text:
    Rosa Cullin, Plaintiff, v. The Supreme Tent of the Knights of the Maccabees of the World, Defendant.

      Construction of the constitution of a mutual heneft association.

    The constitution of a corporation the object of which was to establish a benefit fund, from which, on satisfactory evidence of the death of a member, a sum not exceeding §2,000, should under certain conditions be paid to his widow, children, dependent, mother, father, sister or brother as he might direct, and as the endowment laws provided, contained the provision “that no transfer or assignment of a certificate will be binding on this association, unless consent is given thereto by the supreme commander and supreme record keeper, and the surrender to this association of the certificate so transferred or assigned.”

      Held, that to transfer the certificate to any other than the party named there must be a revocation of the payment directed to be made to the beneficiary named, by the transfer or the assignment of the certificate to another;
    That no consent to a revocation of a direction to pay to a certain person was required.
    Such constitution further provided : “ In the event of the death of all the beneficiaries .named by the member before the decease of such member, if no other disposition be made thereof, the benefit shall be paid to the beneficiaries of the deceased member, first, in the order named in the preceding section ; and if no person or persons shall be found entitled to receive the same by the laws of the order, then it shall revert to the endowment fund of this association.”

      'It also provided: “ In case no direction is made by the member in such certificate, and he leaves no widow, children, dependents, father, mother, sister or brother, the benefit shall revert back to the endowment fund of the supreme tent.”

      Held, that such provisions should be construed together;
    That in the event of the death of the beneficiaries named in the certificate, before the decease of the member, if no other disposition had been made thereof, or in a case where no direction had been given by the member in such, certificate, the benefit should be paid to the beneficiaries of the deceased member;
    That where the appointment of a beneficiary named by a member was subsequently revoked, and no other beneficiary was named, and there was no transfer of the certificate, the certificate must be treated as if no designation had been made.
    Motion by tbe defendant, The Supreme Tent of the Knights of the Maccabees of the World, for a new' trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after verdict for $2,293.33 had been rendered in favor of the plaintiff,’ by direction of the court on a trial at the Cattaraugus Circuit.

      W'-H. dfourse, for the plaintiff.

      G. M. Rider, for the defendant.
   Haight, J.:

The principal exception brought up for consideration was taken to the direction of a verdict in favor of the plaintiff.

This action was brought to recover the sum of $2,000 upon an endowment certificate issued by the defendant to the plaintiff’s husband. The defendant is a corporation organized under the laws of Michigan, having its principal office at Port Huron in that State. Its object, among other things, is “to establish 'a benefit fund, or funds, from which, on satisfactory evidence of the death of a member of the Order who has complied with all its lawful requirements, a sum not exceeding $2,000 shall be paid to the widow, children, dependent, mother, father, sister or brother of a member, as he shall direct, and as the endowment laws provide,” etc. Subordinate tents are established at different places. under charters issued from the supreme tent. Under such a charter there was organized at Olean, N. Y., a subordinate tent known as Biverside Tent No. 10. On or about the 12th day of February, 1890, John Oullin, the plaintiff’s husband, upon his own application, was admitted as a member of Riverside Tent No. 10, and thereafter, and on or about the 10th day of March, 1890, the defendant issued to him its certificate of endowment, No. 7,128, which, among other things, contains the following provision: “ This certifies that Sir Knight John Cullin has been regularly admitted in and is recognized as a member in good standing of Riverside Tent No. 10, located at Olean, N. Y., and that in accordance with and under the provisions of the laws governing the Order, his legal beneficiary named therein is entitled to receive one assessment on the membership, not exceeding $2,000, and said sum will be paid as a benefit to Mrs. Margaret Rochford, his niece, dependent, upon satisfactory proof of his death, together with the surrender of this certificate,” etc. John Cullin died on the 12th day of September, 1890. The complaint, among other things, alleges that “after the death of said Cullin, satisfactory proofs of death were made out and forwarded, and this certificate surrendered to the defendant in compliance with the laws, rules and constitution of the defendant in such cases made and provided, and payment thereof duly demanded, which was refused.” It is further alleged in the complaint “That said certificate of insurance was made payable to one Margaret Rochford, a dependent, and that said John Cullin, on the 1st day of July, 1890, being of sound mind and memory, revoked said direction of payment to said Margaret Rochford, and died without leaving any legal directions as to its payment * * * and with knowledge of such revocation on the part of the defendant it received several assessments, dues and per capita tax thereunder, and continued said insurance.” These allegations are not denied by the answer, and, therefore, for the purposes of the trial stand as admitted facts in the case. Does the plaintiff as the widow of John Cullin become entitled to the fund upon his death, the direction of payment to Mrs. Rochford having been revoked ? This question must be determined from the constitution of the defendant. The right of revocation appears to be sanctioned by article 11, section 10 of the constitution, which provides that “No transfer or assignment of a certificate will be binding on this association unless consent is given thereto by the supreme commander and supreme record keeper, and the surrender to this association of the certificate so transferred or assigned.” The certificate could not well be transferred or assigned to another without a revocation of the payment directed to be made to the beneficiary therein named. The transfer referred to is by the member of the order. This is apparent from the sentence which precedes that quoted, which limits the right of a member to transfer the certificate to any person other than his wife, children, dependents, mother, father, sister or brother. There must, therefore, be a revocation of the direction to pay the beneficiary named, and then a transfer or an assignment to another person. The transfer or assignment to another person can be made only upon the consent of the supreme commander and supreme record keeper, but no consent to a revocation of the direction to pay to the person named appears to be required. Section 11 of the same article provides that “ In the event of the death of all the beneficiaries named by the member before the decease of such member, if no other disposition be made thereof, the benefit shall be paid to the beneficiaries of the -deceased membei’, first, in the order named in the preceding section; and if no person or persons shall be found entitled to receive the same by the laws of the Order, then it shall revert to the endowment fund of this Association.” It is claimed, however, that this section has no application to the case under consideration, for the reason that it is limited to an event in which the death of all the beneficiaries precedes that of the member, and the member has neglected to designate another beneficiaiy. But in this connection we have the concluding clause of section Y of article IT, which provides that “ In case no direction is made by the member in such certificate, and he leaves no widow, children dependents, father, mother, sister or brother, the benefit shall revert back to the endowment fund of the supreme tent.” So that it is apparent from this provision that it was not intended that the fund should revert to the supreme tent or to the association, should the deceased leave a widow', children, dependents, father, mother, sister or brother; and the inference is that it was intended and understood that in case no direction was made by the member in the certificate as to the person to whom the endowment should be paid, it should be paid to the widow, children, etc., in the order named, in • case she or they survive him. Section 11 and section Y should be read and construed together, and when so considered the intention is to our minds quite apparent, and it is that, in the event of the death of the beneficiaries named in the certificate before the decease of the member, and if no other disposition be made thereof, or in a case where no direction has been made by the member in such certificate, the benefit should be paid to the beneficiaries of the deceased member, first, in the order named in section 10, which is, first, to the widow, if there be one; if not, to the children, if any survive; if not, to the dependents, etc. It is true the plaintiff first designated Mrs. Eochford as the beneficiary in the certificate, but he subsequently revoked such designation, and thereafter the certificate remained without any designation. Mrs. Eochford would not be entitled, because her designation had been revoked. The fund would not revert to the supreme tent, because the constitution provides that it shall only so revert back in case the member does not leave a widow, children, etc. We think, therefore, that the certificate must be treated as if no designation had been made, and that, under our interpretation of the provisions of the sections quoted, the plaintiff becomes entitled to the fund.

Upon the trial three reports of the finance keeper of the subordinate tent to the supreme tent were offered in evidence for the purpose of showing that John Cullin had been suspended as a member of the order for the non-payment of assessment No. 53. They were objected to and rejected by the court. L. A. Mallory was the finance keeper. These reports were made out by one J. J. Quigley, who testified that he was authorized by the finance keeper to make out the reports in his name. They contained statements to the effect that John Cullin was suspended August tenth for nonpayment of assessment No. 53. Mallory was sworn as a witness upon the trial, and testified that he was the finance keeper of the Eiverside Tent; that assessments were payable to him; but he does not state that any assessment was due and owing from Cullin at the time of his death, or that he had been suspended because of the non-payment of any assessment. No evidence was introduced showing that the supreme tent had by resolution or otherwise made any such assessment. There was evidence to the effect that the Bee Ilime was the official paper of the order, in which notices of assessment were printed. It appears that a bundle of the Bee Him papers came to the post-office in Olean, and that John Guilin’s name was on one of the papers; but as to whether the paper contained notice of any assessment the case is silent. So that we have no evidence that such an assessment was ordered, or evidence of the service of any notice of it upon John Cullin, or evidence that all of the assessments were not paid by him to the finance keeper. There is only the report of Quigley, the local record keeper, made-out in the name of the finance keeper above referred to. We think the reports were not evidence, and that they were properly excluded by the court.

Under the view taken by us the evidence to the effect that Mrs. Rochford was not a dependent was immaterial, but it could do no-harm, for that fact was alleged in the complaint and was not denied by the answer.

It was not necessary to prove service on the association of the proofs of death, for that fact, as we have seen, was also alleged in the complaint and not denied.

