obligation to pay the money to the superintendent may be avoided by proof of the maintenance of the daughter in a manner approved by the overseer of the poor of the town, or the superintendent of the county, as provided by section 914 of the Code of Criminal Procedure.
    Such an order is not void because it gives no option to such person either to support her daughter or to pay the amount provided, and if it is irregular or improper the remedy is by appeal, and the question of its irregularity or impropriety cannot be properly raised in an action brought to collect the amount directed to be paid by such person and unpaid by her.
    Appeal by the plaintiff, David Aldridge, as superintendent of the poor of Oneida county, N. Y., from a judgment of nonsuit granted in tlie County Court of Oneida county and entered in tlie office of the clerk of the county of Oneida on tlie 7th day of March, 1893.
    Sarah Walker is the daughter of the defendant. On April 4, 1884, the Court of Sessions of Oneida county made an order which recited the reading and filing the application of the superintendent of the poor of Oneida county and due proof of the service of notice of such application upon the defendant, and after hearing the proof and allegations on the part of said applicant, no one appearing to oppose, and then ordered that the defendant pay to the superintendent of the poor of Oneida county tlie weekly sum of six dollars each and every week from the date of the order until the further order of the court, such sum to be used exclusively for the support and maintenance, from and after that date, of the said Sarah Walker, and also that the defendant pay the superintendent ninety-five dollars for his costs and expenses, to be paid within twenty days after the service of a duly certified copy of the order.
    Subsequently, an order was made allowing the defendant to appear and defend that proceeding, notwithstanding her default. On the 17th day of June, 1887, at a Court of Sessions held in and for the county of Oneida, an order modifying the former order was made, whereby, after reciting that an order for a rehearing had been made and that a rehearing was had and evidence given thereon, it was provided that the order made at the preceding term of the court, awarding six dollars per week for the support of Sarah Walker, should be modified and the amount be reduced to three dollars per week, to be paid monthly to the superintendent of the poor of Oneida county, and not weekly as provided in the former order The costs of the proceeding and the sum named in the order were paid by the defendant until May 29, 1888, but nothing was paid after that time. This action was commenced November 18, 1890, to recover the amount directed to be paid by such orders, and becoming due by the provisions thereof after the 29th day of May, 1888.
    On the trial the plaintiff introduced in evidence certified copies of the orders made by the Court of Sessions on April 4, 1887, and June 17, 1887, respectively. The proof also tended to show that Sarah Walker had sometimes been an inmate of the poor house, of Oneida county and at other times not; that she was discharged from the county house July 10, 1886, and was not there again until May, 1891, after the commencement of this action, and that the defendant had neither maintained and provided for her daughter nor paid the sum prescribed by the order after May 29,1888.

      Howard G. Wiggins, for the appellant.

      Smith M. Lindsley, for the respondent.
   Martin, J.:

The proceedings which resulted in the orders requiring the defendant to pay three dollars a week for the support of her daughter were instituted under the provisions of title 8 of the Code of Criminal Procedure, which are substantially like the provisions of the Revised Statutes as they existed before the adoption of the Code. (Herendeen v. De Witt, 49 Hun, 55.)

That title defines the liability in such cases, and prescribes the procedure to enforce it.

The respondent seeks to uphold the judgment in this action upon the ground that no cause of action existed when the suit was commenced. He claims that as there was no evidence to show that the superintendent of the poor had either maintained the defendant’s daughter, or paid for her maintenance before this action was brought, no cause of action existed against the defendant in favor of the plaintiff.

It will be seen, however, that section 920 of the Code of Criminal Procedure provides that if a relative, required by an order of the court to relieve or maintain a poor person, neglects to do so in the manner approved by the officers mentioned in section 914, and neglects to pay the sum prescribed by the court, the officers may maintain an action against the relative, and recover therein the sum prescribed by the court for every week the order has been disobeyed to the time of the recovery.

In this case it was shown that the defendant had neither provided for her daughter nor paid the sum prescribed in the order. Under such circumstances, the order being in full effect, we think the plaintiff was entitled to recover the sum prescribed thereby. If the defendant desired to relieve herself from the effect of the order, she should have applied to the Court of Sessions under the provisions of section 918 for a change of it, but so long as the order remained unchanged, the defendant was, by force of the statute, liable to pay the sum therein prescribed.

While the determination provided for by title 8 is denominated an order, it was a final determination of the matter, and in effect a judgment. Whenever a motion admits of “grave discussion and deliberation, and is made part of the record in a cause and subject to review in another court,” the decision by a court upon such motion is generally regarded as a final judgment or adjudication, establishing an indisputable obligation on the part of the person against whom it is rendered, and the rule of res judicata applies. (Dwight v. St. John, 25 N. Y. 203 ; Herman on Estoppel and Res Judicata, §472, and cases cited in note 1.)

