text:
    WILLIAM M. ENGLISH, Respondent, v. JAMES H. LEE and Others, Appellants, Impleaded with Others, Defendants.

      Mechanic’s lien — relative rights of a contractor ancl sub-contractor — assignment of the lien— bona fide purchaser,
    Wilbur F. Catton, wlio had contracted to do certain carpenter work upon a house of Henry S. Sill, entered into a sub-contract for such work with Lee, Holland & Co. Catton, subsequently, on February 1, 1890, caused a mechanic's lien- to be prepared, which was filed February 3, 1890, and on the same day he assigned all his interest in the lien to one English, to whom he was at the time indebted.
    On the same day, but later in the day, Lee, Holland & Co. filed a lien as sub-contractors.
    A dispute having arisen as to who was entitled to the fund due from Sill to Catton:
    Meld. that the lien of Lee, Holland & Co. was superior to that of English.
    That the statute (Laws of 1885, chap. 342, § 20, as amended by chap. 420 of 1887), expressly postponed the lien of the contractor to that of the sub-contractor, and that English stood in the position of Catton.
    That English, who took the assignment of the lien for a pre-existing debt, was not a bona fide purchaser for value.
    Appeal by the defendants, James H. Lee, Franklin Lee, Nelson Holland and Henry E. Montgomery, from a judgment of the County Court of Erie county, entered, after a trial at the Erie County Court before the court, in the clerk's office of said county on the 2d day of March, 1891, wherein it was, among other things, adjudged that the proceeds of the sale of the premises described in the judgment be paid to the plaintiff to the extent of $413, and that the defendants pay the plaintiff’s costs.

      J. L. Romer, for the appellants.

      F. O. Reolc, for the respondent.
   Dwight, P. J.:

The controversy is between a sub-contractor and an assignee of the contractor as to the superiority of their respective liens on a fund paid into court by the owner of the property against which the liens were filed.

One Oatton was the contractor to do the carpenter work of a house to be erected by the defendant Sill. The contract was substantially performed, and there was unpaid to the contractor thereon on the 1st day of February, 1890, the sum of $430.13. On that day Oatton made and verified the required notice of lien for the sum of $595, which was the amount claimed by him to be unpaid on the contract, and on the same day (February 1), and before the notice was filed or lien acquired, executed, acknowledged and delivered to the plaintiff an instrument which purported to assign to the plaintiff iC all my (his) right, title and interest in and to a certain mechanic’s lien, filed by me in Erie county clerk’s office on the 3rd day of Feb. 1890; said lien being filed by me as contractor for the sum of $595, due from Henry S. Hill, of,” etc. The explanation given of the fact that the assignment anticipated the filing of the lien by two days is, that the first day of February was Saturday, and that the clerk’s office was closed from the noon of that day until Monday morning; but the fact remains that no lien existed at the time the assignment was made, and, therefore, all that passed by the assignment was the right of Oatton to acquire a lien thereafter. Catton’s notice of lien was actually filed, with the assignment attached, at nine o’clock a. m. of February third.

The assignment purports to have been made in consideration of a present payment of money ; but such was not the case. The claim was, in fact, assigned to the plaintiff for collection; the avails to be applied, only as collected, in payment of an antecedent debt due from Oatton to the plaintiff. This is the precise effect of the plaintiff’s own testimony, reiterated several times. There is no evidence to the contrary, and the defendant’s exception to the refusal of the court to find in accordance therewith, viz., that the plaintiff did not part with, anything of value in consideration of the assignment, was well taken.

The defendants, Lee, Holland & Co., were sub-contractors, under a contract with Catton to furnish doors, sash and other wood-work, and did furnish such work and materials to the amount of $842, which remained unpaid on the 3d day of .February, 1890, and on that day, at 2.15 p. m., they duly filed their-notice of lien for that amount.