The defendant’s motion for a new trial should be denied, and judgment ordered for the plaintiff upon the verdict.

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

Motion for new trial denied, with costs, and judgment ordered for nlaintiff upon the verdict.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    Philip Becker, Respondent, v. The Town of Cherry Creek, Appellant.
    . Motion to change the venue — denied for laches.

    Where a motion was made, over one year after the joining of issue in an action, to change the place of trial thereof for the convenience of witnesses, the defendant is chargeable with laches, and the motion is properly denied, and the fact that a whole year was consumed in fruitless attempts to change the venue-upon other grounds is no excuse for the delay in making such motion.
    Appeal by the defendant, The Town of Cherry Creek, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of November, 1893, denying the defendant’s motion to change the place of trial for the convenience of witnesses.

      0.11. Lockrwood, for the appellant.

      Albert Moot, for the respondent.
   Haight, J.:

This action was brought August 12, 1892, and issue was joined November 12, 1892. The case was first noticed for trial by the plaintiff, and put upon the calendar for the Erie November Circuit. Thereupon a motion was made by the defendant to change the venue to Chautauqua county on the ground that that was the proper county for the trial of the action. This motion was denied. The case was then again noticed for trial by the plaintiff and placed upon the calendar for the February Circuit. An appeal was then taken to the General Term from the order denying the motion for a change of venue and a stay of proceedings was obtained pending such appeal. At the June General Term the order was affirmed and the case was again noticed for trial by the plaintiff for the September term, but the notice was returned and an appeal was taken from the order of the General Term to the Court of Appeals. In October the order was affirmed in that court and the case was again noticed by the plaintiff and placed upon the calendar for the Erie November Circuit. Thereupon motion was made to change the place of trial for the convenience of witnesses and the same was denied by the Erie Special Term November 27, 1893.

We are of the opinion that the defendant is chargeable with laches and that the motion was properly denied by the Special Term. It appears that over a year had elapsed since the joining of issue when this motion was noticed for hearing. Rule i7 provides that “No order to stay proceedings for the purpose of moving to ehange the place of trial shall be granted unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practical day after issue joined.”

In Moreland v. Sanford & Clark (1 Den. 660) the motion was to change the venue from Tompkins to Montgomery county for the convenience of witnesses. Beardsley, J., in delivering the opinion of the court, says: “ This motion is too late. It should have been made at the April or June Special Term. Had it beer made at either of those terms and denied, the plaintiff might have noticed the cause for trial at the late August Circuit in Tompkins, which he was precluded from doing by the order to stay proceedings for this motion made in June. The plaintiff has thus been delayed by the unexcused neglect of the defendants. * * * A party sued is bound at his peril to move for a change of venue at the earliest practicable day, if his delay to a later period may have the effect of carrying the plaintiff over a Circuit in the county where the venue is laid.”

In Darragh v. McKim (2 Hun, 337) Daniels, J., says: “ The issue in this action was joined on the 20th of September, 1813, and the order to show cause why the action should not be removed into this court and the place of trial changed was not made until the 8th. day of August, 1874. During that interval it was noticed for trial and placed on the calendar of the Superior Court, and two Circuits have been held in the county of Queens, to which the defendant applied to have the place of trial changed. This delay, together with the loss of these two Circuits, at which this action could probably have been tried if the motion had been promptly noticed and a change made, constitutes sufficient reason for its denial.” (See, also, Anon, 18 Wend. 514; Garlock v. Dunkle, 22 id. 615; 4 Hill, 63, note.)

The delay in this case in making the motion is greater than that in any of the above-reported cases. In the. meantime three Circuits have been held in Chautauqua county, at which the case might have been tried had the motion been promptly noticed and the order granted.

The fact that a whole year has been consumed in a fruitless attempt to change the venue upon other grounds is no excuse for the delay in making this motion.

It is claimed on behalf of the respondent that the testimony of the witnesses for whose convenience the change is asked'is immaterial upon the authority of Franklin County v. German Savings Bank (142 U. S. 93) and Williamsburgh Savings Bank v. The Town of Solon (136 N. Y. 465). Possibly this is so, but we prefer not to determine the question at this time.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

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

Order appealed from affirmed, with ten dollars costs and disbursements.


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    Margaret A. Root, Respondent, v. John R. Strang, as Executor, etc., of Collins Woodruff, Deceased, Appellant.

      Verdict against the weight of the evidence — when not determinable on appeal— written promise to pay after the maker’s death — consideration neither expressed nor proved — inadequacy of consideration — htesband’s right to his wife’s earnings — when surrendered.

    Where much of the testimony of expert witnesses given upon the trial of an ■action and many of the exhibits produced' upon such trial do not form part of ■the case upon appeal, the question as to whether the verdict of the jury waa against the weight of the evidence is not before the appellate court for review.
    Any instrument by which the signer agrees to pay to another a certain sum at a time specified after his death is a valid promissory note, and it is not necessary to its validity that a consideration be expressed therein, or proved in an action thereon; the instrument imports a consideration, and the burden of showing the want thereof is upon the person questioning its validity.
    Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defense to a promissory note, nor is the fact that the services were rendered by the payee without any express promise of the maker to pay therefor a defense thereto, when the maker, after the performance of the services, recognized the payee’s labor as valuable and agreed to pay therefor by delivering the note.
    Where the husband of a woman saw another pay her for services she had rendered, and as a witness subscribed the instrument by which the payment was made, he acquiesced in the payment to his wife, and surrendered to her any light thereto which he might have had.
    Appeal by the defendant, John R. Strang, as executor, etc., of Collins Woodruff, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of June, 1893, upon the ver■dict of a jury for $10,466.66 after a trial at the Monroe Circuit, and also from an order made at the Monroe Circuit on the 31st day of May, 1893, denying the defendant’s motion for a new trial, made upon the minutes.

      J. B. Adams, for the appellant.

      H. F. Iiemvngton and M. Fillmore Brown, for the respondent.
   Haight, J.:

This action was brought upon a promissory note of which the following is a copy:

$10,000. Looneyville, August 1, 1889.
In consideration of valuable services rendered to me, I promise to pay my niece, Margaret A. Root or order, ten thouscmd dolla/rs at or after my decease.
“ COLLINS WOODRUFF.
The above note executed by me and delivered to my niece, Mrs. Margaret A. Root, of Looneyville, New York, I do hereby declare to be given to compensate her for her long and faithful services rendered to me, and for her devotion and many kind and repeated acts of kindness ■ and affection bestowed upon me during my life, while residing with and making my home with her at her residence in Looneyville, and I deem the amount of said note but a just and adequate compensation for all her long-continued services, kindness and devotion to me in sickness and health during my life.
“ Dated August 1, 1889. COLLINS WOODRUFF.
Witness:
“ Chester A. Root.
“ Margaret A. Root.
Margaret S. Root.
Henry McDermott.”

The principal issue of fact litigated upon the trial was as to the genuineness of the signature of the defendant’s testator, and we are asked to review the determination of the jury upon that issue..

It appears that the instrument was drawn by the late Alfred Ely of Rochester, at the request of the defendant’s testator, and the persons signing as witnesses thereto, with the exception of the plaintiff, each testified that they saw him sign the same at Looneyville on the 1st day of August, 1889, and deliver it to the plaintiff. There is evidence on the part of the defense tending to show that Wood-ruff was not in Looneyville on the first day of August; that on that day he was in Rochester. It is quite possible that the plaintiff’s witnesses are mistaken in reference to His being in Looneyville on that day. We are aware that mistakes in reference to dates are liable to occur. The instrument, as we have stated, was drawn in Rochester by Mr. Ely, and the date, August first, appears to be in his handwriting. It may be that it was drawn on the day of its date and was not taken to Looneyville by Woodruff until the next day. But this fact, if such it be, would not in our judgment seriously impair or affect the testimony of the plaintiff’s witnesses in reference to the signing of the instrument by Woodruff or his delivery of the same to the plaintiff. There consequently is evidence that sustains the finding of the jury upon this branch of the case.

As to whether the finding of the jury is against the weight of evidence, we do not think the question is before us for consideration. Much of the testimony of the expert witnesses has been omitted from the case, and none of the exhibits with which they made comparisons were produced before us. We consequently are not in a position to consider the evidence or to determine the weight or the effect it should have upon the verdict.