The general rule on the subject is that a former judgment of a court of competent jurisdiction is conclusive between the parties, or others claiming under them upon the same matter directly in question in a subsequent action or proceeding. “ Such judgment or determination is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have been litigating, and have had decided as incident to, or essentially connected with, the same subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defense.’’ (1 Herman on Estoppel, § 411; Harris v. Harris, 36 Barb. 88; Bruen v. Hone, 2 id. 586 ; Embury v. Conner, 3 N. Y. 511; Haire v. Baker, 5 id. 357; Davis v. Tallcot, 12 id. 184; Hayes v. Reese, 34 Barb. 156; Clemens v. Clemens, 37 N. Y. 74; Dolan v. Mayor, etc., 62 id. 475, Matter of Department of Parks, 73 id. 565; Mayer v. Mayor, ete., 101 id. 288; Pray v. Hegeman, 98 id. 351, 358 ; Stowell v. Chamberlain, 60 id. 272; Dunham v. Bower, 77 id. 76; Griffin v. Long Island R. R. Co., 102 id. 449; Campbell P. P. & M. Co. v. Walker, 114 id. 7.)

We are of the opinion that the defendant could not dispute her liability under the order, nor avoid a recovery for the amount prescribed, except, perhaps, by showing that she maintained her daugh - ter in a manner approved by the overseer of the town, or superintendent of the county, as provided by section 914, or by proving that she had paid the superintendent the amount prescribed by the order. As no such proof was given, we think the defendant was liable, and that the plaintiff was entitled to recover. .

It is, however, contended by the respondent that the Court of Sessions had no jurisdiction or authority to make the order upon which this action is based, and the following grounds are stated as the basis for such contention:

1. That the plaintiff had no right to maintain the action, except as given by section 920 of the Code of Criminal Procedure, and he did not make a case according to the provisions of that section, because he did not,prove that the defendant had neglected to relieve or maintain her daughter in a manner approved by the officers mentioned in section 914;

2. That the Court of Sessions which made the order was an inferior court of limited jurisdiction, and it was incumbent on the plaintiff to show that it acquired jurisdiction to make the order;

3. That the order was void upon its face as it' did not show that the Court of Sessions had jurisdiction of the subject-matter, and there was no proof on the trial to show such jurisdiction ;

4. That it had no jurisdiction to make the order because there was no proof that Sarah Walker was in. the county when the proceeding was commenced or order made by the Court of Sessions, or that Mary Walker was legally bound to support her daughter, or that any application was made as required by statute;

5.. That the order was void because it gave no option to the defendant to support or pay.

The difficulty with the first ground of the plaintiff’s contention is that it does not appear to be sustained by the facts. The evidence disclosed not only that the defendant had paid no portion of the amount directed to be paid by the order since May 29, 1888, but that she had in no way supported, maintained or provided for her daughter during that time.

The second, third and fourth grounds of the respondent’s contention relate to the jurisdiction of the court which made the order. It seems to be settled that when proceedings have been had in a court of superior jurisdiction, the presumption arises that it acted in accordance with the forms of law and the rules of practice governing it, and not until every prerequisite prescribed by law had been complied with, unless the contrary appears on the face of the record. The further presumption also arises that it possessed jurisdiction of the subject-matter; that the parties were properly brought before it; that its powers were properly invoked by a suitable application made to it; that the process was properly served, and that the subject-matter was one it had authority to try. (Brown on Jurisdiction, § 20a. See, also, Gosset v. Howard, 10 Q. B. 453; Potter v. Merchants’ Bank, 28 N. Y. 656; Bosworth v. Vandewalker, 53 id. 597; Wright v. Nostrand, 94 id. 45.) Hence, if the Court of Sessions was a court of superior jurisdiction, then the presumption was that all the proceedings necessary to give the court jurisdiction were had, and that the judgment or order was regular and valid.

In the case of People v. Bradner (107 N. Y. 1) it was held that the Court of Sessions is a superior court and its jurisdiction is presumed. The principle of that case seems to be decisive of the question.

Nor do we think the respondent’s fifth ground valid. The order cannot be treated as void because it gave no option to the defendant to support her daughter or pay the amount provided. If it was irregular, or for any reason improper, the remedy of the defendant was by appeal, and the question of the irregularity or impropriety of the order could not be properly raised in this action.

These considerations lead us to the conclusion that the trial court erred in nonsuiting the plaintiff, and that the judgment should be reversed.

Hardin, P. J., and Merwin, J., concurred.

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


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    William H. Carrier, Respondent, v. The United Paper Company, Appellant.

      Covenant to assume a mortgage — when an action cannot be maintained thereon — attachment.

    An action brought to bold the owner of certain premises liable under a provision contained in the deed thereof to him, that he purchased the same subject to two certain mortgages, and his agreement therein contained to assume and pay the same as a part of the consideration and purchase price of said premises, cannot be maintained unless it is alleged and proved that the grantors of such owner were in some way liable to pay to the plaintiff therein or to his assignors, the debt secured by the mortgages, or at least that they had a legal interest in having the covenants in such deed performed.
    To secure a warrant of attachment in such an action it is necessary to show by affidavit that the grantors of such owner were so liable to the plaintiff, or had such legal interest in having the covenants in such deed performed.
    Appeal by tbe defendant, the United Paper Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oswego June 15, 1893, denying a motion to vacate an attachment, and also by Frederick 3L Day, as receiver of the defendant, the United Paper Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oswego on the 14th day of August, 1893, denying a motion made by such receiver to vacate an attachment.
    /. AT. Ames, for the appellant.

