text:
    Uri C. Van Vleck and Others, Respondents, v. Emilus J. Enos and Others, Appellants.

      1Foreclosure by advertisement — statute to be strictly followed — defective affidavits — before whom verification of affidavit of sale may be made ■— common-law proof of sale — what makes a person merely a mortgagee — as such he cannot bring an action of ejectment — what title passes upon an administrator’s sale of real estate — proof of bonafides by a purchaser.

    A compliance with the statutory requirements relating to foreclosure by advertisement is a condition precedent to a valid sale under the power contained in the mortgage; such requirements have the same effect as if they were incorporated into the mortgage.
    A person claiming title under a foreclosure and sale by advertisement assumes the burden of showing that the statutory requirements were complied with.

      Where the affidavits relating to such a sale, had in 1869, fail to show that the clerk entered in the book in which notices of foreclosure and sale were affixed, at the bottom of the notice, the time of receiving and affixing the same or that he subscribed it or that he indexed the notice under the name of the mortgagor, the affidavits are materially defective and show no title in the purchaser.
    Where the statute enumerates the officials who are authorized to take the affidavit of the person who acted as auctioneer at the sale, no person other than one of such officials has power to act in the premises.
    A sale in foreclosure by advertisement may be shown to be valid by common-law proof, but such proof must positively establish all the facts required by the statute to be stated in the affidavit of sale.
    In an action of ejectment it appeared that the plaintiff’s title grew out of the following facts: Dewitt C. Enos, owner of the premises in question, had given a mortgage upon them which was unpaid at the time of his death; that an agreement was made between the widow of Dewitt C. Enos, her father, Alanson Trask, and the defendant Emilus 0. Enos, by which the mortgage was to be purchased by the widow and Emilus,. foreclosed, and the title transferred to some other person for the purpose of divesting the title which 'the infant children of the decedent had in the premises. The mortgage was purchased and assigned to Alanson Trask who foreclosed it by advertisement. The premises were sold in 1869, and bid off by Eneas E. Enos (a son of the defendant Emilus J. Enos), under an agreement made between himself, Emilus J. Enos’and Alanson Trask, by which Eneas B. was to bid off the premises for Emilus J., execute a mortgage to the widow for her advances, retain the title as security for his own, and upon repayment convey the premises to his father, Emilus J. Enos. The mortgage was executed to the Widow, but Eneas B. Enos never conveyed to his father, who remained in possession of the premises until the commencement of the present action of ejectment.
    In December, 1886, Emilus J. Enos made a general assignment, and in September, 1887, his assignee sold his interest in the premises to the children of Dewitt 0. Enos, who are defendants. They received a deed conveying such interest October 29, 1887, which was recorded January 6, 1888.
    Eneas E. Enos having died in November, 1886, insolvent and without heirs, proceedings were taken in a Surrogate’s Court' to sell his real estate for his debts and funeral expenses, and the premises in question were sold to the plaintiffs in March, 1888, and the deed of the administrators to them was recorded April 18, 1888.
    Thereafter the plaintiffs brought an action of ejectment and recovered a verdict for the possession of the premises in question.

      Held] that under the agreement by which Eneas B. Enos purchased the premises his interest was only that of a mortgagee entitled to be repaid his advances, and that he could not have maintained an action of ejectment;
    That the sale of the premises by the administrators of Eneas E. Enos to the plaintiffs conveyed only the interest which the decedent had in the premises at the time of his death, which was that of a mortgagee;

      That even should it be assumed that a purchaser in good faith could cut off the equities of Emilus J. Enos and those claiming under him, and acquire a better title than Eneas E. Enos had at the time of his death, the plaintiffs had not, upon all the facts of the case, shown themselves to be purchasers in good faith and without actual or constructive notice.
    Appeal by the defendants, Emilus J. Enos and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Madison on the 9th day of May, 1894, upon the verdict of a jury rendered after a trial at the Madison Circuit, and also from an order entered in said'cleric’s office on the 19th day of April, 1894, denying the defendants’ motion for a new trial made upon the minutes.
    The action was begun May 14, 1888.

      FT. Foote, A. A. Foote and G. A. Mitchcoek, for the appellants.

      Mason <& Gushman and John F. Smith, for the respondents.
   MaetiN, J.:

This was an action of ejectment to recover the possession of a farm situated near the village of Hamilton, N. Y.

The plaintiffs’ alleged title is based upon the claim that Dewitt O. Enos owned the premises and gave a mortgage thereon, which, ■after his death, was foreclosed and the farm was purchased by Eneas E. Enos, who thereupon became tfie owner; that after the death of Eneas E. Enos proceedings were instituted by his administrators to sell his real estate for the payment of his debts, which resulted in a sale of the premises to the plaintiffs and others, and that under and by virtue of such sale they acquired the title in fee to the farm in question.

The defendants, however, claim that the mortgage given by Dewitt C. Enos was never properly foreclosed, and hence no title whatever passed to Eneas E. Enos; that if it was properly foreclosed it was purchased under an express arrangement or agreement whereby'Eneas E. Enos took only a mortgage interest in the premises while the,fee belonged to Emilus J. Enos; that subsequently Emilus J. Enos became insolvent, made a general assignment for the benefit of his creditors; that his assignee sold the interest of Emilus J. Enos in "the premises, which was purchased for and belongs to the defendants Alanson T. Enos, Frank Enos and Hetty Mitcbell; and as the only title that Eneas E had, or that the plaintiffs acquired, was that of a mortgagee, that neither Eneas nor the plaintiffs could maintain this action.

At the time of his death Dewitt 0. Enos wa,s the owner of the premises in question subject to a mortgage upon which there was then unpaid $2,500. He died December 14, 1868. At that time the premises were worth about $8,000. His wife and three infant children survived him. His widow was appointed administratrix of his estate. After his death a plan was devised by and between the widow of Dewitt C. Enos, Alanson Trask, her father, and Emilus J. Enos, a brother of the decedent, by which the mortgage upon the premises was to be purchased by the widow and Emilus, foreclosed and the title transferred to some other person fur the purpose of divesting the title which the defendants Alanson T. Enos, Frank Enos and Hetty Mitchell, the then infant children of the decedent, had in the premises.

In pursuance of this plan the widow of Dewitt C. Enos furnished $1,000 of the funds belonging to his estate, and Eneas E. Enos, a son of Emilus J. Enos, furnished $1,500 for the purpose of purchasing the mortgage upon the premises, foreclosing it, and thus divesting the title of the infant children of the decedent in the premises. The mortgage was purchased and assigned to Alanson Trask, who immediately commenced proceedings to foreclose it by advertisement. The premises were sold June 28, 1869, for $2,528, and bid off by Eneas E. Enos, under an agreement which had been made between himself, Emilus J. Enos and Alanson Trask, by which Eneas E. was to bid off the premises for Emilus J., hold them as security for the $1,500 furnished by him to purchase the mortgage, give a mortgage to Anna F. for the $1,000 she had advanced, and give to Emilus J. a defeasance to convey the premises to him when he, Eneas E., was paid the $1,500 advanced, with interest. Such a defeasance was subsequently executed under seal, acknowledged and delivered to Emilus J. Enos, and a mortgage for $1,00.0 was executed and delivered to Anna F. Enos. The premises continued in the possession, under the management and control of Emilus J. and his wife, and they received the entire proceeds thereof, until the commencement of this action. The premises were never conveyed by Eneas E. to his father, Emilus J.

In December, 1886, Emilus J. made a general assignment for tbe benefit of his creditors. September 10, 1881, his assignee sold all his right, title and interest in the premises in question, which was purchased for the children of Dewitt C. Enos, to whom a deed was given October 29, 1887, which was recorded January 6, 1888.

November 24, 1886, Eneas E. Enos died insolvent and intestate, leaving a widow but no children. His widow and David C. Mott were appointed administrators of his estate. Subsequently, proceedings were instituted in Surrogate’s Court to sell the real estate of Eneas E. Enos for the payment of his debts. Under those proceedings the premises in question were sold March 30, 1888, to the plaintiffs and two other persons who have since died, and an administrator’s deed in the usual form was given to the purchasers and recorded April 18, .1888.

The evidence discloses that the purpose of the foreclosure and sale under the mortgage was to change the title to the property from the infant children of Dewitt C. Enos to some one else, so as to provide a home or secure the property for Emilus J. and his wife. While it is true that this was to be principally at the expense of the infants who were incompetent to consent, yet that the widow, or Trask, who was. their grandfather, intended to deal fraudulently or unjustly by them, is not to be supposed. The result of the transaction to the infants was the same, however commendable the motive may have been. The purpose of this transaction and the manner in wnich it was carried into execution were well known to the widow, Traslc, Emilus J- and Eneas E.

In the first place, the plaintiffs’ title and right of recovery are' dependent upon the validity of the mortgage foreclosure. If that was invalid, obviously this judgment cannot be upheld. The appellants contend that the foreclosure proceedings were void, and consequently the judgment should be reversed. In foreclosure by advertisement, the statute as it stood in 1869 required that a copy of the notice of foreclosure and sale should be delivered at least twelve weeks prior to the time specified for the sale to the clerk of the county in which the premises were situated, who should immedi-etely affix the same in a book prepared and kept by him for that purpose, and that the clerk should also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by him, and should index sucli notice to the name of the mortgagor. The affidavits of foreclosure and sale are the only evidence the plaintiffs have of their, title to the premises. No deed was given. The affidavits contain no proof that the clerk entered in the book in which notices of foreclosure and sale were affixed, at the bottom of the notice, the time of receiving and affixing the same, or that he subscribed it or indexed the notice to the name of the mortgagor. As to these requirements of the statute the affidavits are silent, and no other evidence was given upon the trial to show that these provisions of the statute were complied with.