It is contended that the note is invalid, the defendant claiming that there is an inadequate consideration to support it. The note itself recites the consideration of valuable services rendered.” The instrument which follows it declares it to be given to compensate the plaintiff “ for her long and faithful services rendered to me, and for her devotion and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with and making my home with her at her residence in Looneyville.” In Carnwright v. Gray (127 N. Y. 92) it was held that an instrument by which the signer agrees to pay to another a sum certain at a time specified after his death, is a valid promissory note ; that it is not necessary to its validity that a consideration be expressed therein or proved in an action thereon ; that the instrument imports a consideration, and the burden of showing a want thereof is upon the defendant. Has the defendant in this case shown a want of consideration ? The testator at the time of making the note was aged and in feeble health. He had no children, and his wife had died some years before. The plaintiff was the niece of his wife. It is apparent from Ms letters that lie regarded her with much affection, and that he had on various occasions visited her at her home and there remained several weeks at a time. The evidence further tends to show that on some of these occasions he was quite feeble, and that the plaintiff cared for him. There is, therefore, evidence of some consideration, and this we understand is sufficient. In Worth v. Case (42 N. Y. 362) the plaintiff had nursed and tended the defendant’s testator through a severe illness, and upon his recovery he delivered to her a sealed envelope superscribed with her name and the addition : “ This is not to be unsealed while I live, and returned to me any time I wish it ” — • signed by him. After his death she opened the envelope and found therein his promissory note for $10,000, payable to her on demand. It was held that she was entitled to recover the amount against the estate of the testator. In Earl v. Peck (64 N. Y. 596) it was held that mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defense to a promissory note. In that case the defendant’s testator had taken by mistake a fatal dose of aconite, and, being aware of his approaching death, executed and delivered to the plaintiff, his housekeeper, a promissory note for $10,000. The consideration expressed was for services rendered.” It was held that the note was valid, although the amount was greater than the value of the services rendered. (See, also, Cowee v. Cornell, 75 N. Y. 91, 98.)

It is also claimed that these cases are not decisive of the question involved in this case, for the reason that the plaintiff’s services were rendered without any express promise on the part of Woodruff to pay therefor. It does not appear to us that there is force in this contention, for after the services were performed Woodruff recognized the plaintiff’s labor as valuable, and agreed to pay therefor by delivering the instrument in question.

It is further contended that the plaintiff had no right to receive compensation for her services; that her services belonged to her husband, and that he alone was entitled to the compensation, and in support of such contention the defendant calls our attention to Blaechinska v. H. Mission & Home (130 N. Y. 497); Porter v. Dunn (131 id. 314); Coleman v. Burr (93 id. 17); but it does not appear to us that these cases are in point. The plaintiff’s husband stood by and saw Woodruff pay the plaintiff for the services she had rendered. lie subscribed the instrument by which the payment was made. He thus acquiesced in the payment to his wife, and thereby surrendered to her any right thereto which he might have had. This view renders it unnecessary to enter upon a consideration of the relation existing between husband and wife as to services rendered by her. These questions have been considered by this court in the cases of Burley v. Barnhard (9 N. Y. St. Repr. 587) and Stamp v. Franklin (35 id. 828).

We have examined the exceptions taken to the admission and rejection of evidence, but find none which we think requires a new trial.

The judgment and order appealed from should be affirmed.

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

Judgment and order appealed from affirmed.


text:
    The Town of Mount Morris, Respondent, v. John King, Individually and as Trustee, and Another, Appellants.

      Equity action — laches not mailable on a demurrer to the complaint — provision for a forfeiture strictly consPrued.

    While a court upon a trial of the issues of fact in an equity action may find that a corporation has rested upon its rights for so many years and that its claim has become so stale that it -will refuse relief, still, upon a demurrer in which a question of law only is raised, it must sustain the complaint.
    Forfeiture is not favored by law, and the provisions of an agreement upon which it is based must be strictly construed.
    Appeal by the defendant, John King, individually and as trustee, and' another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 13th day of September, 1893, upon the decision rendered on the trial of the issues- raised by a demurrer at the Monroe County Special Term.

      F. O. Sprague, for the appellants.

      W. A. Sutherland, for the respondent.
   Haight, J.:

The demurrer is upon the grounds that there is a defect of parties plaintiff or defendants and that the complaint does not state facts sufficient to constitute a cause of action. The complaint, among other things, alleges that the Avon, Geneseo and Mount Morris Railroad Company was and is a railroad corporation duly created by and under the laws of this State for the purpose of constructing and operating a railroad from the town of Avon in the county of Livingston to a point in the town of Mount Morris in said county; that it had constructed its road and had issued 2,250 shares of its capital stock of the par value of $100 each ; that the town of Mount Morris had aided in such construction to the extent ■of $25,000, and had issued its bonds therefor, and had received in return therefor 250 shares of such capital stock ; that on the 27th •day of December, 1871, the Avon, Geneseo and Mount Morris Railroad Company leased its railroad, together with all its rights, easements, powers and privileges in connection therewith and the appurtenances thereto, to the Erie Railway Company for and during the unexpired term of its charter, and in and by such lease the former company undertook with the latter, as a part consideration therefor, to cause to be transferred to the president of the latter company, as “trustee, for its use, the 250 shares of stock held by the plaintiff; that in pursuance of that agreement, and simultaneously therewith, the railroad commissioners of the plaintiff, holding such stock for the town, transferred the same to Jay Gould, as trustee for the latter company. It is alleged that this transfer was without consideration; that the New York, Lake Erie and Western Railroad Company has succeeded to the rights of the Erie Railway Company, and that John King, as its president, now holds such stock in trust for it. The complaint demands judgment that the defendant, John King, individually and as trustee, be adjudged and decreed to exe•cute an assignment of the certificate of -stock to the plaintiff and to surrender up the same, and that an accounting be had of the dividends received thereon, etc. The theory upon which this branch •of the complaint is prosecuted is that the railroad commissioners of the town had no power to give away the stock of the railroad company owned by the town and held by them as its trustees, and that “their act in so doing was ultra vires ; that Jay Gould, in taking a transfer of the stock from them, and those who have succeeded to his interest, are in law deemed 'to hold the same as trustees for •the town.

On behalf of the defendant it is claimed that the transfer of thé stock by the railroad commissioners being ultra vires, an action at law could at once have been maintained, either by the town or a taxpayer thereof, to recover the same back, or for its conversion; but that in neglecting to do so, and waiting until the Erie Railway Company had performed its covenants under the lease, among which was a provision that it should put the road into first-class repair and operate the same; and resting upon its rights from December, 1871, until June, 1892, upwards of twenty years, that a court of equity would not, at this late day, interfere with a contract which has so long been relied upon and executed by the parties; and in support of this contention our attention is called to' the authorities bearing upon that subject. It is quite possible that upon the trial of the issues of fact, a court of equity, in the exercise of the judgment and discretion vested in it, may sustain the appellants’ contention in this regard. But we are now reviewing the determination of a court of law upon an issue of law in which a purely legal proposition is presented not involving the judgment and discretion of the court. Whilst the court upon a trial of the issues of fact may find that the plaintiff has rested upon its rights for so many years, and that its claim has become so stale that it will refuse relief, still upon a demurrer in which a question of law only is raised it must sustain the complaint.

It is further alleged in the complaint that the defendant company has neglected to keep the covenants of its lease, and that the plaintiff is now entitled to recover the stock by reason of such neglect. It was also alleged that the Erie and Genesee Yalley railroad connected with the Avon, Geneseo and Mount Morris road; that its road had been leased to Lauren 0. Woodruff, and by him leased to-the Erie Railway Company, and that by the terms of that lease the road was to be operated by the latter company, which was also to build a branch connecting it with ‘ its main line at Bums; that it failed to fulfill its covenant in that regard, and that in 1891 it also ceased to operate the Avon, Geneseo and Mount Morris railroad from the village of Mount Morris to the town line, a distance of about two miles. The provision under which this claim is sought to be maintained is as follows: that “ The party of the first part (which is the Avon, Geneseo and Mount Morris Railroad Company) further agrees that in consideration of the premises and also in consideration of tlie covenants of the agreement between the party of the second part hereto (which is the Erie Railway Company), and Lauren C.'Woodruff, as lessee of the Erie and Genesee Valley railroad, it will simultaneously with the execution of this agreement and lease, transfer, or cause to be transferred and delivered, to the president of the Erie Railway Company, Jay Gould, as trustee, for the said party of the second part, 250 shares of the par value of twenty-five thousand dollars ($25,000) of the capital stock of the said Avon, Geneseo and Mount Morris Railroad Company now held by the town of Mount Morris * * * which stock shall be held by the said trustee for the benefit of the party of the second part so long as the second party shall retain possession of said demised premises and continue to perform the conditions of this agreement and lease; but in case of the forfeiture of this lease and the repossession of the said demised premises by the party of the first part, then and it is hereby mutually agreed that in that case the said capital stock of said Avon, Geneseo and Mount Morris Railroad Company held by said trustee shall become forfeited and shall be retransferred to the original holders thereof.” It will be observed that whilst the Woodruff lease of the Erie and Genesee Valley railroad is referred to as a part of the consideration under which the town transferred the stock to Gould in trust for the Erie Railway Company, no provision is contained in the lease by which the town is given the right to recover back the stock because of a failure to carry out the provisions of the Wood-ruff lease. As we have seen, the Erie and Genesee Valley railroad was a connecting line. The operation of it in connection with the Avon, Geneseo and Mount Morris railroad, giving the citizens of the town the benefit of communications with towns upon the line of the former as well as that of the latter road, and the extension of the former to a point upon the main line of the Erie railway, which would afford another outlet to cities and towns in the west, might have operated as an inducement for the officers of the town to make the transfer in question. But the Erie and the Genesee Valley railroad lease to the Erie Railway Company was an independent contract. The town of Mount Morris was not a party thereto, and no agreement for forfeiture is based upon a breach of that agreement.