      W. G. Tracy, for the respondent.
   Martin, J.:

The question in this case arises upon two appeals; one from an order denying the defendant’s motion to vacate an attachment granted herein, and the other from a similar order upon a motion made for the same purpose by the receiver of the defendant. The ground of both motions was that the affidavit and papers upon which the attachment was granted failed to show that a cause of action existed against the defendant.

The statements contained in the affidavit upon which the attachment was issued, at least so far as they bear upon the question involved on this appeal,, were substantially that a cause of action existed in favor of the plaintiff against the defendant to recover the sum of $3,231 as damages for breach of contract arising from the following facts : That on and prior to October 1, 1892, Herbert D. Wood and George D. Davis were the owners in fee and in possession of certain premises described; that by deed from said Wood and Davis, in which their wives joined, the defendant, for a valuable consideration, became the purchaser of said premises, and, among other things, assumed and agreed to pay to one Charles W. Aven-, this plaintiff’s assignor, a certain mortgage upon said premises,” given to secure the payment of the sum of $3,000, with interest from December 13, 1891, which was then due and owing to said Avery thereon; that the deed contained the following provision: “ Said premises are conveyed subject to two certain mortgages, one executed to Charles W. Avery, December 13th, 1886, for $3,000, upon which there is due the sum of $3,000, with interest from December 13th, 1891, and one for $6,500, executed to Charles W. Avery, May 12th, 1892, upon which there is unpaid said sum, with interest, which said mortgages the said party of the second part assumes and agrees to pay as a part consideration and purchase price of the above-described premises; ” that the defendant duly accepted said deed, caused it to be recorded, toot possession of the mortgaged premises, and has ever since been and now is in possession of the same; that before the commencement of this action said mortgages, with all the rights of action under said deed and covenant on the part of the defendant, were assigned by said Avery to the plaintiff, who is now the owner and holder thereof, and that by reason of the premises, the defendant was justly indebted to the plaintiff in the sum of $3,231, with interest from May 25, 1893, which sum is now due and wholly unpaid; that deponent was justly entitled to recover said sum from said defendant, over and above all counterclaims, discounts and set-offs known to the plaintiff; that the above-entitled action was brought for said cause and the summons therein had been issued; that the defendant was a foreign corporation, and that the cause of action arose in this State.

The same facts were stated in the complaint and ate substantially all the facts that were stated as a ground for the issuing of the attachment, or as constituting a cause of action against the defendant.

The claim of the appellant is that the covenant to pay the $3,000 mortgage was not made with Avery, nor for his benefit, but for 'the benefit of "Wood and Davis, and that the plaintiff cannot recover without showing that, at the time of such conveyance, Wood and Davis were personally liable to pay the mortgage debt. The success of this appeal depends upon the correctness of that claim.

In King v. Whitely (10 Paige, 465), where the grantee of mortgaged premises, who was neither legally nor equitably interested in the payment of the bond and mortgage, except so far as the same was a charge uppn his interest in the premises, conveyed the mortgaged premises subject to the mortgage, and the conveyance recited that the grantees therein assumed the payment of the mortgage, and were to pay off the same as a part of the consideration of the conveyance, it was held that as the grantor was not personally liable to the holder of the mortgage to pay the same, the grantees were not liable to the holder of such mortgage for the deficiency. The same doctrine was held in Trotter v. Hughes (12 N. Y. 74) and in Garnsey v. Rogers (47 id. 233), where the case of King v. Whitely was cited with approval.

The question again arose and was decided in Vrooman v. Turner (69 N. Y. 280). It was there again held that a grantee of mortgaged premises, whose conveyance recited that the land was conveyed subject to a mortgage, and that the grantee assumed and agreed to pay the same as part of the consideration, Avas not liable for a deficiency arising upon a foreclosure and sale, in case the grantor was not personally liable, legally or equitably, for the payment of the mortgage. In delivering the opinion in that case, Judge Allen said: “ The rule which exempts the grantee of mortgaged premises subject to a mortgage, the payment of which is assumed in consideration of the conveyance as between him and his grantor, from liability to the holder of the mortgage when the grantee is not bound in law or equity for the payment of the mortgage, is founded in reason and principle, and is not inconsistent Avith that class of cases in which it has been held that a promise to one for the benefit of a third party may avail to give an action directly to the latter against the promisor, of which Lawrence v. Fox (20 N. Y. 268) is a prominent example. To give a third party, who may derive a benefit from the performance of the promise, an action, there must be, first, an intent by the promisee to secure some benefit to the third party, and second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.”

In Cashman v. Henry (75 N. Y. 103) the doctrine of the preceding cases was recognized and followed, and, also, in Thayer v. Marsh (Id. 340); Pardee v. Treat (82 id. 387, 388); Dunning v. Leavitt (85 id. 35); Carter v. Holahan (92 id. 504); Matter of Wilbur v. Warren (104 id. 192, 197) ; Litchfield v. Flint (Id. 550); Beveridge v. N. Y. E. R. Co (112 id. 26); Comley v. Dazian (114 id. 161); Frank v. N. Y., L. E. & W. R. R. Co. (122 id. 221); Lorillard v. Clyde (Id. 504); Wager v. Link (134 id. 125).