We can have no doubt that the last mentioned lien was superior to that of the plaintiff. It is impossible that the plaintiff, as assignee of Catton, should acquire any greater rights than those of his assignor. And the lien of the latter is expressly postponed to that of Lee, Holland & Co., by the terms of the statute (Laws of 1885, chap. 342, § 20, as amended by chap. 420 of 1887), which, after defining who are sub-contractors, provides that “ the court, in the judgment, shall direct the amount due sub-contractors and workmen to be paid out of the proceeds of sales in their order of priority as herein provided, before any part of such proceeds are paid to the contractors,” and this is without reference to the time of filing the contractor’s notice of lien. It seems that a portion of the indebtedness due from Catton to the plaintiff was for materials which went into the building on the premises in question; and, so far as that was the case, the plaintiff was, probably, a sub-contractor, and if he had filed notice of lien as such, then, as between himself and Lee, Holland & Co., the question of superiority of lien would have depended on the priority in filing their respective notices. But he did not file a lien as sub-contractor, but relies upon his assignment of Catton’s lien (or right to acquire a lien) as contractor. Doing so, he must stand in the place of his assignor and be content to take what the statute would give to the latter if no assignment had been made. He had no claim to the position of a “ bona fide purchaser for value.” He neither paid nor surrendered anything of value in consideration of the assignment. His own statement is that he took the claim to collect and apply the avails, as collected, inpayment of the debt due to him. No one questions the good faith, in the general sense, of this transfer, but it is familiar law that a transfer made upon such a consideration is not a transfer for value ” in such sense as to prevail over the equities of third persons against the transferror. Here the sub-contractors, Lee, Holland & Oo., were, by the statute, entitled to priority over the contractor Catton, though the notice of lien of the latter was filed some hours before that of the former, and the plaintiff, as assignee of the contractor, was subject to the same equities in favor of the sub-contractors as those which affected his assignor. Upon this ground alone, without considering others suggested, we are clearly of the opinion that the learned County Court erred in awarding the superiority of lien to the plaintiff.

The judgment appealed from should be reversed and a new trial granted.

Maoomber and Lewis, JJ., concurred.

Judgment of County Court of Erie county, appealed from, reversed and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    JONATHAN L. GOULD, Appellant, v. GEORGE G. PATTERSON, Respondent.

      Justice’s Court — title to land — waiver of the right to object — duty of the County Court on appeal to decide the question of title— Code of Civil Procedwre, secs. 2863, 2951, 2955.
    In an action of trespass brought in a Justice’s Court the complaint alleged that the defendant wrongfully entered upon the lands of the plaintiff, who was the owner of the premises, and maliciously cut down trees. The answer, among other things, alleged that the land was owned by the defendant; but the defendant did not, as authorized by sections 2951, 2952 and 2954 of the Code of Civil Procedure, give an undertaking and thereby discontinue the action, nor did it appear by the evidence that the title to real property came in question upon the trial.
    The defendant appealed from the justice’s judgment, which was in favor of the plaintiff, to the County Court, where his appeal was dismissed. The plaintiff also appealed and demanded a new trial, upon which appeal the County Court dismissed the complaint upon the ground that from the plaintiff’s own showing the title to real property was in question and was disputed by the defendant.

      Held, that this was improper.
    That, although the pleadings in the Justice’s Court showed that the title to real property was in question, the defendant, by failing to give an undertaking, had waived his right to object to the jurisdiction of that court.

      That, therefore, as the return of the justice did not show that the question of title was raised by the testimony given in his court, and as the County Court had jurisdiction to try questions of title to real estate, it became the duty of the latter court to hear and decide those questions.
    That the County Court was not, in effect, trying the same case which the justice tried, or was at least trying it upon a different state of the evidence.
    Appeal by the plaintiff Jonathan L. Gould from an order of the Livingston County Court, made on the 15th day of September, 1880, dismissing the complaint, with costs; and from a judgment, entered in the clerk’s office of said county on the 80th day of September, 1890, to the same effect, after a trial by court, a jury having been waived.

      George W. Daggett, for the appellant.

      E. O. Olney, for the respondent.
   Macomber, J.:

This action was trespass, and was brought in a Justice’s Court in the county of Livingston, where, upon a trial by jury, a verdict of five dollars was rendered for the plaintiff, and thereupon, under the statute, treble damages were awarded by the court, and judgment for that sum was accordingly entered, together with live dollars costs. The defendant appealed to the County Court, but such appeal was subsequently dismissed, and nothing arising upon such appeal appears to be material to any question existing in the record before us. The plaintiff also appealed and asked for a new trial in the County Court, which ivas accordingly had. On such trial in the County Court, a jury being waived, the county judge, at the close of the plaintiff’s case, dismissed the complaint upon the ground that under the plaintiff’s own showing title to real'estate came in question, holding, as we infer, that, as in like circumstances, the justice of the peace had not jurisdiction, so, on appeal, the County Court likewise had no jurisdiction to try that issue under section 2956 of the Code of Civil Procedure.