We are thus brought to a consideration of the alleged breach of the Avon, Geneseo and Mount Morris lease in not operating the road to the town line beyond the village of Geneseo. The jirovision is that the stock transferred by.the town to the trustee of the Erie Railway Company is to be held by the trustee “ so long as the second party shall retain possession of the said demised premises and continue to perform the conditions of this agreement and lease.” If this provision stood alone there might be some doubt in reference to its meaning, and an argument might be made in suj)port of the claim that the trustee was not to retain the stock after the lessee ceased to perform the conditions of the lease, notwithstanding the 'first clause provides that the trustee shall retain possession of the stock so long as the lessee retains the possession of the leasehold j>remises. But this clause has to be read and construed in connection with that which follows, which is, “ but in case of the forfeiture of this lease and the repossession of said demised premises by the party of the first part, then it is hereby mutually agreed that in that case the said capital .stock of said Avon, Geneseo and Mount Morris Railroad Company held by said trustee shall become forfeited and shall be retransferred to the original holders thereof.” This is the clause of the agreement under which a forfeiture is provided for. Forfeiture is not favored in the law, and the ju’ovisions upon which it is based must be strictly construed. Thus construing the provisions, there must be not only a forfeiture of the lease but there must be a repossession of the demised premises by the Avon, Geneseo and Mount Morris Company in order to entitle the town to recover back the stock. Reading these provisions together it is quite evident that in preparing the lease the Erie Railway Company did not care to have a claim to recover back the stock made upon any of the trifling breaches of the contract that might be made in many ways, such as the failure to keep the road or some particular part thereof in as high a state of repair as the officers of the town might think it should be in, and limited the right to recover the stock to both an actual forfeiture of the lease and the repossession of the road by the lessor. It is, therefore, not apparent how a recovery could be had upon this theory, under the allegations of the complaint.

If the Avon, Geneseo and Mount Morris Railroad Company’s lease has been forfeited, and it has taken repossession of the road, it cannot be interested in the determination of any question involved in tliis litigation, and we do not understand tliat it would be a necessary party.

The interlocutory judgment appealed from should be affirmed, with costs, but with leave to the defendants to withdraw demurrer and answer over within twenty 'days upon payment of the costs of the demurrer and of this appeal.

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

Interlocutory judgment appealed from affirmed, with costs, with leave to the defendants to withdraw demurrer and answer over within twenty days upon payment of the costs of this appeal and of the demurrer.


author: Hai&iit, J. :

text:
    Henry H. Gee, Respondent, v. Hiram J. Torrey and Another, Appellants.

      Mechanic a lien — proceeding under chapter 440 of the Laws of 1880 — when commenced — query whether an action or special proceeding — Code Civ. Proc. §§ 399 and 414
    In a proceeding commenced to foreclose a lien given by chapter 440 of the Laws of 1880, it appeared that within six months after the filing of the notice of hen the plaintiff delivered to the sheriff for service a notice containing a statement of the facts constituting his claim, and the amount thereof, on the property of the defendants, and requiring them to appear ip. person or by attorney within thirty days and answer the same, or in default thereof that he would take judgment against them for the amount claimed to be due, etc. This notice was served on one of the defendants one day after the expiration of the six months from the filing of the notice of lien, and on the other defendant it was served nine days thereafter.
    The defendants set up in their answer the six months’ Statute of Limitations prescribed by section 10 of such act.

      Held, that the provisions of section 399 of the Code of Civil Procedure applied to, the notice authorized by chapter 440 of the Laws of 1880, and such section referred to a special proceeding as well 'as to an action, and that a mechanic’s-lien was not excepted by section 414 of the Code of Civil Procedure from the-provisions of section 399 thereof;
    That the delivery of the notice to the sheriff was equivalent to a commencement, of the proceeding or action.
    Query, as to whether the service of the notice of lien commenced a special proceeding or an action.

      Appear by the defendants, Hiram J. Torrey and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Allegany on the 23d day of September, ,1893, upon the report of a referee.

      Frederick U. Church, for the appellants.

      Fufus Scott, for the respondent.
   Hai&iit, J. :

This action, or special proceeding, whichever it may be, was brought, or commenced, to foreclose a lien given by chapter 440 of the Laws of 1880, known as the “ Oil Well Mechanics’ Lien Act.” The plaintiff had erected for the defendants a derrick to be used for the drilling of an oil well upon their lands. On the 31st day of May, 1883, and within sixty days after completing the work, the plaintiff filed a notice of lien, under which he acquired a -valid lien under the act. Within six months after filing such notice of lien, the plaintiff delivered to the sheriff, for service, a notice containing a statement of the facts constituting his claim, and the amount thereof, on the property of the defendants, and requiring them to appear in person or by attorney within thirty days, and answer the same, or, in default thereof, that he would take judgment against them for the amount claimed to be due, etc. This notice was served on the defendant Hiram J. Torrey December 1, 1883, and on the defendant Horace Davis, December 10, 1883, the first service being one day after the expiration of six months from the filing of the notice of the lien. The defendants, in their answer, set up the six months’ Statute of Limitations provided for in section 10 of the act. The provision is as follows : “ Every lien created under the provisions of this act shall continue until the expiration of six months from tiie time of filing the notice prescribed in the second section of this act, unless sooner discharged by the court or some legal act of the claimant in the proceedings; but, if within such period of six months proceedings are commenced to enforce or foreclose such lien, then such lien shall continue until judgment shall be rendered thereon, and for one year thereafter. Such lien shall also continue during the pendency of an appeal, and for one year after the determination thereof.” It will be observed that the provisions of this section do not designate or specify what shall be deemed a commencement of proceedings. Controversy has arisen as to whether the remedy provided by this act-was an action ór a special proceeding; but, under the view taken by us, it is unimportant, so far as the determination of the question under consideration is concerned. In the section quoted, the word “proceedings” is used, whilst in other sections the word “ action ” is used; and, after issue is joined, the provision is to the effect that the case shall be governed and tried in all respects as upon issues joined and judgments rendered in other actions arising on money demands upon contracts. We recognize much force in the argument that under these provisions the remedy provided is by an action, and that the word “ proceedings,” used in the provisions of the section quoted, was used through inadvertence and without intent to change the remedy from an action to a special proceeding. But passing this question for a consideration of the one involved, we find that under the provisions of section 5 the owner of the lien, if the claim exceeds fifty dollars, may “ bring an action in the Supreme Court' in the county in which the property is situated, or in the County Court of said county, to enforce such lien, which action shall be commenced, and the proceedings therein conducted, and judgment entered, in the same manner and to the same effect as in actions brought in said courts to enforce liens provided by chapter 402 of the Laws of 1854, and the several acts amending the same.” • By section 6 of chapter 402 of the Laws of 1854, it is provided that such action “shall be commenced by serving a notice containing a statement of the facts constituting the claim, and the amount thereof, on the owner of the property or his agent, requiring the said owner to appear in person or by attorney within thirty days after such service and answer the same, and serve a copy of such answer, together with a notice of any set-off that he may have, on the claimant or his attorney, or, in default thereof, that the claimant will take judgment against the said owner for the amount claimed to be due for the labor performed or the. materials furnished, with interest thereon and costs.” Section 399 of the Code of Oivil Procedure provides that “ An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant within the meaning of each provision of this act which limits the time for commencing an action,, when the summons is delivered, with the intent that it shall be actually served, to the sheriff,” etc. The question is as to whether this provision of the Code applies to the notice authorized by the statute referred to. It is said that these provisions of the Code apply to actions only. It is true that the word “ action ” only is> used, but it is a part of the provisions of chapter 4, title 3 of the.Code. The concluding clause of subdivision 4 of section 414 of the same chapter and title provides that “ The word c action ’ contained in this chapter is to be construed, when it is necessary so to' do, as including a special proceeding or any proceeding therein, or in an action.” Under this provision we are authorized to construe' the word “ action ” as also meaning special proceeding. But an action is ordinarily commenced by summons. Special proceedings, may be instituted by summons, petition or notice. Giving to the-word “action ” the broader meaning provided for, section 399 must, be understood as providing that an attempt to commence an action or a special proceeding in a court of record is equivalent to the. commencement thereof against each defendant within the meaning; of the provisions of this act which limits the time for commencing an action, when the summons or the instrument upon which the-the special proceedings are founded is delivered, with the intent that it shall be actually served, to the sheriff.

Again, it is contended that under section 414 of the Code, the-provisions of the Mechanics’ Lien Act are excepted from the provisions of the chapter of which section 399 is a part. Ve do not-so understand it. It is as follows: “ The provisions of this chapter apply and constitute the only rules of limitation applicable to a, civil action or special proceeding, except in one of the following' cases: (1) A case where a different limitation is specially prescribed by law.” The Mechanics’ Lien Act, as we have seen, has a different, limitation specially prescribed. It is, therefore, within the provisions of the exception. But were it not for its exception its different limitation would have been repealed by implication, for the provisions of this chapter constitute the only rules of limitation applicable to civil action or special proceeding. But the exception preserves, the different limitation, and the meaning of the section is the same as if it read: The provisions of this chapter and the cases in which a different limitation is specially prescribed by law, constitute the only rules of limitation applicable to a civil action or special proceeding. As thus understood, the limitation of the Mechanics’ Lien Act is preserved, and, if so, it appears to us that section 399 of the Code applies, and the delivery of the notice to the sheriff for service within the six months must be deemed equivalent to the commencement of the action, or proceedings, under the provisions of section 10 of the statute referred to. This view makes the practice uniform,' and is in accord with the result reached in Hammond v. Shephard (50 Hun, 318).