In Durnherr v. Rau (135 N. Y. 219, 222), which is the latest case we find in the Court of Appeals on this subject, Judge Andrews said : “ There is lacking in this case the essential relation of debtor and creditor between the grantor and a third person seeking to enforce such a covenant, or such a relation as makes the performance of the covenant at the instance of such third person a satisfaction of some legal or equitable duty owing by the grantor to such person, which must exist according to the cases in order to entitle a stranger to the covenant to enforce it. It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties, and in addition the grantor must have a legal interest that the covenant be performed in favor of the party claiming performance.”

A somewhat extended and careful examination of the cases bearing upon this question has disclosed that the courts have with unusual uniformity held that to render such a covenant available to a third person, the grantor must have a legal interest in having the covenant j>erformed in favor of such third jjerson. And thus I am lead irresistibly to the conclusion that neither the plaintiff nor his assignor could maintain an action on the covenant contained in the deed to the defendant, without alleging and proving that the grantors were in some way liable to pay to the plaintiff or his assignor the debt secured by the mortgage mentioned, or at least that they had a legal interest in having the covenant in such deed performed. As no such facts are stated, either in the verified complaint or affidavit upon which this attachment was granted, it seems to me clear that the plaintiff failed to show by affidavit that a cause of action existed against the defendant.

To entitle a plaintiff to a warrant of attachment he must by affidavit show sufficient facts to establish a cause of action against the defendant. (Jacobs v. Hogan, 85 N. Y. 243, 244; Manton v. Poole, 67 Barb. 330; Walts v. Nichols, 32 Hun, 276 ; Belden v. Wilcox, 47 id. 331; Pomeroy v. Ricketts, 27 id. 242; Marinette Iron Works v. Reddaway, 13 N. Y. Supp. 426; Westervelt v. Agrumaria Sicula Societa Anonima Di Transporti Marittimi, 58 Hun, 147; McCulloh v. Aeby & Co., 31 N. Y. St. Repr. 125 ; Pride v. Indianapolis, D. & W. Ry. Co., 21 id. 261; Reilly v. Sisson, 31 Hun, 572; Cattaraugus Cutlery Co. v. Case, 30 N. Y. St. Repr. 961; Moore v. Becker, 13 id. 567; Labalt v. Schulhof, 22 id. 532 ; Smadbeck v. Sisson, 31 Hun, 582 ; Wessels v. Boettcher, 69 id. 306.)

We think the affidavits and papers upon which the attachment in this case was granted were insufficient, and that the Special Term erred in denying the motions to vacate it.

The orders of Special Term must be reversed, with ten dollars costs and disbursements, and motions to vacate attachment granted, with ten dollars costs to defendant.

Hardin, P. J., and Meewin, J., concurred.

Orders of Special Term reversed, with ten dollars costs and disbursements, and motion to vacate attachment granted, with ten dollars costs to defendant.


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    Clara J. Brown, Appellant, v. Sally Allen and Others, as Administrators, etc., Respondents.

      Pa/rtial eviction — measure of damages therefor under a covenant of warranty — effect of the cutting of trees by the grcmtee.

    ■When an eviction is total, a grantee may recover under a covenant of warranty the amount of tlie purchase money, with interest from the time lie lost the mesne profits, not to exceed six years, hut when an eviction is partial, the measure of the damages is such part of the original price of the property as hears the same ratio to the whole consideration thereof that the value of the land to which the title has failed bears to the value of the whole.
    A person purchased timber lands and received a deed therefor containing the usual covenant of warranty, and gave back a purchase-money bond and mortgage. During his occupancy of such land, he denuded the same of the timber thereon which formed the chief value of the property purchased. Thereafter he was evicted therefrom by a paramount title.