In Mowry v. Sanborn (68 N. Y. 153, 161), where a history of proceedings for the foreclosure of mortgages by advertisement was given, and the requirements of the statute on that subject were considered, after stating what the requirements of the statute were, that among others a copy of the notice should be delivered to the county clerk, to be affixed in a book in his office, and that an entry of the time of receiving and affixing the same should be made, ANdebws, J., said: “ All these several acts required to be done were parts of the notice to be given, and were to be performed prior to the sale, at the times specified in the statute. These statute requirements were conditions precedent to a valid sale under the power, and have the same effect as if they were inserted in the mortgage, and a person claiming title under a statute foreclosure* assumes the burden of showing that they were performed.”

“ Statutory foreclosure, or foreclosure by advertisement, is exclusively a creature of legislative enactment; * * * every requirement of the statute must be strictly complied with, as failure to comply with any of its material directions will render the foreclosure irregular and void.” (Wiltsie on Mortgage Foreclosures, p. 879, § 768, and cases cited in note.)

The respondents’ contention, that the entry in the book kept by the clerk for the affixing of such notices of the time of receiving and affixing the notice subscribed by the clerk, and the indexing such notice to the name of the mortgagor, were immaterial and unessential requirements, and need not be proved to establish the validity of the foreclosure, cannot, we think, be sustained. The entry in such book of the time of receiving and affixing the notice, the subscription by the clerk, and the indexing of the notice to the' name of the mortgagor, are among the requirements of the statute,- and are made a part of the act of affixing the notice in the book kept by the clerk. It would not be contended, we apprehend, that if the notice had -not been in any manner affixed in the book kept by the clerk, the proceedings would be regular and the foreclosure valid. If to affix the notice in the book is material and necessary to a valid proceeding, it would seem that it should be affixed in the manner required by the statute, which includes the entry of the time when received and affixed, subscribed by the clerk, and that it should be indexed to the name of the mortgagor. This omission was a material one, and as there was no evidence except the affidavit as to the manner of affixing such notice, it was, we think, insufficient to show that the requirements of the statute had been complied with.

Another objection to the validity of the foreclosure rests in the fact that the affidavit of the person who officiated as auctioneer at the sale was not verified before an officer authorized to take it. It was taken before the deputy clerk of the county of Madison. The statute regulating the foreclosure of mortgages by advertisement as it then stood provided that the affidavit might be taken and certified ,by any judge of a court of record, any Supreme Court commissioner, any commissioner of deeds, or a justice of the peace. (2 R. S. 547, § 11.) There was no provision of statute which authorized even the county clerk to take such an affidavit, Craft v. Merrill (14 N. Y. 456) tends to sustain the appellants’ theory that the affidavit was not properly verified When we consider the provisions of the section above referred to, and examine section 49 of title 2 of chapter 3 of part 3 of the Revised Statutes (2 R. S. p. 284), which conferred upon 'county clerks all the powers to take affidavits which they possessed at the time this affidavit was taken, and find that such oaths as were required by law to be taken before particular officers were excepted, it is quite obvious that the deputy clerk had no authority to take the affidavit in question.

It is contended by the respondents, however, that the question whether the affidavit of sale was or was not sufficient is immaterial, because the sale was proved to have taken place. It was competent to prove tlie sale by common-law evidence. (Mowry v. Sanborn, 68 N. Y 153.) Tlie statute required proof of tlie time and place at wliicb tlie sale took place, the sum bid and tbo name of tlie purchaser. It is true tlie witness Foote testified that he thought lie followed the statutory proceedings and went through tlie regular form of foreclosure, and'that his other evidence tended to show that a sale took place; yet we fail to find sufficient, positive evidence of the facts required by the statute to be stated in the affidavit of sale to render it clear that the matters required to be stated in the affidavit, were proved as distinctly and clearly as was necessary to sustain the validity of such foreclosure.

We are, therefore, of the opinion that the evidence was insufficient to justify the court in holding or the jury in finding that the plaintiffs acquired a valid title to the premises through or under such foreclosure and sale.

If, however, it should be. held that the proof of the foreclosure and sale under the mortgage was sufficient, still it is quite obvious from the evidence that the title to the premises was to vest in Eneas E. Enos for a special purpose only, which was that; he should execute a mortgage to Anna F. Enos for the $1,000 furnished by the estate of Dewitt C. Enos to purchase the mortgage foreclosed, retain the title subject to such mortgage as security for the payment of the money advanced by him for the same purpose, and upon repayment convey the premises to Emilus J. Enos. That as between the parties Eneas E. Enos acquired only a mortgage interest in the premises, there is, we think, no doubt.

A deed absolute in form, but in fact given simply as security for a debt, does not convey the title, but is, both at law and in equity, a mortgage only. (Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1.) The rule that a deed absolute upon its face can in equity be shown, by parol or other extrinsic evidence, to have been intended as a mortgage, has been, upon the fullest consideration, deliberately established by the decisions in this State, and will not, it seems, be departed from. (Horn v. Keteltas, 46 N. Y. 605.) One claiming under a conveyance, in form a deed, but given as a mortgage, cannot maintain ejectment against the grantor or any other pei-son, and a reconveyance by the grantee to the grantor is not necessary to reinvest the latter with the absolute title; it is necessary only to clear tip tlie record title. (Shattuck v. Bascom, 105 N. Y. 39.) To establish that a conveyance or transfer of property, absolute on its face, was intended as a mortgage, and to give it effect as such, it is not material that the-conveyance should be made by tbe debtor or by him in whom tlie equity of redemption is claimed to exist. Whenever property is transferred, no matter in what form or by what conveyance, as a security for debt, the transferee takes merely as a mortgagee. (Carr v. Carr, 52 N. Y. 251.) The fact that a conveyance vests the legal title in the grantee is not decisive of the question whether it was an equitable mortgage. It may be a mortgage, although the defeasance be to another than the grantor. (Pardee v. Treat, 82 N. Y. 385.) There are many other cases holding the doctrine of those cited, but as these principles seem to be well established in this State we deem it unnecessary to cite further authorities. As the premises in question were purchased at the mortgage sale for the benefit of Emilus J. Enos and the title given to Eneas E. Enos to secure him for the money advanced for the purchase of the mortgage, and to give a mortgage thereon to secure the $1,000 advanced for the same purpose by the widow of Dewitt 0. Enos, it is manifest that the' title or equity in the premises was to belong to Emilus J. Enos; that it was held by Eneas E. Enos in trust for him, and that as such trustee he was authorized to execute the mortgage to Anna E. Enos. The giving • of this mortgage did not, we think, in any way affect the relation of the parties or change that of Eneas E. Enos from that of mortgagee holding the equity or legal title in trust for Emilus J. Enos. (Stoddard v. Whiting, 46 N. Y. 627.) The principle of the cases cited fully sustains our conclusion that the only interest that Eneas E. Enos acquired to the premises in question was that of a mortgagee, and that he could not as such have maintained an action of ejectment.

This brings us to the consideration of the question whether the plaintiffs have any other or better title than Eneas E. Enos possessed at the time of his death. As we have already seen, the plaintiffs claim to have acquired their title to the premises by virtue of an administrator’s sale for the payment of the debts and funeral expenses of Eneas E. Enos. The statute under which these proceedings were instituted provides only for the sale of the real property •of which the decedent died seized, and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him or with a person from whom he derived his interest. It also provides that a sale, pursuant to statute, vests in the grantee all the estate, right and interest of the decedent in the real property so conveyed at the time of his death free from dower not assigned, but subject to all subsisting charges by judgment, mortgage or otherwise which existed at the time of his death. (Code, §§ 2749, 2778.) The evidence discloses that Eneas E. Enos was never in fact seized of the premises in question, but that the only interest he possessed was that of a mortgagee, who held the legal title as security for the payment of his debt. Under these circumstances it is difficult to find any justification in the statute for the'sale of these premises under the proceedings instituted by the administrators as the decedent was not seized of them at his death. It may be that in a proper action the plaintiffs would be entitled to recover the interest which Eneas E. had in the premises, but that question is not here. Even if the sale was authorized the only estate, right or interest which would°vest in the grantee under such a conveyance would be that which the decedent had in the property at the time of his death (Matter of the Executors of Dolan, 88 N. Y. 309, 322); and as the only estate, right or interest that he had was that of a mortgagee it would seem to follow that if the plaintiffs succeeded to that interest they could not maintain this action. It may be that, as between Eneas or Emilus and a third person who was a purchaser in good faith and for value, Eneas was to be considered as the legal owner of the premises, and the purchaser would obtain a title to which the equity of Emilus would not attach; but if the purchase was with notice, the purchaser would be in no better position than his grantor, and his deed would be at most an- assignment of Eneas’ interest in the property. If, therefore, we are incorrect in our conclusion that under the statute no greater right could be sold than that possessed by the decedent at the time of his death, and the purchaser acquired the legal title to the premises upon recording his conveyance, then the question whether the plaintiffs were purchasers in good faith properly arises. • Upon that question much evidence was given. It was shown that Emilus J. Enos and his wife were in actual, open and visible possession of the premises, and bad been so possessed of them for many years. This ivas constructive notice of the interest of Emilus J. in the premises, and was sufficient to put the plaintiffs upon inquiry to ascertain what the rights of the defendants were in the premises. (Bassett v. Wood, 55 Hun, 587, and cases cited in opinion.)