The judgment should be affirmed, with costs.

Dwight, P. <L, Lewis and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    Thomas J. Buffum, Respondent, v. Joseph Forster and Another, Appellants.

      Property purchased with pension money — when exempt — action maintainable to restrain its sale under execution.

    Hot only is pension money exempt from levy and sale under an execution, but also property, purchased, by the pensioner therewith, which is necessary or convenient for the support and maintenance of himself and his family.
    A court of equity may be resorted to for the purpose of preventing the creation of a cloud upon a title.
    A judgment was recovered against a person who received a pension from the government of the United States, from the amount of which he had purchased certain real estate, which was occupied by himself and his family for a home, and which was purchased for that purpose. An execution was issued on such judgment, and said real estate was advertised for sale by the sheriff.

      Held, that the judgment debtor might maintain an action in equity for the purpose of restraining the enforcement of such judgment out of such real estate.
    Appeal by tlie defendants, Joseph Forster and another, from an order of the Supreme Court, made by a justice thereof, entered in the office of the clerk of the county of Erie on the 24th day of October, 1893, denying the defendants’ motion to vacate a temporary injunction.

      De Witt dk Cutting, for the appellants.

      Charles E. Forsyth, for the respondent.
   Haight, J.:

This action was brought to restrain the defendants from taking any proceedings to enforce the collection of a judgment, entered in favor of the defendant Forster against the plaintiff out of his real «state.

It appears that the plaintiff is a veteran of the war of the rebellion and receives a pension from the government of the United States ; that he is the owner of the real estate in question, and that .all of the money that has been paid thereon was paid from the pension money which he received from the government; that he is a married man and has a family dependent upon him for support; that he and his family occupy the premises as a home, and that the ■same was purchased by him for that purpose. It further appears that the. defendant Forster recovered a judgment against the plaintiff in August, 1893, in the County Court of Erie county; that he has caused execution to be issued thereon and has delivered the same to the defendant Beck, as sheriff of the county; that defendant Beck, as such sheriff, has advertised for sale, under the execution, the real estate mentioned. Thereupon this action was brought and a temporary injunction obtained restraining the defendants from selling the premises under the execution until the further order of the court.

It must now be regarded as settled that not only pension money, but also property purchased by the pensioner with such money, which is necessary or convenient for the support and maintenance of himself and family, is exempt. (Code Civ. Proc. § 1393 ; Stockwell v. The National Bank of Malone, 36 Hun, 583; The Yates County National Bank v. Carpenter, 119 N. Y. 550.)

It is contended, however, that this action cannot be maintained for the reason that the plaintiff had an adequate remedy at law; that he could have moved in the action in which the judgment was ■obtained to set aside the levy and to enjoin the judgment creditor from taking any proceedings to enforce the execution by the sale of the real estate. Possibly this could have been done. It was the practice adopted in The Yates County National Bank v. Carpen ter (supra); but in that case this question was not raised or considered. "We shall, however, for the purposes of the argument, assume that the plaintiff could have obtained relief by a motion. We are, however, of the opinion that he was not bound to do so, and that he. may resort to an action in equity for that purpose. The judgment recovered by the defendant Forster against the plaintiff herein is an apparent lien upon the real estate in question. The right of the plaintiff to exemption is dependent upon facts extrinsic of the record in that action. In order to relieve his real estate from the lien of that judgment he must establish as facts, that he was a pensioner,, and that the real estate was purchased with his pension money. Ilis. claim in this regard may be controverted, and we think he has the-right to have this question tried and determined upon common-law evidence, and that he is not bound to have it disposed of in a motion upon ex parte affidavits. In The N. Y. & Harlem R. R. Co. v. Haws (56 N. Y. 175) it was held that equity will restrain proceedings upon a verdict, or the collection of a judgment, where it is-made to appear by facts of which the party could not avail himself as a defense that the enforcement thereof would be contrary to-equity and good conscience, and that the party is not bound to seek his relief by a motion in the original action, but may institute an action for that purpose.

If the proceedings under the execution should result in a sale of the-plaintiff’s real estate an apparent cloud would be placed upon the title of the property. Equity is often resorted to to remove clouds, upon title, and if this may be done we see no reason why a court of equity may not also be resorted to for the purpose of preventing the creation of such cloud. (Butler v. Johnson, 111 N. Y. 204, 218.)

The order appealed from should be affirmed, with ten dollars costs, and disbursements.

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

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Mary W. Merrick, as Executrix, etc., of Melzer F. Merrick, Deceased, Respondent, v. Sarah J. Hill and Another, Appellants.

      Judgment of nonsuit — not res adjudicate/, — general objection, when not available on

    A nonsuit is not a determination of a cause of action upon the merits, and does not constitute a bar to another action.
    In an action brought to recover the amount of rent due under the provisions of a lease of certain real estate, an assignment of the interest of the original lessor in such rent, and of a guaranty of the payment thereof, was introduced in evidence, over the defendants’ objection that it was incompetent and immaterial. Judgment was rendered in favor of the plaintiff. Upon an appeal therefrom it was contended that the assignment should not have been received in evidence for the reason that it was not alleged in the complaint.
    Meld, that as the attention of the trial court was in no way called to the fact that thé assignment was not covered by the pleading, a claim of error could not, upon appeal, be based upon its reception in evidence.
    Appeal by the defendants, Sarah J. Hill and another, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the '7th day of July, 1893, rendered upon the decision of the court affirming a judgment of the Municipal Court of Rochester.

      H. J. Sullivan, for the appellants.

      H. D. Tucker, for the respondent.
   Haight, J.:

This action was, brought to recover the sum of $130, being the amount of rent due upon a lease of real estate.

On April 1, 1890, Moses Merrick leased to one Edward P. ITill certain premises in the city of Rochester and town of Tates for one year next ensuing at the annual rental of $215, payable quarterly on the first days of July, October, January and April. Indorsed upon the lease is the following: For value received we do hereby guarantee the payment of rent of the foregoing premises as herein-before agreed to be paid by said lessee, Edward P. Hill; ” dated Rochester, April 1, 1890, and signed by the defendants in this action.

Upon the trial the plaintiff introduced -in evidence an instrument hearing date October 15, 1891, signed by Moses Merrick, in which, •after certain recitals, is the following: “Now, therefore, in consideration of the premises and for value received, I hereby sell, assign and transfer to said Melzer F. Merrick all right and interest I may have in and to the said lease and guaranty and the rent thereby secured, if any interest I may have therein.”

The trial court awarded judgment in favor of the plaintiff for the .amount of rent due.

It is now contended that the assignment should not have been received in evidence for the reason that it was not alleged in the ■complaint. The complaint does allege a transfer of the interest of Moses Merrick in the lease to Melzer F. Merrick, but it was alleged to have been by a deed and no mention is made of the ‘.assignment. But no objection was made to its reception upon this ground. It was only objected to as incompetent and immaterial. The attention of the. trial court was in no way called to the fact that it was not covered by the pleading, and consequently error cannot now be predicated upon its reception in evidence.

After the reception in evidence of the assignment, the defendant introduced a judgment roll in which Moses Merrick was plaintiff, and the defendants in this action were defendants, in which it appears that Moses Merrick had, previous to the assignment, brought an action against the defendants for the same rent which is sought to be recovered by the plaintiff in this action. In that action the judgment was for the defendants. It is now contended that it determined the rights of Moses Merrick, and that he had no interest in the lease which he could transfer to Melzer F. Merrick. But in that action the defendants introduced a deed in evidence, dated August 13, 1890, in which Moses Merrick conveyed to Melzer F. Merrick, in fee, the leasehold premises. It appeared that all of the rent due upon the lease accrued and became due after such conveyance. The trial court entered a judgment of nonsuit in that action. We presum'e, therefore, that the trial judge disposed of the case upon the theory that Moses Merrick having conveyed his interest in the real estate, that the rent thereafter accruing passed to his grantee. But whether this be so or not we deem it immaterial, for a nonsuit is not a determination of a cause of action upon the merits, and does not become a bar to another action. (The People v. Vilas, 36 N. Y. 459.)

Upon the trial the plaintiff introduced in evidence a certified copy of the deed alluded to. This was objected to as incompetent and immaterial, and not the best evidence; that it is an attempt to prove title which is controverted, and that the court has no jurisdiction. The deed was, however, received, and after the plaintiff rested the defendant moved to dismiss the complaint on the ground that, on the plaintiff’s own showing, the title to real estate is in question and disputed. This motion was denied.

The answer was a general denial and a plea of payment. The defendants claimed that, by the introduction of the deed in evidence, it was made to appear upon the trial by the plaintiff’s own showing that the title of real property was in question, and that it operated to oust the justice of jurisdiction. (Code Civ. Proc. § 2956.)

And to sustain this claim, our attention is called to the case o£ Lane v. Young (66 Hun, 563).