      Held, that the eviction was partial and not complete;
    That the damages recoverable represented only such part of the original purchase price as the value of the land at the time of the change in the title thereto bore to the value of the land with the timber thereon.
    Appeal by tbe plaintiff, Clara J. Brown, from a judgment of tbe Supreme Court in favor of tbe defendants, dismissing tbe plaintiff’s complaint upon tbe merits, entered in tbe office of the clerk of tbe county of Lewis on tbe 14th day of April, 1893, upon a decision of tbe court after a trial by tbe court at tbe Lewis County Circuit.
    May 24, 1870, Marietta L. Brown sold and deeded to Allen & Nortliam, 357.14 acres of timbered land in Lewis county for $3,171.40, of wliicb $671.40 was-paid down by cash and a note. Tbe balance was secured by a bond, with a mortgage, on tbe same lands. Tbe deed was executed by Mrs. Brown and her husband and contained tbe usual covenant of warranty. Brown died tbe following August. Allen & Northam took immediate possession, and began cutting tbe hemlock trees, and peeling tbe bark therefrom. Practically all tbe hemlock, spruce, pine and valuable bard wood were removed within three years. The bond and mortgage were not executed and delivered until January, 1872, and $969.66' was paid thereon July 18, 1874.
    Tbe mortgage was assigned to the plaintiff in January, 1873. Northam died intestate before this action was brought. There was unpaid on tbe bond, August 10, 1892, $4,823.11. There was a Comptroller’s sale of tbe premises, or some part thereof, September 23, 1871, for alleged taxes for tbe years 1861 to 1865, inclusive. There was another Comptroller’s sale of tbe premises, October 16, 1877, for alleged taxes for tbe years 1866 to 1870.
    The action was on tbe bond given for a part of tbe purchase price of tbe lands in question. Tbe answer set up the conveyance from Mrs. Brown to Allen & Northam, tbe covenants contained in that deed, and averred that tbe title and possession were lost by a paramount title acquired in virtue of sales for taxes, which were liens prior to the conveyance.
    These facts were alleged separately by way of total defense for failure of consideration, as a partial defense for partial failure, as a set-off, or recoupment of damages, and by way of counterclaim.
    The court received in evidence five Comptroller’s tax deeds, recorded more than two years before suit, which it was claimed covered all the premises and deprived Allen & Northam of all they took under the Brown deed. The court also received, under the plaintiff’s exception, Appendix 0 of the first report of the Forest Commission, made to the Legislature May 18, 1886, to prove eviction of Allen & Northam by the State from the lands in question. The plaintiff put in evidence the proceedings of the board of supervisors for 1860 to 1870, inclusive, which omitted to show that there was any action in estimating and “ setting down ” in column 5 the tax against each piece of property in the town where this property was situated, and in delivering the official tax list and a warrant to the collector.
    The court found and decided that Allen & Northam lost all their title by reason of the tax deeds; that there was a total eviction, and that the consideration for the bond wholly failed.
    At the time of the alleged eviction, the premises were practically denuded of timber and were not worth to exceed $357.15.

      O. D. Adams, for the appellant.

      Thomas 8. Jones, for the respondent.
   Martin, J.:

This action has been here on a former appeal. The questions as to the eviction of the plaintiff, and the admissibility in evidence of the acts of the Forest Commission, were then considered by this court. The only question we deem necessary to consider at this time is, whether the court was justified in finding that the consideration for the bond in suit had totally failed, and, therefore, that the plaintiff was not entitled to recover.

This decision was based on the theory that there had been a complete eviction of the grantees under a paramount title, and, hence, their representatives were entitled to recover of the obligee in the bond, who was their grantor, the full sum of the consideration price mentioned in the deed to them, with interest, so that no recovery could be had by the plaintiff because of such failure of title and consequent eviction.

The appellant, however, contends that the evidence was insufficient to sustain the finding of the court that there was a total eviction as to all the property that passed by the deed. The undisputed proof was that the grantees in the deed from Brown, while in possession of the property conveyed, removed from the land a large portion of the timber standing thereon when the deed was given. It was also proved that the chief value of the land at the time of- its sale was in the timber. As the trees standing upon the land when the deed was given were a part of the real estate, and passed as such by the deed, and as they constituted the principal value of the real property purchased, can it be properly said that there was such a complete eviction as to entitle the grantees to recover the full consideration paid or agreed to be paid therefor, or to insist that the consideration for the bond given by them had totally failed ?

While the general rule, so far as it can be regarded as settled in this State, is to the effect that when the eviction is total, the grantee may recover the amount of the purchase money, with interest from the time he loses the mesne profits, not to exceed six years (Staats v. Ten Eyck, 3 Caines, 111; Pitcher v. Livingston, 4 Johns. 1; Bennet v. Jenkins, 13 id. 50 ; Baldwin v. Munn, 2 Wend. 399 ; Dimmick v. Lockwood, 10 id. 142 ; Kinney v. Watts, 14 id. 38; Kelly v. The Dutch Church of Schenectady, 2 Hill, 106; Hunt v. Raplee, 44 Hun, 149, 155), yet when the eviction is partial, the measure of damages is such part of the original price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole.” (Sedg. on Dam. [8th ed.] § 970 ; Hunt v. Raplee, 44 Hun, 149.)

In Hymes v. Esty (133 N. Y. 344), which was an action on a covenant of quiet enjoyment, where the breach consisted in the existence of a public street across the premises, Maynard, J., who delivered the opinion of the court in that case, said : “ The damages lawfully recoverable in such cases may be commensurate with the eviction, but cannot exceed it.” And it was held that the measure of damages was the depreciation in value, if any, of the lot at the time of tlie eviction, caused by tbe existence of tlie easement, witli intei*est from tliat time, and plaintiff’s costs in tlip action which resulted in the eviction.

In Huyck v. Andrews (113 N. Y. 82), which was an action for breach of covenant in a deed which conveyed certain lands and therewith an easement, it was held that the proper measure of damages for a breach of the covenant as to tlie easement was the difference between tlie value of the land without and with the easement.