Again, the premises were sold by the assignee of Emilus J. in September, 1887, and purchased for the children of Dewitt C. Enos, to whom a deed was given, which was recorded January 6, 1888, more than two months before the premises were sold to the plaintiffs, and more than three months before their deed was recorded. The proof also' disclosed that some of the plaintiffs and the attorney who was acting in the matter for all, acquired information in regard to the interest of the children of Dewitt C. Enos in the premises, and as to the interest of Emilus J. therein, which, if credited, was sufficient to show that the plaintiffs were not purchasers in good faith. On the other hand, the plaintiffs introduced evidence which tended to show that some of them were informed by Emilus J. that he had no title to the premises, and that information as to the rights' of the defendants was sought from one of the attorneys who foreclosed the mortgage, and who was the attorney for the assignee of Emilus J., and that no information showing that the title of Eneas was less than the legal title to the premises subject to the $1,000 mortgage could be obtained.

That at or about the time when it was offered for sale by the administrators, any of the plaintiffs made direct inquiry of Emilus J. or his wife as to their interest in the farm, for the purpose of ascertaining if they had any interest therein, is not pretended. The statements which were proved to have been made by Emilus J. were made at other times, and had no relation to this sale. Indeed, as to most of the plaintiffs they made no effort to ascertain what rights Emilus J. and his wife had in the premises, although such plaintiffs knew that Emilus J. and his wife were in actual, open and visible possession thereof. Nor was airy effort made by them to ascertain the rights therein of the defendants Alanson T. Enos, Frank Enos and Hetty Mitchell, although they had a deed, of the premises which had been recorded more than two months prior to the time of the administrator’s sale, which was known to some of the plaintiffs independent of the record, and some of them were informed that the foreclosure sale w'as in fraud of tlie rights of the children of Dewitt C. Enos. It may be that as to some of the plaintiffs the court was justified in submitting to the j.ury the question whether they were purchasers in good faith and for value, and yet, as the burden of proof was upon them to show they were such purchasers (Westbrook v. Gleason, 79 N. Y. 23; Seymour v. McKinstry, 106 id. 230), an examination of the whole case renders it so improbable that they had neither constructive nor actual notice of the rights of the defendants in the premises as to lead us to the conclusion that as to them the verdict of the jury was against the weight of the evidence. As to the other plaintiffs, the evidence was insufficient to justify the submission to the jury of the question whether they were purchasers in good faith. In other words, we are of the opinion that the plaintiffs have not sufficiently borne the burden of showing that they were purchasers in good faith, and for value to justify us in upholding the judgment herein upon the ground that they, as such, acquired a greater or better title than that possessed by Eneas E. Enos at the time of his death. These views lead us to the conclusion that the judgment should be reversed.

HaRDIN, P. J., and MerwiN, J., concurred.

Judgment and order reversed on the facts and law, and a new trial granted, with costs to abide the event.

       Sic.


source: Caselaw Access Project

author: MeRwiN, J.:

license: Public Domain

text:
    John Fitzgerald, as Administrator, etc., of Thomas Fitzgerald, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Contributory negligence — when a question for the jury — rules of a railroad corporation as to speed on down grades — failure to provide signals at bridges — damages not excessive.

    Upon tho trial of an action brought by an administrator to recover damages resulting from the death of his intestate, caused as alleged by the negligence of a railroad company, it appeared that the accident occurred at a low bridge and that the company had failed to provide the warning signals indicating the presence of such a bridge as required by section 2 of chapter 489 of the Laws of 1884. It also appeared that the train was descending a grade at a rate of about twenty miles an hour; that there was a rule oí the company that in descending grades conductors should see that their men were at their posts, and not allow their trains to acquire a greater speed than one mile in four minutes.
    The conductor, a witness for the defendant, testified that the deceased, a hrake-man, know that the bridge was low and that there were no warning signals at the bridge. There was also evidence to show that the deceased had been in the cab of the engine and that the fireman had told him that it was not necessary for him to go on top of the cars.

      Held, that the case was á proper one for the jury;
    That if the deceased knew the location of the bridge and that it was a.low one, but by reason of being occupied at'the time in the discharge of his duties, did not notice his approach to it, he would not necessarily be charged with contributory negligence;
    That evidence offered by the defendant, to the effect that the rule as to the speed permitted in descending grades, and its requirement that men should be at their posts, applied only to the grades at Schenectady and West Albany, did not militate against the right of the deceased to believe that the rule applied to all grades upon the road.
    It appeared that the next of kin of the deceased was his father, fifty-eight years old, with whom he lived; that the deceased was single, twenty-two years of age and earned one dollar and eighty-five cents per day.

      Held, that a verdict of §8,000 was not excessive.
    Appeal by tlie defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of the county of Herkimer on the 14th day of July, 1894, upon the verdict of a jury for $3,000 rendered after a trial at tlie Herkimer Circuit, and also from an order entered in said clerk’s office on the 5th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the damages resulting from the deatli of the plaintiff’s intestate, caused by tlie alleged negligence of the defendant.
    There was some evidence in the case that the deceased was told not to go on top of the cars, which is thus stated in the charge of the justice who tried the case :

      “ It was the duty of the conductor and engineman to see that the brakemen were on top of the train; were at their posts; and to see to it that the train was held back and not allowed to run over fifteen miles an hour. It was going down grade and this man left the engine and went on top of the cars. What did he go there for? He is not here to tell us, and we don’t know what was in his mind except so far as the evidence shows the conversation and acts at the time. The question is whether it was in the line of his duty, under the circumstances, to go there, or whether it was, as claimed by the defendant, that he had no business to go up there; that his duty did not call him there and he ought to have kept away from the place. Two things are suggested for which he might have gone there; one is that he might have been there to help stop this train from going too fast down grade, and that, sosfar as the evidence slio^s what this man said, seems to have been the idea in his mind. Because the fireman testifies substantially that just east of Green’s Corners, before they arrived at that place, Fitzgerald said: ‘"We are going down gradé here, are we not?’ and the fireman said, ‘Yes;’ and then the fireman says that he, deceased, began to stir himself as though he was going to get down from the seat; that he did get dáwn and went out at the back part of the engine, stopped there for a moment and then went up on the car. The defense say that he was under no obligation; that it was not his duty to go up there unless the engineer told him to go there, and that the firemati told him it was not necessary for him to go there ; and that the fireman told him in the presence of the engineer. The fireman says that he said something of that kind to him, and he used the language which I will- not repeat here, before he left the seat. That he made no reply. That he got down from his seat and went out, and the fireman says that he started to go over the tender, and that he spoke to him again, and, as he started to climb up on the car, he spoke to him a third time. . To neither of these remarks did the deceased make any reply. Did he hear him? Did he understand that he was being notified by the fireman in the presence of the engineer that he did not need his assistance down that grade ? These are questions which you may well consider. Perhaps I need not go further with reference to this suggestion of contributory negligence. You have a right to take into consideration not only what it is claimed the fireman said to him ; whether he understood what the fireman said; but also you have a right to take into consideration the rules and regulations of the company, as to whether he understood and had a right to understand from the language of the rulés that it was his duty, considering the fact that they were going down grade, and considering the rapidity with which the train was going, as yon may find ; at any rate that you may find ; whether he regarded it as his duty under the rules; whether the fireman spoke to him in that way or not; to go on the train to help slow down the train. There is the other suggestion as to what he went up there for; that he went to see whether the train was all together; and they reply to that that it was not necessary for him to go up there to stand there and see that; but that he might go up and raising his head two or three feet above the top of the car he could have seen the condition of the train.”

      G. D. Prescott, for the appellant.

      Iladley Jones, for the respondent.
   MeRwiN, J.:

The plaintiff’s intestate, Thomas Fitzgerald, was on November IT, 1887, in the employ of the defendant as a brakeman on a freight train that left De Witt early in the morning passing eastwardly. The claim of the plaintiff is that as the train passed under a low bridge, between Green’s Corners and Rome, the decedent, who was then on the top of one of the freight cars, was hit by the bridge and killed. It was between five and six o’clock in the morning, not fully light, and at that place there is a down grade, and there is evidence that the train was then going at the rate of about twenty miles an hour. It is claimed the defendant was negligent in not having at the bridge suitable warning signals as required by section 2 of chapter 439 of the Laws of 1884, which was then in force. It was shown that the defendant in this regard had failed to perform its duty, and it was a question of fact whether the decedent met his death at the bridge by reason of such failure.

Upon a former appeal in this case (59 ITun, 225) it was held that the decedent was chargeable with contributory negligence, it then appearing from the testimony of one of plaintiff’s own witnesses that the decedent knew of the dangerous character of the bridge and that there were there no warning signals. The witness who gave this testimony was not called by the plaintiff upon the trial now under review, but was called by the defendant and gave substantially the same testimony as he gave before. He was the conductor on the train. It was bold by the trial judge, correctly we think, that the credibility of the witness was for the jury and that it should not be said, as matter of law from his testimony, that the decedent knew of the danger and the lack of signals. If he knew the location of the bridge and that it was low, and still, by reason of being occupied at the time with the discharge of his duties, he did not take notice of its near approach, he would not. necessarily be charged with contributory negligence within the rule laid down in Wallace v. C. V. R. R. Co. (138 N. Y. 302).

As the case now stands we think that it should not be said, as matter of law, that the decedent took the risk of the dangerous bridge or was guilty of contributory negligence. There was evidence that he had passed over the road but once before. The train was a long one on a down grade going at a rapid rate for a freight train. He was told by the fireman that it was not necessary for him to go on top of the train, but, in the absence of any direction from the conductor or engineer, he had the right to infer, as the jury may have thought, from the rules of the company, that it was. his duty to be on top. There is evidence that this was to some extent for him to determine according to his own judgment, in view of the situation as it then was. Whether in this respect, in view of all the circumstances, he exercised reasonable care was for the. jury to say.