On the other hand, it is claimed that the title to real property was not put in issue by the answer; that rent reserved under a lease could be transferred to a person other than the owner of the fee, and that it was' competent upon the trial for the plaintiff to show that Melzer F. Merrick had become the owner and entitled to recover the rents accruing upon the lease, and that this could be done by any instrument in writing which showed the fact, whether it was a deed, assignment or other instrument, and that the title of real estate was not necessarily brought in issue. But we do not. deem it necessary to now determine this question, for even if it should be conceded that the deed was improperly received and should be regarded as stricken out, the plaintiff’s right to recover would still remain unimpaired, for the assignment alluded to of October 15, 1891, is undisputed, and, therefore, conclusive upon the question of the ownership and of the' right to recover the rents due and owing.

The judgment appealed from should be affirmed, with costs.

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

Judgment of the County Court of Monroe county appealed from affirmed, with costs.


text:
    George Werner, Respondent, v. The City of Rochester, Appellant.

      Same expression used in various parts of a, statute, how construed — charter of the city of Rochester — statement of a claim, for injuries— notice of intention to commence an action.

    Ordinarily, when the same expression is used in various provisions oí a statute, the same meaning should be given to it in each, but this is not so where it would result in destroying the harmony between it and other provisions.
    The provision of the charter of the city of Rochester, which directs that claims presented against the city for injuries should state when, where and how.the ' same were occasioned, should receive a reasonable construction, and the time, place and circumstances should be given with reasonable accuracy, so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious, and it is not required thereby that the person injured shall give the exact time when such injuries occurred, nor that he should be put to the expense of employing a surveyor to accurately locate the place where the accident happened.
    Where a person presented a claim against the city of Rochester which stated that the injury was received on a certain evening; that the night was very dark, and that there were no guards or lights of any kind around the obstruction which overturned his buggy and occasioned his injuries; that he was rendered unconscious by the fall and remained in the street in that condition for over an hour that the dirt was in the middle of the street at a point abont one-third of a mila east of the Charlotte branch of the New York Central and Hudson River railroad, as near as the claimant could estimate the distance, his statement is sufficiently definite as to the time and place, and there is no requirement of such statute making it necessary for the claimant to allege therein negligence on the part of the city.
    Under the provisions of such charter, if the common council fails to audit and allow a claim for injuries within forty days thereafter, the claimant has the right to commence an action thereon, but before commencing such action, and within six months from 'that time and within a year from the time of the accident, notice of the intention to commence such action must be filed with the counsel of the corporation or other proper law officer thereof.
    Appeal by tbe defendant, The City of Rochester, from a judgment of tbe County Court of Monroe comity in favor of tbe plaintiff, entered in tbe office of tbe clerk of the county of Monroe on. tbe ^22d day of April, 1893, upon tbe verdict of a jury for $220, and also from an order entered in said clerk’s office on tbe 22d day of April, 1893, denying tbe defendant’s motion to set aside tbe verdict and for a new trial made upon tbe minutes.

      O. D. Kiehel, for the ajipellant.

      Ilmum W. Morris, for the respondent.
   Haight, J.:

This action was brought to recover damages for personal injury and for injury to property. Section 80 of the charter of the city of Rochester (Chap. 14 of the Laws of 1880), as amended by section 18 of the Laws of 1890 (Chap. 561), among other things, provides that: The common council shall examine, settle and audit all accounts, demands and claims against the city. * * * No unliquidated claim or demand shall be received for audit unless made out in detail specifying * * * if for damages for wrong or injury or negligence, when, where and how occasioned. * * * No action or proceeding to recover or enforce any claim, debt or demand against the city shall be brought until the expiration of forty days after the claim, debt or demand shall have been presented to the common council for audit in the manner and form aforesaid. * * * All actions brought against the city to recover damages or other relief for injuries to the person or property caused by negligence shall be commenced within one year from the time ■of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued. No action or proceedings shall be maintained against the city for personal injuries unless the notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action. shall have accrued.” The plaintiff claims to have presented a claim to the common council for audit on or about the 16th day of March, 1892, and another on or about the 1st day of August, 1892. The first notice of claim does not appear to have stated accurately the time and place at which the injury was received, and there may be some question as to whether it was ever presented to the common council for audit. We shall, therefore, confine our attention to the latter claim, the substance of which is as follows: “ On the evening of December 21/1891, while driving along the Big Ridge road, my buggy was overturned by coming in contact with a large pile of dirt in the middle of the street, at a point about one-third of a mile east of tlie Charlotte, branch of the New York Central and Hudson River railroad, as near as I can estimate the distance, and I was thrown to the ground. The buggy and harness were broken and damaged to the extent of $20.00. I was severely bruised and lamed, and was also rendered unconscious by the fall, and remained in the street in that condition over an hour, and contracted a severe sickness from the exposure, and was confined to the house for several weeks, and put to considerable expense for medical attendance. I claim $200.00 for my personal injuries, which, with the damage to the buggy and harness amounts to $220.00. The dirt had evidently been thrown up and left there by some one engaged in the construction of a sewer in the street. The night was very dark, and there were no guards or lights of any kind around the obstruction to warn people of the danger. I am advised by counsel that my claim is a ■meritorious one, and I respectfully ask that Your Honorable Body ■will allow it and authorize its payment.” .

As we have seen, the statute requires that the claim presented for •audit in case of injury shall state “when, where and how occasioned.” This statute should receive a reasonable construction. The time, place and circumstances should be given with reasonable accuracy, so as.to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not think this statute contemplates that a person injured should be required to give the exact time when it occurred, for this, in many cases, would be quite impossible. Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred. The claim presented by the plaintiff states that the injury was received on the evening of December 21, 1891; that the night was very dark ; that there were no guards or lights of any kind around the obstruction; that he was rendered ■unconscious by the fall and remained in the street in that condition • over an hour. The claim further states that the dirt was in the middle of the street, at a point about one-third of a mile east of the ■Charlotte branch of the New York Central and Hudson River railroad, as near as the claimant can estimate the distance. We think -.these statements are sufficiently definite as to the time and place.

It is further contended that the claim presented by the plaintiff for audit is defective for the reason that it does not allege any negligence on the part of the defendant, or of any person for whose acts the defendant would be hable; but we find no such requirement in the' statute. As we have seen, it requires the claimant to specify the time, place and how occasioned. The claim presented for audit is. not intended or required to be the complaint in the action, or to■ contain the allegations which would be required to be incorporated in such complaint.

It is charged that this claim was not properly presented to the common council for audit, but the plaintiff’s attorney testified that, it was presented to the common council on the first day of August. He then offered it in evidence. Its reception was objected to as; immaterial. It was received by the court and marked an exhibit in the case. No objection appears to have been made upon the ground: "that it had not been properly or sufficiently proved that the claim had been presented to the common council for audit. We must, therefore, assume that further evidence upon that subjéct was waived.

It appears that the plaintiff served two notices of intention to commence an action for the injury sustained. One was served on the-1st day of August, 1892, and the other on the 21th of September, 1892. The first was seven months and eleven days after the injury was received, and the second nine months and three days thereafter. As we have seen, the statute requires that this notice of intention be served within six months after such cause of action accrued.”' The question is thus presented as to when the cause of action accrued. Did it accrue at the time the plaintiff received the injury, or did it accrue after the expiration of forty days after the presentation to the common council of the plaintiff’s claim for audit ? In determining this question we should, so far as possible, harmonize the various provisions of the act. No time is specified within which the claim must be presented to the common council. No action, however, can be brought upon the claim until after the expiration of forty days after such presentation, and all actions brought for such damages must be commenced “ within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued,” and no action shall be maintained unless notice of intention shall have been filed within six months, after such cause of action shall have accrued. We thus have two statutes of limitation, which may be properly designated as the one-year limitation and the six months’ limitation. In the former the action must be commenced within one year “ from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued.” We thus have the two expressions connected with the disjunctive or. If the former expression is to be disregarded and the latter followed the effect would be to nullify the provision and leave no limitation whatever; for, as we have seen, no limit of time is placed upon the presentation of the claim to the common council, and no action can be maintained until forty days thereafter, so that a claim could be presented to the common council one, five or ten years after the injury was received. We cannot, therefore, adopt this view. The two expressions, as used in this provision, must be understood, and were intended to mean one and the same thing, and that is that actions for injuries of the character described should be commenced within one year from the time of receiving the injuries, and the expression “ or when the cause of action mentioned in the complaint shall have accrued,” has reference to the time of such injury. It may be that the forty days given to the common council within which to audit and allow the claim, and during which time the statute prohibits the bringing of an action, should not be counted as a part óf the year given within which the action must be brought. (Brehm v. The Mayor, etc., 104 N. Y. 186.)