While we have been cited to no case where the precise question here involved has been determined, still we are of the opinion that the defendants were not entitled to be allowed the full amount of' the purchase price of the premises as their damages for the breach of the covenant in the deed to Allen & Northam. If the rule adopted by the court is an absolute one which must be applied in all cases, its injustice can hardly be better illustrated than by this case. Here the grantees under the deed have received the timber, which was substantially all that they desired to purchase, and constituted at least nine-tenths of the value of the whole property. Yet, notwithstanding the fact that they have had the timber, they now ask, and the court at Circuit has in effect awarded them, substantially the whole value of the land and trees purchased, on the theory that their eviction was complete, and that under the rule of damages applicable in this case, they were entitled to be allowed that amount. I cannot believe that to be the law. Such a rule would be too repugnant to every sense of right and equity to exist where law is presumed to be based upon principles of justice.

We are of the opinion that the eviction in this case was but partial. The most valuable part of the real estate purchased had been enjoyed by the purchasers, and they have reaped the benefit of its removal and sale. Hnder such circumstances, the damages to be allowed them or their representatives should be only those that are commensurate with the eviction and their consequent loss. If allowed such part of the original price as bears the same ratio to the whole consideration that the value of the land at the time of tlm eviction bore to the land with the timber, they would receive all to which they are justly entitled. If some portion of the timber was removed after the title failed, as to that they might be liable to the-present owners, and to that extent entitled to be allowed its value in ■addition to tlie proportionate value of the land. We think the' ■court erred in holding that the eviction of Allen & Northam was total, that the whole consideration for the bond had failed, and that ■the plaintiff was not entitled to recover thereon. For this error, we ■think the judgment should be reversed.

Upon a new trial it may appear more clearly what amount of ■timber, if any, was removed subsequent to the change of the title to .the premises, and thus it may be determined whether the defendants are entitled to be allowed more than the proportion which the value of the land bore to the value of the land with the timber.

The j udgment must be reversed and a new trial granted, with ■costs to abide tlie event.

Hardin,. P. J., and Merwin, J., concurred.

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


author: Per Curiam :

text:
    Jerome J. Woodruff, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.

      Conflict of evidence — case properly submitted to the jury.

    Where, upon the trial of an action brought to recover damages caused by the .alleged narrowing of a bridge and the obstruction of a stream by the defendant, Fy reason of which water was caused to flow upon and damage the plaintiff’s land, the evidence on behalf of the plaintiff tends to sustain the allegations of •the complaint, and the evidence of the defendant is calculated to show that the Fridge was not narrowed or the stream obstructed to the extent claimed by the plaintiff, and that the plaintiff’s injury was not the result of any improper ■or negligent act of the defendant, but resulted from other causes, the case is properly submitted to the jury and its verdict should not be disturbed.
    Appeal by the defendant, the Syracuse, Binghamton and New York Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 11th day of April, 1892, upon the verdict of a jury for $400 rendered at the Cortland Circuit, and also from an order made and entered in said clerk’s office on the 24th day of J anuary, 1893, denying the defendant’s motion for a new trial on a case, and also from the judgment entered in said clerkV office on the 24th day of January, 1893, denying said motion for a new trial.

      Jenney c& Marshall, for the appellant.

      FrcmTdin Pierce, for the respondent.
   Per Curiam :

The plaintiff’s evidence tended to show that the defendant, by narrowing a bridge rebuilt by it on the line of its railroad, and by placing and leaving in the stream under or near it a quantity of stones, cement and other materials, so obstructed the stream as to cause the water thereof to set back upon his premises, which were used partly as meadow and pasture and partly as a brick yard ; that by reason thereof he sustained damage to an amount greatly in excess of the amount of the recovery herein.

The evidence of the defendant, however, was calculated to show that the bridge was not narrowed or the stream obstructed to the extent claimed by the plaintiff, and that the plaintiff’s injury was not the result of any improper or negligent act of the defendant, but resulted from other causes for which it was not responsible.

Upon conflicting evidence the court submitted the case to the jury by a charge which was certainly as favorable to the defendant as it could properly ask. The jury found for tlie plaintiff. A careful •reading of the evidence contained in the appeal book has lead us to the conclusion that upon the proof the question was for the jury ; that the evidence was sufficient to justify the verdict, and that the judgment should not be disturbed unless there was some ruling which requires a reversal.

.We have carefully examined all the rulings of the court and exceptions to its charge to which our attention has been called by the appellant in its brief, but have found none that require a reversal •or that need be specially considered.

The judgment and order must be affirmed, with costs.

Present — Hardin, P. J., Martin and Merwin, JJ.

Judgment and order affirmed, with costs.


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    Arthur Hopson Sawyer, by Jesse Hopson, his Guardian ad litem, Appellant, v. William Cubby and Another, as Executors, etc., of Jennie Sawyer, Deceased, Respondents, Impleaded with Eunice Baker and Others.

      Construction of a will — a, legacy void for unduly suspending the power of alienation — attempt to accomplish indirectly that which would be void if done directly.