Our attention is called to some rulings upon evidence, but we find no reversible error. It was proper to show the situation at the time at the bridge as to signals. Whether there was any reason or necessity for the decedent going on to the top of the car was for the jury to say upon all the facts.

. The defendant claims that the court in its charge gave undue force to a rule of the defendant that provides that “ in descending grades the conductors will see that their men are at their posts, and not allow their trains to acquire a greater speed than 1 mile in 4 minutes. Conductors and engine men must not violate this ruta under any circumstances.” One of the witnesses of the defendant testified that this applied only to the West Albany and Schenectady grades. The rule contained no such limitation, and for aught that appears the decedent had the right to believe that it applied just as generally as it read.

The defendant claims 'that tlie amount of the verdict is excessive. The decedent was about twenty-two years old, was unmarried and lived with his father, the plaintiff, who was fifty-eight years old. He was receiving wages at the rate of one dollar and eighty-five cents per day, and had worked steadily from tlie time he was sixteen. His father was the next of kin. The amount of the verdict was largely in the discretion of tlie jury (Code, § 1904), and it should not, we think, be disturbed.’ (See Johnson v. Long Island R. R. Co., 80 Hun, 306, and cases cited.)

Hardest, P. J., and Martest, J., concurred.

Judgment and order affirmed, with costs.


author: MekwiN, J.:

text:
    James H. Doolittle, Respondent, v. Melinda Gambee, Appellant.

      Husband and wife — goods sold and delivered as alleged, to the wife —proof of sales to the husband by other parties — making a hostile witness one’s own — discrediting him ■— scope of cross-examination —proof of specific acts impeoxhing credibility.

    "Where the main issue-in an action is as to whether the plaintiff sold and delivered goods to the defendant, a married woman, or whether the goods were sold and were properly chargeable to her husband, it is m t admissible for the defendant to show that during the time in question other parties sold goods to the husband and looked to him for the payment therefor.
    The defendant, in an action brought to recover the purchase price of goods sold, in order to substantiate her defense of payment, called a witness previously sworn for the plaintiff and made him her own witness as to the new matter and then sought to discredit him as to his former evidence.

      Held, that if the defendant was not precluded from discrediting the witness as t.o his statements made when he was testifying for the plaintiff, that the defend • ant’s examination of the witness, in regard to the transaction testified to by him, was to be deemed cross-examination, and that the extent to which it should be permitted rested in the discretion of the court.
    Specific acts of a witness, the effect of which would he to impeach the value of his testimony, cannot be proved.
    • Appeal by tlie defendant, Melinda Gambee, from a judgment of "the Supreme Oourt in favor of tlie plaintiff, entered in the office of tlie clerk of the county of Onondaga oil the 16tli day of January, 1895, upon the report of a referee, with notice of an intention of bringing up for review upon the appeal the report of the referee.
    In the complaint in this action it is alleged that at divers dates from May 14, 1892, to June 8, 1893, the plaintiff sold and delivered to defendant goods, wares and merchandise to the amount of $362.68; that payments thereon were made to the amount of $165, and judgment was asked for the balance. In the answer the defendant denied that any of the goods’ were sold and delivered to her, and alleged that the sale, if any, was to Martin Gambee, her husband. During the progress of the tidal the defendant was allowed to amend her answer by setting up payment. The referee found a sale and delivery of the goods to the defendant, and that payments had been made to the extent of $199.50 and ordered judgment against defendant for the balance.
    The specific acts of the witness "Wilson, which the defendant sought to prove by one Babcock, who was bookkeeper for the plaintiff, were in substance as follows:
    The defendant asked Babcock whether, as bookkeeper for the plaintiff, he had discovered that the amounts turned in by "Wilson (who was a salesman for the plaintiff), and reported by "Wilson as received from customers, were smaller than the sums which he had received from customers ; whether "Wilson had made false reports as to such matters; and whether "Wilson had stated to Babcock that he had used moneys of the plaintiff, and that he expected at some future time to make the moneys good.
    Answers to these questions were excluded.

      Edgar ET. Wilson, for the appellant.

      M. E. Driscoll, for the respondent.
   MekwiN, J.:

The main issue at the trial was whether the sale was to the defendant or to her husband, Martin Gambee. Upon this subject the appellant claims that the finding of the referee is against the weight of the evidence. In this view we have examined the evidence and are of the opinion that the finding of the referee on the question of the sale and delivery should not be disturbed.

Our attention is called to a number of exceptions to rulings upon questions of evidence. The defendant owned a liotei; sbe and her busband lived in it; slie looted after the kitchen and cooking and lie looked after the outside work, the bar and billiard room, and the license was in his name. He had previously bought goods of the plaintiff, or of a firm of which the plaintiff was a member, that had not been fully paid for. The defendant offered to show-that in the years 1892 and 1893 other parties had sold and shipped to the husband liquors and cigars and looked' to him for pay. This being objected to was properly excluded. The transactions of the husband with other parties did not affect the plaintiff.

The defendant offered to prove by one Goodman that the plaintiff, without his consent or authority, shipped to his (Goodman’s) wife liquors which were ordered by him. The time was not stated and Goodman lived in a different place. This offer was excluded. We see no good reason for admitting the evidence. The issue here was whether the defendant ordered the goods.

One Wilson was the main witness of the plaintiff in regard to five of the six sales of goods in controversy. The defendant claims that she was unduly restricted, by the rulings of the referee, in her efforts to discredit the testimony of Wilson. The plaintiff in making out his case called Wilson as a witness, and he was then cross-examined at length and his cross-examination was apparently completed. After the plaintiff rested his case, and after the defendant introduced most of her evidence on the main issue, the defendant applied for and obtained leave to amend the answer by setting up full payment of plaintiff’s claim. Then, apparently at an adjourned day, the defendant called Wilson as a witness and examined him on the subject of payments made to him as the agent of the plaintiff, and showed by him that a number had been made that were not credited in full or at all by the plaintiff in the complaint. After examining Wilson as to the payments, no other witness being called by the defendant on the subject, the counsel for the defendant, for the purpose of discrediting the testimony given by Wilson on the former hearing, offered to show by him that while he was acting for plaintiff he made statements to one Goodman that contradicted his evidence while upon the stand in regard to Mr. Gainbee and the account in this action. This was objected to as improper, irrelevant, immaterial and hearsay and as reopening the case, and, also, tliat tlie witness is now called by the defendant and she cannot cross-examine her own witness as to statements made by bim to somebody else for tlie purpose of discrediting liiin. The objections were sustained, the court saying that specific questions might be put and then ruled upon. The following questions were then asked: “ Q. Did you say to Mr. Goodman in a conversation that you had with him in reference to this account of Mr. Gambee’s, that you did not know what you were going to do with Mart (meaning Martin Gambee); that you only got barely enough to pay your livery and a little over ? ” “ Did you say to him upon an occasion and in reference to this account, before the commencement of this action and subsequent to the time of the conversation concerning which the last question was put, that Martin was doing better; that he had paid tlie account down pretty well ? ” These were objected to as improper and the objections were sustained and exceptions were taken.

The defendant, by calling ’Wilson as to the payments, made him her own witness as to the new matter. (People ex rel. Phelps v. Oyer & Term., County of N. Y., 83 N. Y. 459.) Whether this precluded her from discrediting him as to his former evidence is not entirely clear. (People v. Moore, 15 Wend. 419; Mather v. Parsons, 32 Hun, 338, 343; Sawrey v. Murrell, 2 Hayw. [N. C.] 397; Barker v. Bell, 46 Ala. 216, cited in Starkie on Ev. [10th ed.] 244.) Assuming it did not, then the examination as to the statements of the witness is to be deemed cross-examination, and it was an effort to recross-examine after the witness had been once fully cross-examined and dismissed and upon another day. Ordinarily, the extent of such cross-examination is discretionary. (Van Cort v. Van Cort, 4 Edw. Ch. m. p. 621; Sheldon v. Wood, 2 Bosw. 269; Knight v. Cunnington, 6 Hun, 100.) The statements in tlie questions put, if made by Wilson, were not necessarily inconsistent with Ms testimony that the orders were given by the defendant. Con-cededly all the payments were made by tlie husband, and he was the manager of the concern. Under the circumstances presented, we are of the opinion that no error was committed.

A number of disparaging questions were put to the witness as to his relations with the plaintiff in regard to the misappropiiation of moneys collected by him as agent, and these were properly excluded-within the rule laid down in Prest., Directors, etc., v. Loomis (32 N. Y. 127). A witness was asked whether "Wilson ever stated to him that he had straightened up or fixed up with the plaintiff, and had given him a bond for the money he had collected or was to collect. This was not important and was properly excluded. The defendant sought to prove by one Babcock certain specific acts of Wilson that, as defendant claimed, affected his credibility. The case of Conley v. Meeker (85 N. Y. 618) sustains the ruling of the referee excluding the evidence. The defendant sought to prove the general character of Wilson, but as the objection to it by the plaintiff seems to have been waived before the witness left the stand, the defendant was not prejudiced by the ruling of the referee on the subject.

We find no good reason for disturbing the judgment, and it should be affirmed.

PIardiN, P. J"., and MartiN, J"., concurred.

Judgment affirmed, with costs.


text:
    Jacob L. Everitt, Appellant, v. Walter W. Park, Respondent.

      Attachment — affidavits liberally construed — statement as to defendants non-residence — practice on reviewing an order vacating an attachment.