But this question is not involved, and is, therefore, not necessary for us to here determine, for this action was brought within the year. We are thus brought to the concluding provision of the statute referred to, that of the notice of intention. In this provision we have the same expression, after such cause of action shall have accrued.” Ordinarily, when we find the same expression used in various provisions of a statute, the same meaning should be given to each, and yet we hesitate to follow that rule in construing this provision; for that phrase, when used independent of another, referring to the same time, has a well-defined meaning, and to follow the construction given to the phrase in the former provision, would, in this, destroy the harmony between this and other provisions. First, the statute requires the common council to examine, settle and audit. Second, it requires a claim to be presented to them for audit. Third, they are given forty days within which to determine the merits of the claim. All this has to be done before any action can be commenced, and, ordinarily, a cause of action has not accrued until it can be instituted. Again, the common council is composed of elective officers, whom the law presumes will discharge their duty. No reason is apparent why the notice of intention should be served during the time given to the common council to discharge its duty. It would rather seem impertinent to serve a notice containing a threat to commence an action whilst the common council was engaged upon a determination of the merits of the claim in the discharge of its duty. But we think this provision is subordinate to the former provision, and in no case can it operate to extend the limitation given by that provision. It evidently contemplates that the claimant will with reasonable promptness preseht his claim to the common council; that if the common council fails to audit and allow the same within forty days thereafter, the claimant shall have the right to commence an action therefor; but before commencing such an action, and within six months from that time, and within the year given by the former and the general provision of limitation, notice of intention to commence such action must be filed with the counsel of the corporation or other proper law officer. (Steen v. Niagara Fire Ins. Co., 98 N. Y. 315; Mayor v. The Hamilton Fire Ins. Co., 39 id. 45; Hay v. Star Fire Ins. Co., 77 id. 235; Fisher v. The Mayor, etc., 67 id. 73.)

The judgment and order appealed from should be affirmed.

Lewis, J., concurred; Dwight, P. J.,'and Bradley, J., concurred in the result.

Judgment and order appealed from affirmed.


author: Lewis, J.:

text:
    The Dansville and Mount Morris Railroad Company, Appellant, v. Amariah Hammond, Impleaded, etc., Respondent.

      Condemnation proceedings — when the defendant is entitled to costs on a preliminary hearing —practice.

    The only case in which a defendant in condemnation proceedings is entitled to costs upon the preliminary hearing is where he succeeds in having the petition dismissed.
    The proper practice in proceedings taken for the condemnation of real property considered and laid down.
    Appeal by the plaintiff, The Dansville and Mount Morris Railroad Conrpany, from a judgment of the Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of Livingston on the 6th day of July, 1892, upon the report of a referee, adjudging that the plaintiff was entitled to take and hold the property of the defendant described in the petition for railroad purposes, upon making compensation therefor, and that in ascertaining the compensation to be made to the defendant Hammond, the owner thereof, the commissioners should estimate its value, including all rails, ties, culverts, bridges, and all structures thereon. And further adjudging that the said defendant was entitled to recover of the plaintiff $192.79, his costs and disbursments in the action.

      P. T. Piohardson, for the appellant.

      F. O. Pedí, for the respondent.
   Lewis, J.:

This is a proceeding instituted by the plaintiff, a domestic railroad corporation, for the purpose of acquiring, by condemnation, certain lands situated in Livingston county, New York, owned by the defendant Hammond. The plaintiff was organized under the statutes of the State for the purpose of maintaining and operating a. railroad in Livingston county, New York, which had been theretofore constructed by the Erie and Genesee Valley Railroad Company, and operated by that company and by the New York, Lake Erie and Western Railroad Company as lessee of the said Genesee Yalley Company. The Genesee Yalley Company, after it was organized, instituted proceedings to condemn a right of way across the defendant’s farm, and caxuied on such proceedings down to the negotiations with the defendant for the right of way, and, without prosecuting them further, entered upon the defendant’s land against his remonstrances, gx’aded a track and constructed superstructures thereon, ■consisting of bridges, sluices, ties, rails, fences and other improvements, and thereupon commenced the operation of its road and ran its trains across the defendant’s land until the 1st of January, 1872, when it leased its railroad and franchises to the New York, Lake Erie and Western Railroad Company. The latter company entered into possession and operated the road until 1891. The defendant Hammond in 1884 commenced an action of ejectment against the Erie and Genesee Yalley Company and the New York, Lake Erie and Western Railroad Company to recover possession of this strip of land, and in the year 1887 recovered a judgment against the ■defendants, adjudging that he was seized of an estate in fee in said lands, and was entitled to possession thereof, and by virtue of the judgment and execution the sheriff put the defendant in possession of the land on the 6th day of November, 1891. The plaintiff ■acquired title to the franchises and property of the Genesee Yalley road in October, 1891, through foreclosure proceedings, and thereafter, and on the twentieth day of November of that year, instituted these proceedings to condemn the right of way above described across the defendant’s land. Issue was joined, and a trial was had before a referee, who made a decision by which he found and ■decided that the plaintiff was entitled to take and hold the property ■described in the petition for railroad purposes, and reported that in ascertaining the compensation to be made to the owner the commissioners should estimate the value of the superstructures upon the land above mentioned, and he further decided that the defendant was entitled to recover costs and disbursements of the proceedings against the plaintiff. An interlocutory judgment was entered upon the said decision; the plaintiff appealed from said judgment and asks for a reversal of so much thereof as relates to the direction to the commissioners to ascertain the value of the superstructures and to such part thereof as awards costs. It is his contention that the referee did not have jurisdiction to pass upon these questions. The order of reference was in the ordinary form, to the effect that upon reading and filing the petition of the plaintiff, praying that it may be adjudged that the public use requires the condemnation of the real property therein described, and that the plaintiff may be adjudged entitled to take, hold and possess such property for the purpose of constructing, maintaining and operating its railroad upon making compensation therefor, and that commissioners of ■appraisal may be appointed to ascertain such compensation, and on reading and filing the answer of the defendant Hammond, it be referred to the referee to hear and determine the issues so joined.

A complete system of practice in condemnation proceedings is provided by chapter 23 of the Code of Civil Procedure. The proceedings are commenced by service of a petition which must contain a specific description of the property to be condemned, its location by metes and bounds with reasonable certainty, the use for which it is required, names and places of residence of the owners, .a statement that the plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability, and a general demand for relief to the effect that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified; upon making compensation therefor; and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners of the property so taken. Annexed to the petition to be served must be a notice to the owner of the time and place at which it will be presented to a Special Term of the Supreme Court; the owner may on said day appear and interpose an answer which must contain a general or specific denial of each material allegation of the petition controverted by.him, or a statement of new matter constituting a defense to the proceeding. The court is required to try any issue raised by the petition and answer, or it may refer the same to a referee to hear and determine. It is provided that a judgment may be entered pursuant to the decision of the court or referee, and if it is in favor of the defendant the petition shall be dismissed, with costs to be taxed; but if the decision is in favor of the plaintiff, judgment shall be entered adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold said property upon making compensation therefor; the court shall thereupon appoint three commissioners to ascertain the compensation to be made to the owners for the property to be taken. The commissioners are required to view the premises, hear the testimony, reduce it to writing, and fix the amount of compensation which ought to be made to the owner, and make report to the court of their proceedings -with the minutes of the testimony taken. The report and testimony must be filed, and any party to the proceeding may move for its confirmation. The court may confirm the report or may set it aside for irregularity or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient. There are provisions regulating the awarding of costs upon the final disposition of the proceedings. The only provision for costs upon the preliminary hearing before the court or referee is in case the petition shall be dismissed; then the defendant is entitled to costs.

The petition presented by the plaintiff contained the usual allegations required by the Code; in stating the reasons of the plaintiff’s inability to acquire the title to the land by agreement with the defendant, it is stated that the price demanded by said Hammond was excessive and much beyond the actual value of the lands; that the said Ilammond claimed he was entitled to superstructures on said lands and demanded payment therefor, which was refused, and the plaintiff alleges that the superstructures on said lands, consisting of the ties, rails, fences, bridges, sluices and all the property and improvements which the said Erie and Genesee Valley Railroad Company, its agents and lessees, put upon said land in the construction, maintenance and operation of said railroad, is now .the property of the plaintiff under the proceedings aforesaid; that in consequence of said' demand of said Hammond, and of his refusal to convey the title to said land unless the price demanded by him was paid to him, no agreement can be arrived at for obtaining title thereto, and this proceeding is made necessary. The answer of the defendant Hammond admitted many of the allegations of the petition, and pleaded in bar of the plaintiff’s claim to the ownership of the superstructure the judgment in ejectment above mentioned. The learned referee probably embraced in his decision the provision requiring the commissioners to aqtpraise the superstructures because of the allegations in the petition mentioned. The allegations in the petition in reference to the superstructures were unnecessary and superfluous, except perhaps as affording some explanation of the failure of the parties to come to an agreement as to the value of the land sought to be condemned. There was no demand in the petition to condemn the superstructures; on the contrary, the plaintiff claimed to be the owner of them; hence there was no necessity or propriety in ashing for their condemnation. As the plaintiff was not asking for the condemnation of the superstructures the defendant was not required by the provision of the Condemnation Law to make answer regarding that allegation. It may be held ultimately, in view of the judgment in the ejectment action, that the defendant is the owner of said superstructures, but that question will arise before the commissioners when they are assessing the value of the property sought to be condemned, and before the court upon the application for the confirmation of their report. If the superstructures belonged to the defendant the commissioners may take that into consideration in fixing the value of the property. The plaintiff cannot be said to have consented that the referee should pass upon this question, and is, therefore, estopped from raising it upon this appeal, for such a finding on the part of the referee could not have been anticipated, and the plaintiff duly excepted to such finding.