    A legacy to take effect only on the happening of an event in the future, which will not necessarily take place within two lives in being at the death of the testator, is void.
    In an action brought to obtain a construction of a will it appeared that a clause therein contained read as follows :

      “Fifth. In the event that William Cubby, of Syracuse, N. Y., shall promptly pay all assessments, dues and premiums which during my life shall become due and payable on any insurance on my life, in any insurance company, association or organization, which insurance is or shall be for the benefit of and payable to my adopted son, Arthur Hopson Sawyer, and in the event further that such insurance or some part thereof shall be actually paid to said Arthur Hopson Sawyer within one year from my decease, then and in those events, I give, devise and bequeath to said William Cubby a sum of money which shall be equal in amount to the insurance money so paid to said Arthur Hopson Sawyer, not exceeding, however, the sum of six thousand dollars ($6,000.00).”

      Held, that the legacy was void;
    That Cubby had no vested interest in the legacy upon the death of the testatrix, and could secure none until both of the conditions mentioned in such clause had been fully performed;
    That the provision in the will, that the insurance money “shall be actually paid to said Arthur Hopson Sawyer within one year from my decease,” did not require the payments to be made to the beneficiary named in the policies during his lifetime, but was complied with if the payment was made to his assignee or legal representatives.
    The fact that a party has sought to evade the law by doing indirectly what would have been void if done directly, does not present any persuasive reason why a court should indulge in any unusual construction to uphold the provisions of a clause in a will.
    Appeal by tbe plaintiff, Arthur Hopson Sawyer, by Jesse Hop-son, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants dismissing the complaint upon the merits, entered in the office of the clerk of the county of Onondaga on the 28th day of November, 1892, upon the report of a referee.

      Kophins & JBoncly, for tlie appellant.

      Costello (& Welch, for respondent Cubby.

      White cé King, for respondent Hinkley.
   Martin, J.:

Tbe purpose of this action was to obtain a construction of the will of Jennie Sawyer, deceased. Practically the only question in this case is as to the validity of the fifth clause of the will. In the first, second, third and fourth subdivisions she gave certain bequests, amounting to $1,000, about which there is no dispute. The fifth subdivision was as follows:

Fifth. In the event that William Cubby, of Syracuse, N. Y.,. shall promptly pay all assessments, dues and premiums which during' my life shall become due and payable on my insurance on my life, in any insurance company, association or organization, which insurance is or shall be for the benefit of and payable to my adopted son,. Arthur Hopson Sawyer, and in the event further that such insurance or some part thereof shall be actually paid to said Arthur' Hopson Sawyer within one year from my decease, then and in those events I give, devise and bequeath to said William Cubby a sum of money which shall be equal in amount to the insurance money so-paid to said Arthur Hopson Sawyer, not exceeding, however, the-sum of six thousand dollars ($6,000.00).”

By the sixtli clause the residue and remainder of. her estate was-devised and bequeathed to her executor in trust to hold and pay the income thereof to Arthur Hopson Sawyer until he arrived at tlie age of thirty-five years, and then to pay over the principal to him. By the seventh the executor was authorized and empowered to sell and convey real estate.

The validity of the fifth clause is assailed upon the ground that it is violative of the statutes -which prohibit the suspension of the power of alienation of property beyond two lives in being at the death of the testatrix. A legacy, to take effect only on the happening of an event in the future, which will not necessarily take place within-two lives in being at the death of the testator, is void. (Rose v. Rose, 4 Abb. Dec. 108; Booth v. Baptist Church, 126 N. Y. 215.)

The respondents seek to uphold the judgment upon the theory that the legacy vested on the death of the testatrix, subject to being defeated by the non-payment to her adopted son of any part of the insurance mentioned. The conditions in this paragraph of the will were that the respondent Cubby should pay all the assessments, dues and premiums which should, during the lifetime of the testatrix, become due and payable upon the policies, and also that such insurance, or some part thereof, should be actually paid to her adopted son within one year from her decease. Both these provisions were conditions precedent to the vesting of any. interest in such legacy. That it was the intent of the testatrix that the legatee should have no right to the legacy mentioned, or any interest in her estate until both these conditions were peformed, is quite obvious. Hence, it follows that he had no vested interest in the legacy in question upon ■the death of the testatrix, and could acquire none until both conditions had been fully performed. Therefore, the ownership was left •in abeyance, awaiting the result of a contingency which effected a ■suspension of the power of alienation not measured by lives.

We cannot adopt the view taken by the learned referee, that the will required the payments to be made to the beneficiary in the policies in his lifetime and thus limited the suspension to the life of •one person in being at the death of the testatrix. We think the condition upon which this legacy was made to depend might have been performed as well by the payment of the insurance to an assignee or personal representative of Arthur Hopson Sawyer after his death, :as by payment to his guardian who • was his representative during his infancy. We can find nothing either in the will, or any circum■stance disclosed by the evidence, which would justify us in holding that it was the testatrix’ intent that the second condition upon which the legacy was based could only be performed by a payment to her adopted son while living. We think the provision, “shall be .actually paid to said Arthur Hopson Sawyer within one year from my decease,” is not to be so narrowly construed as to have required the payment to be made to him personally within one year of the ■death of the testatrix, but that the intent was that whatever sum ■came to him from the source mentioned, or of which he should have the benefit, either through the payment to himself, his assignee ■or personal representative would entitle Cubby to an equal amount •out of the testatrix’ estate, not to exceed $6,000. It is quite obvious that tbe limit intended by this clause in tbe will was one year, and we find nothing in the will or in the evidence to indicate that any other limit of time was intended.