    Upon a motion to vacate an attachment, made upon the same papers upon which the attachment was granted, the affidavits should he liberally construed, and all iair inferences to be drawn from them should he conceded as true for the purposes of the motion.
    An affidavit, to procure an attachment in an action, made by the plaintiff, first stated 'positively that the defendant was not a resident of the State of New York, and that he resided in Forest City in the State of Pennsylvania; it then alleged that the deponent slated the residence of the defendant upon information which he had received from his own attorney, and which the deponent believed, to the effect that the attorney had seen on file in the Chemung county clerk’s office a chattel mortgage in which the defendant was named a mortgagee, and in which his residence was stated to he at'Forest City, Pa. The attorney made a similar affidavit in confirmation of such statement, and a copy of the chattel mortgage was annexed to the papers.
    The attachment was granted by a county judge, who subsequently vacated it without notice to the plaintiff. The plaintiff made an application at Special Term to vacate tlie latter order, which, was denied upon the ground that the papers did not show that the defendant was a non-resident.

      Held, that the papers made out a prima facie case of non-residence;
    That the practice of the plaintiff in reviewing the order was correct, and that the appellate court had power to review the direction or decision of the county judge in vacating his own order without notice to the plaintiff.
    Appeal by the plaintiff, Jacob L. Everitt, from so muc'h of an order of tlie Supreme Court, made at tlie Chemung Special Term and entered in tlie office of the clerk of the county of Chemung on the 12th day of March, 1894, as denied a motion to vacate an order of the county judge of Chemung county which vacated a warrant of attachment granted by him, the denial in the Supreme Court being put upon the ground, as stated in its order, that the papers on which the attachment was granted did not show that the defendant was a non-resident of the State of New York.
    On the 14th of February, 1894, the county judge of Chemung county, upon the application of the plaintiff, granted an attachment against the property of the defendant on the ground that he was a non-resident. On the 2d of March, 1894, the county judge, on the application of the defendant, without notice to plaintiff, vacated the attachment on tlie grounds, as stated in the order, that the papers on which the attachment was granted did not show that'the defendant was a non-resident, and that the plaintiff could not, under section 1913 of the Code, maintain an action on the judgment set out in the complaint. The plaintiff thereupon, on notice to the defendant, moved at Special Term to vacate tlie order of the county judge, and on such motion tlie order appealed from was made.

      Youmans da Moss, for tlie appellant.

      Baxter <& Gibson, for tlie respondent.
   MekwiN, J.:

It is not claimed by the defendant that the ground secondly stated in the order of the county judge is available. The only question then is as to the sufficiency of tlie affidavits on which the attachment was granted on the subject of the non-residence of the defendant. It was stated in the affidavit of the plaintiff as follows: “ Deponent further says that the defendant, Walter W. Park, is not a resident of the State of New York; and that lie resides at Forest City, in the State of Pennsylvania. Deponent states the residence of said defendant, upon information received by deponent, from the following sources: Deponent saw said Walter W. Park in Elmira, New York, about a week ago, and deponent is informed by Roswell R. Moss, one of his attorneys in this action, that he, said Moss, has seen on file in the Chemung County Clerk’s office a chattel mortgage, recently given by Marrianna Park to said Walter W. Park, dated February 12, 1894, wherein the residence of said Walter W. Park is stated as Forest City, Pa., and which said mortgage bears upon it the assignment thereof to Lewis M. Smith, dated February 12, 1894. Upon which information, and which deponent believes, he believes said Walter W. Park to reside at Forest City, Pa.” This affidavit is followed by the affidavit of Mr. Moss, who says : That the information stated in the annexed affidavit of the plaintiff as having been given to him by the deponent,- the deponent did give to said plaintiff, and stated the same to plaintiff truthfully. The deponent has seen on file in the office of the Chemung County Clerk such a chattel mortgage, which bears upon it such an indorsement as stated in the said affidavit of the plaintiff, a true copy of which said chattel mortgage with said indorsement and assignment thereon is hereto attached.” The mortgage is dated February 12,1894, and its execution is acknowledged by the mortgagor the same day before a notary public in the city of Elmira. The mortgagee is “ Walter Park of Forest City, Penn’a,” and the mortgage is given to secure the payment of a note of $300 payable at an Elmira bank. The assignment is dated the same day as the mortgage and is from Walter Park to Lewis M. Smith, and is witnessed by the notary public. It contains a guaranty of the payment of the mortgage.

The case of Steele v. Raphael (37 N. Y. St. Repr. 623) is quite in point There an order denying a motion to vacate an attachment was affirmed by the General Term of the first department, and in the opinion it is said : “ As to the allegations in respect to non-residence the affidavit is sufficient. The allegation is positive as to tin? non-residence of the defendants. It is true that their place of residence outside of the State of New York is stated on information and belief, and the sources of information and grounds of belief are not given, and if the jurisdiction of the court depended upon the estab-lisliment of that fact the affidavit is undoubtedly defective ; hut it does not matter where they reside outside of the State, the court has jurisdiction.” The case of Andrews v. Borland (10 N. Y. St. Repr. 396), decided by the General Term of the second department, is to the same effect.

It does not seem to be claimed b/ the respondent that an absolute statement of non-residence would not be sufficient, but the argument is that, taking the whole affidavit together, it was not the intention to state the non-residence absolutely, but only on information and belief, in the same way as the place of residence is stated. This argument would seemingly have as well applied to the two cases above cited as to this. Those cases are authority against it.

The affidavit on which an attachment is granted should present a prima facie case. (Lee v. La Compagnie Universelle, etc., 2 N. Y. St. Repr. 612.) On a motion to vacate on the same papers, the averments of fact contained in the affidavits and the fair inferences to be drawn therefrom are to be deemed to be conceded as true for the purposes of the motion. (Phillips v. Wortendyke, 31 Hun, 192.) In Steuben County Bank v. Alberger (78 N. Y. 252, 258) it is said that if any fact is shown which tends to show the existence of the statutory conditions the judge would acquire jurisdiction and the attachment should ,be sustained. In Leiser v. Rosman (32 N. Y. St. Repr. 739, 741) it is said: “ No reason is perceived why uncontradicted affidavits upon which an attachment is granted should not be construed with reasonable liberality.”

In the present case we are of the opinion that the affidavits pre- . sented a prima fade case of non-residence.

But it is suggested that the county judge, on the application of the defendant to vacate the attachment, said in substance that the essential fact was not shown to his satisfaction, and that his conclusion cannot be reviewed any more than it could had he in the first instance refused the attachment on that ground. Whatever discretion the county judge had in the matter, he exercised in favor of the plaintiff when he granted the attachment. The plaintiff acted upon this, went on and had a levy made. It would not be right to say that this discretion could, on the application of defendant and without notice to plaintiff, be recalled without giving the plaintiff a remedy. The defendant moved, as he had a right to do under section 683 of the Code, to have the attachment vacated. Whether it was properly vacated should be determined according to the rules ordinarily applicable on motions to vacate attachments. The proper practice was followed by the plaintiff in order to have a review of the order. (People ex rel. Schlehr v. Common Council, 30 Hun, 636.)

The foregoing considerations lead to a reversal of the order of the Special Term, and the granting of the motion to vacate the order of the county judge of date March 2, 1891.

Harden, P. J., and Hartes, J., concurred.

Order of Special Term so far as appealed from reversed, with ten dollars costs and disbursements, and motion to vacate the order of the county judge filed March 2, 1894, granted, with ten dollars costs.


author: MerwiN, J.:

text:
    Roger B. Williams, Respondent, v. Homer W. Rightmyer, Defendant. Eugene Terry, as Assignee for the Benefit of Creditors of Homer W. Rightmyer, Appellant.

      Attachment — sufficiency of the affidamit — altennative or disjunctive statements.

    Where an affidavit states sufficient grounds for the granting of a warrant of attachment, it is not vitiated hy the fact that a statement, insufficient to support an attachment, is conjunctively attached.
    An allegation contained in such an affidavit to the effect that the defendant is a natural person and a resident of the State of Now York, and keeps himself concealed therein with intent to defraud his creditors and to avoid the service of a summons, is a statement sufficient to justify an attachment.
    An allegation that the defendant has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, his property with intent to defraud his creditors, being in the disjunctive, is insufficient to support an attachment.
    Appeal by Eugene Terry, as assignee for the benefit of creditors of Homer W. Rigbtmyer, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Tompkins on the 6th day of February, 1895, denying his ¡notion to vacate an attachment issued against the property of the defendant, Homer W. Rightmyer.

      William JELazlitt Smith, for tbe appellant.

      JWewmcm c& Blood, for the respondent.
   MerwiN, J.:

On the 21st of November, 1894, on the application of the plaintiff, an attachment was issued by the county judge of Tompkins •county against the property of the defendant. On the 23d of November, 1894, the defendant executed a general assignment to the appellant Terry. This is dated November 19, 1894. Thereafter, upon notice dated December 29, 1894, the assignee moved at Special Term upon affidavits to vacate the attachment. In opposition to the motion additional affidavits were presented on the part ■of the plaintiff and the assignee was allowed to put in replying •affidavits.

Upon this appeal it is claimed, (1) that the grounds upon which the attachment was issued are not stated therein as required by the Code of Civil Procedure (§ 641), in that they are stated in the disjunctive; and (2) that upon the facts the attachment should be vacated.

In the warrant of attachment it is stated that the defendant is a natural person and a resident of the State, and keeps himself concealed therein within intent to defraud his creditors and to avoid •the service of a summons, and that the defendant has assigned, disposed or secreted, or is about to assign, dispose of or secrete, his prop-crty with intent to defraud his creditors.”