The referee erred in giving costs to the defendant. As we have seen, the only case in which the defendant is entitled to costs upon the preliminary hearing is where he succeeds in having the petition dismissed. The petition was not dismissed in this case, but, on the contrary, the relief asked for was granted to the plaintiff, to wit, that he was entitled to take and hold the property.

The judgment appealed from should be modified by striking therefrom so much thereof as requires the commissioners to appraise the superstructures, and also that part relating to costs, and as so modified it should be affirmed, without costs of this appeal to either party.

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

So ordered.


text:
    Robert E. Burger, Plaintiff, v. William D. Koelsch and Another, Defendants.

      City oo'dinances— a contract in violation of, is void — action not maintainable thereon — parties not obliged to make changes therein to render it valid — not the foundation of an implied assumpsit.

    •City ordinances have the force of law, and contracts in violation of them are illegal and void, whether the parties knew the law or not.
    When a contract is made to do an act in the construction of a building prohibited by statute, no action can be maintained to enforce performance or to obtain damages for a breach thereof; nor if the claim be founded upon.the contract will an action on the case for damages be supported.
    In an action between the parties to a contract having equal opportunities to know, when they entered into the same, of the existence of an ordinance making it illegal, the defendant is under no obligation to make changes in the same so as to render it legal where the alterations are not trivial and inexpensive. The rule might be different where the changes were trivial.
    An illegal contract cannot be made the foundation of an implied assumpsit, and a party to an illegal contract will be released therefrom while it remains executory.
    When it is made to appear upon the trial of an action that the object thereof was to enforce an illegal contract, it is the duty of the court to refuse to proceed further with the action and to leave the parties where they have placed themselves.
    Motion by tbe defendants, William D. Koelscb and another, for a new trial on a case containing exceptions ordered to be beard at the General Term in the first instance after a trial at the Erie Circuit, where a verdict for $350 was rendered in favor of the plaintiff, by direction of the court, on the 9th day of May, 1893.

      George M. Osgoodby, for the plaintiff.

      Frctnlc It. Perhins, for the defendants.
   Lewis, J.:

The parties entered into a written contract on the 18th day of June, 1892, by the terms of which the plaintiff agreed to provide the materials and construct for filie defendants a three-story brick building on Chenango street in the city of Buffalo for the consideration of $9,800, according to certain plans and specifications furnished by the defendant and forming part of the contract.

The lot upon which the building was to be located was thirty feet, front and rear, and ninety-two feet in depth.

The plans located the front of the proposed building upon the line of Chenango street and called for bay windows upon the front of' the building, projecting two feet into the street. The building was to be twenty-eight feet wide upon Chenango street and the entire width of the lot in the rear, and seventy-two feet long. The contract provided that the outside brick walls of the first story should be twelve inches only in thickness. An ordinance of the city of Buffalo, in force at the time of making this contract and still in-force, provided that the external walls of the first story of three-story brick buildings constructed in the city should be of the minimum thickness of- sixteen inches. The ordinance further provided that every building erected contrary to the provisions of the ordinances of the city shall be deemed to be a common nuisance, and the superintendent of buildings may order the same removed, and in case the owner shall neglect or refuse to remove such building within five days after notice so to do, the board of public works may remove it at the expense of the owner.

The charter of the city provided that before the construction of any building in the city is commenced, the owner shall file with the superintendent of buildings a sworn statement of the character and use of the building he proposes to erect, and its location on his premises, with a copy of the plans and specifications of such building, which statement shall contain the name and residence of the owner and the purposes for which the building is designed.

The superintendent shall, within ten days after the filing of the plans, specifications and statement, approve the same or indicate in writing the alterations to be made therein to make them comply with the general laws of the State and ordinances of the city. But no building shall be erected or remodeled until the approval of the superintendent shall be obtained and a written permit issued by him to the owner or builder of such building.

The defendants presented their plans and specifications to the superintendent for the purpose of obtaining the required permit. He refused his consent for the reasons : First, that the plans contemplated that the brick walls of the first story of the building were to be only of the thickness of twelve inches; second, that the bay windows would encroach upon the street, and various other objections to the plans were made by the superintendent.

Defendants thereupon informed the plaintiff of the obstacles to the erection of the building, and the plaintiff suggested that changes be made in the plans and specifications, so that they would conform to the ordinances of the city.

The defendants declined so to do because of the additional expense, and for the reason that the increase of the thickness of the walls would make the stores, to which the first story was to be devoted, too narrow; the plaintiff thereupon proposed to the defendants that the plan of building of brick should be abandoned, and that the building should be constructed of wood, to which the defendants consented, and procured plans and specifications for a wood building, and submitted them to the plaintiff and other builders for bids.

The defendants thereafter let the contract to build a wooden building upon the lot to another builder, whose bid was considerably lower than that of the plaintiff’s; the plaintiff thereupon claimed damages of the defendants for a breach of the contract, and instituted this action.

It was stipulated on the trial that the plaintiff’s damages were $350, and the court directed a verdict for the plaintiff for that amount.

No exception was taken by the defendants to the direction of the ■verdict. At the close of the plaintiff’s evidence the ordinance prohibifcing the erection of the building with the walls of the thickness mentioned was in evidence, and the defendants, at the close of the plaintiff’s case, moved for a nonsuit.

The motion was denied and defendants duly excepted. It, therefore, appeared at this stage of the trial that the construction of the building according to the contract would have been in direct violation of the city ordinances ; it would have been a nuisance if constructed which the board of public works could have abated. The ordinance absolutely prohibited the erection of the building according to the terms of the contract.

The agreement was, therefore, unlawful. City ordinances have the force of law, and contracts in violation of them are illegal. (1 Dillon’s Mun. Oorp. § 308 and note.)

A contract void for illegality is no contract. (2 "Whart. Cont. § 935.)

Where a contract is to do a thing which cannot be performed without a violation of the law it is void, whether the parties knew the law or not. (Law of Contracts, by Sir W. R. Anson, 191.)

When a contract is made to do an act prohibited by statute no action can be maintained to enforce performance, or to obtain damages for a breach thereof; nor if the claim be founded really upon the contract will an action on the case for damages be supported. (1 Story on Cont. § 769; see Metc, on Cont. 247-250; Broom’s Com. Law, 357; Brinkman v. Eisler, 7 N. Y. Supp. 193; aff'd., 16 id. 154.)

It is claimed by the plaintiff that it was incumbent upon the defendants to so change and modify the plans aüd specifications that they would not conflict with the ordinances of the city.

There is an absence of any evidence as to the increased expense of constructing the building with sixteen instead of twelve-inch walls. But manifestly the additional expense would have been considerable, and then the width of the stores would have been materially lessened, and we do not see, as between the parties having •equal opportunities to know, when they entered into the contract, of the existence of the ordinance making the contract illegal, that the defendants were under airy obligations to make the changes in the plans and specifications suggested. Had the alterations been trivial and inexpensive, it may be that fhe rule would be different.

A further answer to this claim is that the complaint is based upon the original contract; the contract is alleged, the breach stated and damages are claimed on account thereof.

There is no allegation that the defendants refused to make the changes suggested by plaintiff in the contract so as to avoid the illegal features; if so changed, it would have been a new contract involving new bids for the work; the defendants were not obliged to make a new contract with plaintiff; the plaintiff occupies the position of appearing in court with an illegal contract — one that he was powerless to perform — a contract which, if he had performed, h.e would have created a nuisance, and is asking damages for the breach of it.

We are not referred to any case holding that, when parties have made an illegal contract, either party is under an implied obligation to make a new one; if one is bound so to do, tlie other must be, for there must be mutuality of contract. An illegal contract cannot be made a foundation of an implied assumpsit. (Gillet v. Phillips, 13 N. Y. 119.) A .party to an illegal contract will be released therefrom while it remains executory. (Strait v. Nat. Harrow Co., 18 N. Y. Supp. 221; 1 Story on Cont. § 617.)

It is claimed by the plaintiff that the defendants’ answer failed to> raise an issue as to the illegality of the contract. The answer in that regard is informal and somewhat imperfect.

It does, however, allege that the defendants presented their plans and specifications to the superintendent of buildings, and that he, by virtue of his office and the law and ordinances, did insist and maintain that said building should not and would not, under the law and ordinances aforesaid, be erected or constructed according to said plans and specifications, and thereby prevented the erection and construction of said building under and according to said contract.

Then follow allegations to the effect that the contract was abandoned by the mutual consent of the parties and other plans adopted as stated.

The prohibitory ordinance mentioned was received in evidence without the question being raised by the plaintiff as to the sufficiency of the defendants’ answer. Had the attention of the court been called to the answer, it could, if necessary, have been so amended as to obviate the objection; it is too late upon appeal to raise the question.

But, without reference' to the pleadings, when it was made to appear that it was an illegal contract plaintiff was asking to enforce, it was the duty of the court to refuse to. proceed with tlie action further, and leave the parties where they had placed themselves. (Richardson v. Buhl, 77 Mich. 661.)

The plaintiff failed to make a case entitling him to a verdict.

Tlie defendants’ motion for a nonsuit should have been granted; the verdict should be set aside and a new trial granted, with costs to abide the event.

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

Defendants’ motion for new trial granted, with costs to abide the event.