The appellant, however, contends, and the learned referee intimates in his opinion: (1) That this legacy was the result of an agreement between the testatrix and Cubby whereby the latter was to have the benefit of the insurance upon her life although he had no insurable interest whatsoever therein; (2) that the scrivener who prepared the will foresaw and understood that the provision in question would be void under the statute unless the time was-limited by the life of the beneficiary ; that he so advised the testatrix, and that the' provision in question was inserted to avoid the statute by making it dependent upon the payment of the insurance during the life of her adopted son. As to the former proposition, it may be said that the fact that the party sought thus to evade the law by doing indirectly what would have been void if done directly, does not commend itself to us, or present any very persuasive reason why a court should indulge in any strained or unusual construction to uphold the provisions of this clause of the will. In the latter proposition we are unable to concur. If the scrivener foresaw the difficulty which was likely to arise under the statute, it is hardly possible to suppose that he would not have clearly stated as a part of the condition that it should be performed during the life of the testatrix’ adopted son. Having failed to thus limit the time for complying with this condition, we think the words must be given their usual and ordinary meaning, and it must be held that the condition upon which this legacy was made to depend was not by the terms of the will required to be performed during the life of Arthur Hopson Sawyer, and, hence, the event upon the happening of which the legatee would be entitled to receive the legacy, would not necessarily occur within two lives in being at the death of the testatrix, and the paragraph of the will under consideration was void.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Merwin, J., concurred.

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


text:
    The People of the State of New York ex rel. Frederick E. Bates, Respondent, v. Robert G. H. Speed and Others, Appellants.
    Mandamus— Code of Oiril Procedure, §§ 2086, 3258 — costs.

    The provisions of section 2086 of the Code of Civil Procedure relating to costs on the decision of an application for a mandamus are general, and apply to all cases where an alternative writ of mandamus has been issued; while the provisions of section 3258 are special, and relate only to certain cases in which the defendant is a public officer, and in such cases the special provisions of section 3258 control the general provisions contained in section 2086.
    Appeal by the defendants, Robert Gr. II. Speed and others, as inspectors of election of the town of Caroline, from an order of the Supreme Court, made at the Tompkins County Special Term and ■entered in the office of the clerk of the county of Tompkins on the 10th day of December, 1892, denying an application for an order directing the clerk of Tompkins county to tax increased costs in favor of the defendants.
    Robertson, Smith <& Bull, for the appellants.

      Frederiele Oolbm, for the respondent.
   Per Curiam :

This is an appeal .from an order of the Special Term denying a motion for costs and increased costs.

The action or proceeding was commenced by an application, made upon affidavits, for an order to show cause why a mandamus should not issue directing the defendants Speed, Personious, Peters and Cross, as inspectors of election of the town of Caroline, to re-convene, as presiding officers and inspectors of election of a town meeting, and re-announce and declare that John Bull, the Democratic candidate for supervisor, was ineligible to the office, and requiring the defendant Lounsberry, as town clerk of the town of Caroline, to cancel the record made by him relative to the town meeting, and the defendant Yan Kirk, as clerk of the county of Tompkins, to transmit to the town clerk for cancellation the certificate received by him.

An alternative writ was issued. An answer was interposed on the part of the defendants .who were the inspectors of election, and a reply was served. Upon the issue thus made, the case came to trial at the Circuit, and the complaint was dismissed. Thereupon, the defendants’ attorney made a motion for increased costs, which was denied.

The single question involved upon this appeal is whether the aj:>pellants, who were public officers, were entitled to have their costs allowed as provided by section 3258 of the Code of Civil Procedure, or whether the costs were controlled by section 2086, and, hence, in the discretion of the court. It was held by the Special Term that the costs were controlled by the latter section, and the court refused to allow the defendants the costs provided by that section, or as provided by section 3258.

While section 2086 provides that upon the making of a final order in a case where an alternative writ of mandamus has been issued, the costs are in the discretion of the court, section 3258 declares that where the defendant is a public officer, and the action or special proceeding is brought by reason of an act done by him by virtue of his office, or an alleged omission by him to do an act, wdiieh it was his official duty to perform, on a final order made in a special proceeding commenced by a State writ, he is entitled to recover the costs prescribed in section 3251, and in addition thereto one-half thereof.

An examination of the former section discloses that it relates generally to all cases where an alternate writ of mandamus has been issued, while the latter section relates to and prescribes the rule to be applied in a case where the defendant is a public officer whose act or omission as such has been called in question in an action or special proceeding commenced by a State writ. The provisions of the former section are general, while those of the latter are special. Under such circumstances the general statute is to be read as silently excluding from its operation cases which have been provided for by the special one. (Endlich on Interp. Stat. § 223.)

In this case we think the special provisions contained in section 3258 control the general provisions contained in section 2086, and that the defendants in this case were entitled to tax their costs as provided in section 3258, and that the order appealed from. should be reversed and the defendants’ motion granted.

Present — Hardin, P. J., Martin and Merwin, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted authorizing the costs and increased costs to be taxed as provided by section 3258 of the Code of Civil Procedure.