The statement that the defendant has assigned, disposed or .secreted, or is about to assign, dispose of or secrete, his property with intent to defraud his creditors,” is not a proper statement of any ground within the case of Cronin v. Crooks (143 N. Y. 352). The statement, however, that the defendant is a resident of the State and “ keeps himself concealed therein with intent to defraud Lis creditors and to avoid the service of a summons,” is a proper statement of a sufficient ground within the rule laid down in Garson v. Brumberg (75 Hun, 336). This is not vitiated by the fact that an insufficient statement is conjunctively attached.

Upon the facts the question was whether, at the time the attachment was issued, the defendant kept himself concealed within the State with intent to avoid the service of a summons. (Code, § 636.) That this was satisfactorily shown was the conclusion reached by the Special Term after each party had full opportunity to present his case. This conclusion should not, we think, be disturbed.

Hardin, P. J., and Martin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: MeewiN, J.:

text:
    In the Matter of the Last Will and Testament of Jane G. Campbell, Deceased. Henrietta L. Butler, Appellant; Trustees of the Parochial Fund of the Protestant Episcopal Church in the Diocese of Western New York, Respondent.

      Will — an issue is essential to the surrogates power to construe it at the time of probate — -a party having no interest under the will may not ash for a construction— consent does not give jurisdiction.

    Under section 2624 of the Code of Civil Procedure, providing that if a party expressly puts in issue before a surrogate the validity, construction or effect of any disposition of personal property contained in the will of a resident of the State of New York, executed within the State, the surrogate must determine the question upon rendering a decree, a surrogate has no authority to construe a will or to adjudicate upon its terms upon the motion of a party having no interest under the will.
    The niece of a testatrix, having no interest under her will, filed objections to its probate, and subsequently, without a contest, the will was admitted to probate. Upon the motion of the niece the surrogate inserted in the decree of probate an adjudication that a certain trust created by the will was valid, but filed no decision containing a separate statement of the facts found and his conclusions of law.
    Upon appeal from such decree by the residuary legatee,

      Held, that no issue was made, and that the surrogate was without jurisdiction to adjudicate in regard to the trust.
    A so-called case was made after the appeal was; taken, and upon its settlement the appellant presented to the surrogate certain requests to find.

      Held, that this act should not, under the circumstances, be deemed a consent by the appellant that the surrogate might construe the will, and that even if it could be so regarded, her consent would not-confer jurisdiction.
    Appeal by Henrietta L. Butler, as sole residuary legatee under tbe will of Jane G-. Campbell, deceased, from that portion of a decree of the Surrogate’s Court of Schuyler county, entered in said court on the 12th day of March, 1891, which decreed “ that the provisions in said will giving to Henrietta L. Butler the sum of $15,000 in trust, and the subsequent direction for the disposition thereof, is legal and valid.”
    The person who filed objections to the probate of the will, Elizabeth 0. Foster, was a niece of the testatrix.

      M. J. Simclerlin, for the appellant.

      A. P. Rose, for the respondent.
   MeewiN, J.:

On the 19th of January, 1891, Jane G. Campbell died leaving as her sole heirs and next of kin Henrietta L. Butler and Elizabeth C. Foster, and leaving a last will and testament bearing date June 27, 1889. In and by this will provision was made for the payment of debts and a number of legacies, and then came the following items :

“ Item: I give and bequeath to my niece, Henrietta L. Butler, the sum of fifteen thousand dollars in trust nevertheless, said sum to be invested by her as she may think best and the proceeds thereof to be used for the support of a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Oayuta Lake as often as may be convenient, and for such other jmrposes in keeping up the Church services as she may think advisable, and at the death of the said Henrietta L. Butler the said sum of fifteen thousand dollars shall be paid to the trustees of the Parochial Fund of the Protestant Episcopal Church in the Diocese of Western New York, to be held by them, and the income therefrom used for paying a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Oayuta Lake as often as convenient, and to keep up and in good repair the said Lawrence Chapel and cemetery at Oayuta Lake.
“ Item: All the rest and residue of my property, both real and personal, of every description, I give, devise and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee, and should any legacy or devise herein lapse or be held by any competent court to be invalid, then the part of my estate included therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all my property.”

On the 23d of January, 1891, George H. Butler and Henrietta L. Butler, the executors named in the will, filed with the surrogate of Schuyler county their petition in the ordinary form for the proof of the will. A citation was issued, returnable February 24, 1891, which was served on Mrs. Foster February fifteenth. On the return day the executors and petitioners appeared in person, and Mrs. Foster in person and by counsel, and asked for time to answer. This was apparently granted and the matter adjourned to March 12, 1891. On the 5th of March, 1891, Mrs. Foster, by her attorney, filed an unverified answer in which she stated that she appeared and contested the probater of the will on four grounds: First, that the decedent was not a resident of Schuyler county and the Surrogate’s Court of that county had ,no jurisdiction. -Second, that the will was not properly executed. Third, “ she alleges and charges that the clause or provision in said will giving to Henrietta L. Butler the sum of fifteen thousand dollars in trust, and the subsequent direction for the disposition thereof, are illegal and void.” Fourth, that the will was procured by undue influence and was void Upon the adjourned day the petitioners appeared, and Mrs. Foster appeared by counsel, and the formal deposition of the subscribing witnesses was taken. There appears to have been no contest over the probate. Upon the same day the decree admitting the will to probate was entered. In this, after that part by which the will is admitted to probate, there is a clause, purporting to be made on motion of the counsel for Mrs. Foster, by which “it is further adjudged that the provisions in said will giving to Henrietta L. Butler the sum of fifteen thousand dollars in trust, and the subsequent direction for the disposition thereof, is legal and valid.”

It is claimed by the appellant that the surrogate had no right to make any adjudication affecting her rights as residuary legatee; that there was no issue under the provisions of section 2624 of the Code that authorized the surrogate to construe the will. That section is as follows:

“ 2624. But if a party expressly puts in issue before the surrogate the validity, construction or effect of any disposition of personal property contained in the will of a resident of the State, executed within the State, the surrogate must determine the question, upon rendering a decree, unless the decree refuses to admit the will to probate, by reason of a. failure to prove any of tbe matters specified in tbe last section ”

Mrs. Foster, upon whose motion the adjudication in question was made, bad no interest under tbe will. If tbe trust for any reason was invalid, she was not affected, for it is expressly provided that if any legacy is invalid, it shall go to the residuary legatee. Nor did Mrs. Foster have any interest, so far as it appears, in sustaining tbe trust. A case is, therefore, presented where tbe court upon motion of a party having no interest in tbe matter assumes to construe and adjudicate upon tbe terms of tbe will. We are of tbe opinion that section 2624, above cited, confers no authority for this and that no issue within tbe meaning of that section was before the surrogate. (Jones v. Hamersley, 4 Dem. 427.)

But it is said that tbe appellant consented that tbe surrogate might construe tbe will. Consent would not confer jurisdiction. (Matter of Will of Walker, 136 N. Y. 20, 29.) There was certainly in the present case no express consent, and it should not, I think, be inferred. The allegation of Mrs. Foster as to the trust was put forward' as one of the grounds for contesting the probate, and when the contest was in substance abandoned and the will admitted to probate, it might well have been inferred by the residuary legatee that all action or attempted action on the part of Mrs. Foster would be ended and that the surrogate would not be called on in her behalf to make any order about it. The proceeding was not treated as a trial of a question of fact under section 2545 of the Code. No decision was filed containing a separate statement of the facts found and the conclusions of law. If the case was not a trial under section 2545, it would not seem to be necessary for the appellant to file exceptions to the provisions of the decree in order to take advantage of its invalidity. If the subject of the construction of the will was not properly before the surrogate, that defect was not waived by the appellant by presenting requests on the settlement of a so-called case after the appeal was taken. It is not clear that there was any authority for presenting requests, or for making a case, .or that any was in fact made. Attaching records together and calling the bundle a case does not make it one.

Upon the points on either side the question as to the validity of the trust is discussed, but on each side one or more facts are assumed to exist that are quite material to the views of either counsel and that do not appear in the record before us. We have no right to go outside of the record for the facts, and it is quite apparent that the question in controversy cannot be properly determined as the record here stands.

The decree so far as appealed from should, we think, be reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate, and he had no authority to act upon it.

Hardin, P. J., and Martin, J., concurred.

Decree of Surrogate’s Court so far as appealed from reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate. Costs of the appeal to the appellant payable from the estate.


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    Hanford M. Swan, Appellant, v. George W. Morgan, Individually and as Administrator, etc., of Mary L. Morgan, Deceased, and Jennie C. Morgan, Respondents.

      Testimony as to a transaction with a decedent — declarations of a decedent against her own interest — hea/rsay evidence — declarations of a debtor — when admissible inf amor of Ms grantee.

    An action was brought by a judgment creditor of Mary L. Morgan, since deceased, to set aside certain transfers made by her to her daughter, Jennie 0. Morgan, on the ground that they had been made in fraud of creditors. The coui-t, upon the trial, found that the transfers were made to secure moneys given to Mary L. Morgan by her mother for Jennie C. Morgan, and that there was no fraud in the transaction. Upon the-trial, George L. Morgan, the father of Jennie 0. Morgan, and the administrator of the estate of Mary L. Morgan, testified, under objection, that about the time when Mary L. Morgan received the money for her daughter, and long before the plaintiff’s debt was created, she stated that she held the money for her daughter Jennie, and that she was indebted to her for it.
    Upon an appeal from the judgment in favor of the defendants,

      Held, that the .defendant Jennie did not hold or claim under her father, and that he was not testifying in his own behalf or interest, and that the testimony was admissible;

      That hearsay evidence would be allowed in the case of declarations and entries made by persons since deceased, which at the time they were made were against the interests of the parties making them;
    That declarations of a debtor prior to the alleged inception of a fraud are admissible in favor of the grantee.
    Appeal by the plaintiff, Hanford M. Swan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schuyler on the 10th day of July, 1893, upon the decision of the court dismissing the complaint upon the merits, rendered after a trial at the Schuyler Special Term.

      James L. Baker, for the appellant.

      G. II. JEverts, for the respondents.
   MeewiN, J.:

On the 3d day of August, 1890, Mary L. Morgan died intestate, and on December 30, 1890, the defendant George W. Morgan, her husband, was duly appointed administrator of her estate. In July,, 1889, she became indebted to plaintiff, and on the 21st of December, 1891, the plaintiff recovered a judgment on such indebtedness, against George "W. Morgan as administrator. This action was commenced in May, 1892, against George W. Morgan, individually and as administrator, and against Jennie C. Morgan. Its object is to set. aside, as fraudulent and void as to creditors, a conveyance of certain real estate from Mary L. Morgan to the defendant Jennie O. Morgan, dated November 19, 1889, and recorded June 28, 1890, and also a bill of sale or assignment dated June 24, 1890, from Mary L„ Morgan to said J ennie, purporting to cover all the personal property of the said Mary. It was alleged that these transfers were without, consideration, and were made with the intent to defraud the plaintiff out of his debt.

It was found by the Special Term that these transfers were made to secure to the defendant Jennie “the payment of a sum which exceeded the value of the interest of Mary L. Morgan in both the real and personal property mentioned, for money which had been delivered to Mary L. Morgan by her mother for her daughter, the defendant Jennie C. Morgan, and which justly' belonged to her,” and that they were not, either of them, made with an intent to hinder, delay, cheat or defraud the plaintiff or any of the creditors of Mary L. Morgan. These findings are challenged by the appellant, and the main question in the case is whether the evidence is sufficient to sustain them. '

It appears that before the trial the real property had been sold upon foreclosure of prior mortgages, and did not bring enough to pay the mortgages. The bill of sale or assignment covered a quantity of book accounts and some chattels. There was evidence that the accounts were uncollectible, and that the interest of the decedent in the chattels was of about the value of $100. There was evidence tending to show that the decedent owed her daughter several hundred dollars.

A careful examination of the evidence leads us to the conclusion that it is sufficient to sustain the findings complained of. They rest largely on the testimony of George W. Morgan, and his credibility was a matter that the trial court had better opportunity to determine than the ajapellate court can have by simply reading the evidence.

It is claimed by the appellant that George W. Morgan was improperly allowed to testify as to statements of the decedent. The objection was a general one “ as to any conversation or any statement that this witness gives from the witness’ wife, deceased, as to any amount of money, as hearsay and under section 829.” The defendant Jennie had a right to have the benefit of her father’s evidence. She did not hold from him, and he was not testifying in his own behalf or interest. His legal rights, if any, in the property were the other way.

An exception to the rule, rejecting hearsay evidence, is allowed in the case of declarations and entries made by persons since deceased and against the interest of the persons making them at the time when they were made. (1 Greenl. Ev. § 141.) Within this rule the statements of the decedent against her interest long before this controversy or the debt of plaintiff existed and at or near the time when she received the money, that she held it for her daughter and was indebted to her daughter therefor, were competent. If so, the ruling was not erroneous.

In Bump on Fraudulent Conveyances (2d ed.), 576, it is said that declarations of the debtor prior to the alleged inception of the fraud are admissible in favor of the grantee,” on the question of consideration, citing Dwight v. Brown (9 Conn. 83); Morris Canal & Banking Co. v. Stearns (23 N. J. Eq. 414).

We are of tbe opinion that tbe objection to tbe evidence was properly overruled.

Tbe plaintiff, in bis complaint, alleged that tbe decedent, at tbe time of her death, was tbe owner of -a small piece of land of tbe value of about fifty dollars adjacent to tbe other real estate, and that the defendants had tbe deed thereof, but tbe same was not on record. Tbe plaintiff claimed tbe right to reach this property in this action. It was shown that before tbe death of Mrs. Morgan a deed was executed of such a piece of property running to her, but it was also shown and found by the court that Mrs. Morgan refused to accept tbe deed, and so it was properly held that she acquired no title under tbe deed.

Besides, if she did have the title, tbe plaintiff bad a remedy by proceedings in tbe Surrogate’s Court.

Tbe foregoing considerations lead to an affirmance.

H.ARDIN, P. J., concurred; Mabtin, J., not sitting.

Judgment affirmed, with costs.


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    Simon D. Paddock, Appellant, v. John Barnett and Enoch Nicholson, Respondents.

      Appeal from a Justices Court — ■ amendment of the answer in the County Court — the suffiaiency of a pleading mill not he determined upon a motion for learn to 'seme it.

    "Where an action is begun in a Justice’s Court and a new trial is had in the County Court, the latter court has power to allow the answer to 'he amended hy setting up a separate and additional defense.
    Unless a pleading proposed to he served is clearly had or frivolous, its sufficiency will not he determined on a motion for leave to serve it, hut the other party will he left to his remedy hy demurrer or hy objection taken upon the trial.

      It seems, that where a person has petitioned a hoard of supervisors to refund certain taxes and the application, after a proper hearing, has been denied, such adjudication inures to the benefit of the town assessors and would he a defense to them in an action subsequently brought hy the same person to recover damages for the alleged wrongful assessment against him of the same taxes.

      In sucli an action it is premature for tin? court, upon an application to amend the answer, to decide the question and to hold in terms that the proposed defense is a bar to the plaintiff’s entire cause of action, where it appears that the complaint charges an illegal assessment of taxes in the years 1884 and 1885, while the proceedings before the board of supervisors did not relate to the taxes of 1884, but only to those of 1885 and 1886.
    Appeal by tire plain tiff, Simon D. Paddock, from an order of the 'County Court of Onondaga county, entered in the clerk’s office of said county on the 13tb day of November, 1894, allowing tlie defendants to amend an answer interposed in a Justice’s Court by alleging and setting forth a new and independent defense as follows:
    It is ordered that the motion in behalf of said defendants and respondents be and the same is hereby granted, and that they be allowed to amend their answer herein by alleging and setting up as a further and separate answer and defense to plaintiff’s complaint herein, in substance and in such form as they shall be advised by counsel, so far as pertains to this action and the facts involved therein, the following facts and allegations contained in the said (iffidavit of Enoch C. Nicholson, viz.:
    (Here follows the matter to be contained in such amended answer.)
    It is further ordered that as a condition of granting this relief said defendants be required, upon serving their answer containing Such amendment and further answer and defense herein {which it is held and decided, states a lar to the plaintiff ’ s right to recover), to pay the plaintiff herein the sum of five dollars, one-half the costs ■of this motion, and also the further sum of twenty dollars, etc.

      Honuor Weston, for the appellant.

      Frank TI. Hiscock, for the respondents.
   MeRwiN, J.:

This action was commenced in a Justice’s Court. The defendants were assessors of the town of Schuyler in the county of Onondaga, and in the years 1884 and 1885, as the plaintiff in his complaint alleged, they assessed him for personal property in that town when in fact, to the defendants’ knowledge, he was not a resident or inhabitant of that town, but resided in the city of Syracuse, and by reason of such assessments he was compelled to pay the taxes for those years, based on such assessments, and be claimed to recover damages for the wrongful act of defendants. The defendants put in a general denial and also set up the Statute of Limitations. The defendants succeeded in the Justice’s Court and the plaintiff appealed to the County Court for a new trial. Thereafter the defendants made a motion in the County Court for leave to amend their answer by setting up as an additional and separate defense an adjudication by the board of supervisors of Onondaga county of the matter in controversy, upon a petition by plaintiff to have the taxes refunded, which adjudication is alleged to have been made after hearing the plaintiff upon the one side, and the defendants upon the other? upon the question of the residence of the plaintiff and the legality of the tax, and after considering all the facts and allegations. It is alleged that the board decided that the taxes in controversy, one or both of them, were legal and denied the plaintiff’s petition to have them refunded. In granting the motiou for leave to amend, the order appealed from was made. It gives the defendants the right to set up as an additional and separate defense the facts and allegations contained in the affidavit of the defendant Nicholson which is set out in the order.

The plaintiff claims that the defendants were guilty of laches in making their motion. "We find, however, no good reason for disturbing the discretionary action of the County Court on that subject. That matter was undoubtedly in view when the terms upon which the amendment was granted were fixed. The power of the County Court to grant the amendment is well settled. (Code, § 3071; Simpson v. Rome, W & O. R. R. Co., 48 Hun, 113; Cramer v. Lovejoy, 41 id. 582.)

In the order of the County Court there is a clause by which it is, in terms, held and decided that the defense sought to be set up states a bar to the plaintiff’s right to recover.

By the statute under which the board acted (§ 5 of chap. 855 of the Laws of 1869, as amended by chap. 32 6of the Laws of 1885) it was authorized to ‘‘refund to any person the amount collected from him of any tax illegally or improperly assessed or levied.” This would seem to give the board the right to determine whether the tax was illegal (Matter of N. Y. Catholic Protectory, 77 N. Y. 342, 345; Matter of Buffalo Mut. Gas Light Co., 144 id. 228, 232), and to that end determine tbe question of residence. Tbe act of 1869, as amended by chapter 695 of 1871, was under consideration in tbe case in 77 N. Y., and tlie power there construed was substantially tbe same as that conferred on the hoard of supervisors by tbe amendment in 1885. If tbe board bad jurisdiction and tlie matter was determined by it after a full bearing, there is authority for the proposition that the determination is conclusive upon the claimant and on succeeding boards. (Osterhoudt v. Rigney, 98 N. Y. 222, 234; People ex rel. Brown v. Supervisors, 3 How. Pr. [N. S.] 241.) "Whether or not the determination inures to the benefit of the assessors is a question in more doubt. Tbe assessors were certainly interested parties, they were heard in the matter, they represented in a certain way the public which was the party in interest against the plaintiff, and they to a certain degree acted for the public in making the assessment. There is at. le.ast color for the proposition that the action of the board, assuming there was a full and fair consideration on the merits, should inure to the benefit of the assessors. (Ashton v. City of Rochester, 133 N. Y. 187, 193; People ex rel. Hatzel v. Hall, 80 id. 117; Jay v. DeGroot, 2 Hun, 205; Lyman v. Faris, 53 Iowa, 498.)

This question, however, need not, and should not, be determined here. Ordinarily, unless the proposed pleading is clearly bad or frivolous, its sufficiency should not be determined on a motion for leave to serve it, but the other party should be left to his remedy by demurrer or on trial. (Mitchell v. Allen, 25 Hun, 543; Campbell v. Campbell, 23 Abb. N. C. 187; 1 Rumsey’s Pr. 287.) This rule should, we think, be applied here.

There is another objection to the adjudication in the order, and that is that it, is too broad as it assumes to decide that the proposed defense is a bar to the entire cause of action of the plaintiff. The plaintiff’s cause of action relates to tbe tax and assessment for the year 1884 as well as that of 1885. The proposed defense as outlined in the affidavit of Nicholson refers to the tax and assessment for the years 1885 and 1886, and not to those of 1884. So that the defense proposed and allowed to be'put in would seem to be only a partial one.

The order of the County Court should be modified by striking out the clause which decided that the proposed defense states a bar to tbe plaintiff’s right of recovery and as so modified should be affirmed.

Hardin, P. J.„ and Martin, J., concurred.

Order modified by striking out the clause that decides that the proposed defense is a bar to plaintiff’s right to recover, and as so modified, affirmed, without costs of appeal to either party.


author: MeRwiN, J. :■

text:
    George H. Spring, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Bight of a railroad corporation to maintain a private nuisance — express statutory authority to do the precise act must he shown.

    The statutory authority which will sanction the infliction hy a railroad corporation of an injury to private property, without the consent of the owner, or the making of compensation to him therefor, must he express, or must he given hy clear implication from the powers expressly conferred, so that it can fairly he said that the Legislature contemplated the doing of the very act which caused the injury.
    A railroad corporation has a right to acquire land hy purchase for the aecommo-datiou of its business, hut it must secure such a location as will enable it to conduct its operations without violating the rights of others.
    In an action brought to restrain the defendant, a railroad corporation, from using a large coal pocket opposite the plaintiff’s premises and to recover damages caused thereby to the rental value of such premises, it appeared that the structure was distant about fifty-seven feet from the plaintiff’s premises; that it was the largest kind in use, and that from sixty to seventy engines were coaled there every day with hard and soft coal; that it was-near a closely populated section of a city, and that the filling of the bins and the coaling of the engines produced gases, smoke, soot and coal dust which settled upon the plaintiff’s premises and damaged furniture and clothing. The defendant was a foreign corporation and operated its road as lessee of a railroad corporation incorporated under the laws of the State of New York.
    Upon an appeal from a judgment entered upon the report of a referee who found that the structure in question constituted a private nuisance as to the plaintiff,

      Held, that the franchise under which the corporation operated the road gave it. no express right to maintain this structure, and that the facts justified the conclusion of the referee.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the county of Chemung on the 10th day of September, 1894, upon the report of a referee.

      Iióbert T. Turner, for the appellant.

      Judson A. Gibson, for the respondent.
   MeRwiN, J. :■

The plaintiff in the year 1890 was and still is the owner and in possession of a lot, with three dwelling houses thereon, on the east side of Baldwin street in the city of Elmira. About December 1, 1890, the defendant, who as owner or lessee operated a railroad that passes through the city of Elmira, erected upon premises owned or 'leased and occupied by it in the city of Elmira and situate opposite to and about fifty-seven feet distant from the plaintiff’s premises, <coal bins or pockets for the use of its road and has ever since maintained and used them. It is found that the structure containing the coal bins or pockets is of the largest kind used by trunk line railroads in the State for such purposes ; is 650 feet long, including the incline trestle leading thereto, and contains nine pockets, and is in constant use by defendant for storing hard and soft coal in the bins and coaling its engines therefrom to the number of sixty or seventy engines per day; that the structure is within 300 or 350 feet from a very closely populated portion of the city of Elmira, and the premises on which the structure is situated are immediately opposite a portion of the city which has been all laid out into city streets, blocks and building lots suitable for dwelling houses; that for the purpose of supplying the coal bins with coal, locomotive engines of the defendant using soft or bituminous coal draw cars heavily loaded with soft and hard coal up the steep incline leading from the railroad tracks into the bins, into which bins or pockets the contents of the cars are thrown; that now and ever since the erection of the structure, there necessarily is being and has been emitted from defendant’s engines, using the bins, hurtful and offensive gases, sparks, smoke, soot and cinders, and from the coal taken from and put in the bins, coal dust and dirt; that the gases, sparks, smoke, soot, cinders, coal dust and dirt, have been and are being borne by the wind upon and settle down upon and into the dwelling bouse of the plaintiff, injuring tlie furniture and clothing therein, rendering the same unwholesome, uncomfortable and unsuitable as a habitation; that on account of sucli gases, sparks, smoke, soot, cinders, coal dust and dirt, coining upon and into the premises of plaintiff, the plaintiff has suffered irreparable injury and the rental value of the premises has been reduced from thirty-one dollars per month to twenty dollars per month; that the injuries to plaintiff’s premises are of constant repetition and will be necessarily continued so long as the structure of defendant shall remain and be used as at present; that on account of the continuous character of such injuries, plaintiff has no adequate redress by actions at law, and that a resort to such actions would lead to a multiplicity of suits.

As conclusions of law it was found:

First. That the structure of defendant mentioned in the complaint, consisting of coal bins or pockets and trestle as at present used, is a private nuisance to plaintiff.

Second. That the defendant, its officers, agents and servants, should be perpetually restrained and enjoined from depositing in and taking from said structure coal in such manner as to set afloat in the air and cast or deposit upon or into the premises of the plaintiff, smoke, soot, cinders, sparks, dust or dirt.

Judgment was accordingly ordered, together with the damages for the loss of rental value of the premises from December 1, 1890, to September 1, 1894, to the amount of $500.

The referee, in effect, finds that the defendant had erected and was maintaining a structure which, as used by it, constituted a private nuisance to the property of the plaintiff. The evidence is, we think, sufficient to sustain the conclusion. But the defendant claims that the right to erect and use this structure in coaling its engines is necessarily and materially incident to the operation of defendant’s railroad, and, therefore, embraced within its franchise, and is not a nuisance, although it may operate as such, and that the plaintiff has no remedy.

The case of Cogswell v. N. Y., N. H. & H. R. R. Co. (103 N. Y. 10) seems to be somewhat in point against that proposition. In that case the defendant erected upon a lot adjoining a dwelling house owned by plaintiff an engine house and coal bins for its road, and used the same in operating it, with results to the adjoining property quite similar to those in the present case. It was held, that the engine house as used was a nuisance; that legislative authority to run its trains over the railroad was not a legislative sanction to the committing of such a nuisance; that an action was maintainable to recover damages and to restrain the nuisance, and that in such action it was no defense that it was necessary for defendant to have its engine house located where it was, or that in the management thereof it exercised all practicable care. It is said that the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can faixly be said that the legislature contemplated the doing of the very act which occasioned the injury.” “ It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others.”

The defendant in the present case is a foreign corporation, and operates and uses the road and structures in question as lessee of the New York, Lackawanna and Western Railway Company, a corporation organized under the provisions of chapter 140 of the Laws of the State of New York, passed April 2, 1850, and the laws amendatory thereof. No special legislative sanction is shown for the structure in question. Prior to its erection in 1890, the defendant used a similar structure, though not so large or convenient, that was located in a place a considerable distance from the plaintiff, and its use did not interfere with the use of plaintiff’s property. The defendant or its lessor had other lands where the new structure might have been placed, though not so convenient.

The doctrine of the Cogswell case was approved in Bohan v. Port Jervis Gas Light Co. (122 N. Y. 21); Hill v. Mayor, etc. (139 id. 5021; Morton v. Mayor, etc. (140 id. 212); and so it was in Booth v. R., W. & O. T. R. R. Co. (140 id. 267,272), cited on the part of the. defendant. In the Booth case a distinction is pointed out between acts and uses of property which are permanent and continuous, and temporary acts resorted to in adapting premises to some lawful use. The question there considered related to the latter class of acts. In Flinn v. N. Y. C. & H. R. R. R. Co. (142 N. Y. 11) the Cogswell case was not questioned, and the issue was unlike tlie one there and here involved. In Pettit v. N. Y. C. & H. R. R. R. Co. (80 Hun, 86) it seems to have been held that the evidence was not sufficient to show that the structure complained of and its use was a nuisance, so that the doctrine of the Morton (140 N. Y. 201) and kindred cases did not apply.

The principle of the Oogswell case should, we think, be applied to the present case. No point is made by the defendant as to the amount of the damages awarded.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.