By reference to the pleadings in the Justice’s Court, it appears that the complaint of the plaintiff alleged that in the month of October, 1889, the defendant wrongfully and unlawfully entered upon the lands of the plaintiff, and did then and there, without the leave of the plaintiff, “ who was in possession and the owner of said premises aforesaid,” maliciously cut down a large number of trees, etc. The answer was, first, a general denial; and, secondly, an allegation that the land, upon which were the trees which were alleged to have been cut down and removed by«the defendant, was owned by the defendant; that he had been in possession of the same for upwards of twenty years.

It will thus be seen that there was an allegation of title in the plaintiff made by the complaint, and in the answer a general denial of such title, and- -an affirmative allegation that such title belonged to the defendant.

By section 2863 of the Code.of Civil Procedure (sub. 2), a justice of the peace cannot take cognizance of a civil action “ where the title to real property comes in question, as prescribed in -title 3 of this chapter.”

By sections 2961 and 2952, which is in title 3 above referred to, the defendant may, either with or without other matter of defense, set forth in his answer facts showing that the title to real property will come in .question. The justice must thereupon countersign the answer and deliver it to the plaintiff. The defendant must also deliver to the justice a written undertaking, executed by one or more sureties, approved by the justice, to the effect specially prescribed in the statute.

' Under section 2951, if these two acts are done, that is, a written answer made containing such facts and undertaking given, the action before the justice becomes discontinued.

By section 2955, “ if the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein ; and the defendant is precluded in his defense -from drawing the title in question.”

In the record, before us the defendant failed wholly to avail himself of the provisions of the statutes by which he was enabled, if he saw fit, to oust the justice of jurisdiction, and have the cause tried either in the Supreme Court or the County Court. Failing in that, he waived all objections to the jurisdiction of the justice, and submitted his rights to that tribunal upon the question in issue raised by the pleadings, even though facts were alleged in the pleadings showing that title to real estate did in reality come in question. The question of title to the real estate, upon which the growing trees were, was tendered to the defendant by the complaint. It was so drawn that the defendant could set up his own title in the answer, and, on giving the Requisite security, oust the justice of jurisdiction ; but failing to give the security, he was precluded at the trial from drawing the title in question. Such was the provision of the Code of Procedure. (Adams v. Rivers, 11 Barb., 390.) So much applies, however, .only to the proceedings before the justice.

Upon the trial in the County Court, the plaintiff’s own testimony showed that title to real estate did come in question, and accordingly the county judge, acting apparently under section 2956 of the Code of Civil Procedure, dismissed the case upon the motion of the defendant’s counsel. Section 2956 is as follows : If, however, it appears upon the trial, from the plaintiff’s own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly.” The learned county judge assumed, as we think, erroneously that he was hearing the same case that had been tried before the justice of the peace. But there is contained in the printed record before us the return made to the County Court by the justice of. the peace of the proceedings before him; and from such record it does not appear that the title of real property was in question, and was disputed in that tribunal at the trial. The return, it is true, does not purport to give all of the testimony taken before the justice, nor does it say that it does not contain all of the testimony. The only inference which we can draw from it is, that the trial did proceed before the justice of the peace without the question of title -to real estate being raised by the plaintiff on his own showing, as it well might have been, notwithstanding the issue raised by the pleadings. The defendant at the trial might have relied, and presumably did rely, upon other defenses than that of title; for he seems not to have raised any question, except by his pleadings, which would tend to oust the justice of jurisdiction.

What, then, the important question is, was the duty of the County Court in a case like this appealed from the judgment of the justice for a new trial ? The County Court has jurisdiction to try questions of title to real estate, and could have tried this case had the action originally been brought in that court. The fallacy of the learned counsel for the defendant, in making his application for a non-suit, lay in the assumption which, as above seen, has no existence in the statutes, that the County Court was obliged to dismiss the case if title to real estate appeared upon the trial there, just as though it was acting in the place of the Court of the Justice of the Peace. But we think that upon the return of the justice, which does not show that title to real estate came in question on the trial before him, it was incumbent upon the County Court to hear such evidence as was offered and to pass upon it, notwithstanding any rights or privileges which were secured to the defendant by the provisions of the Code relating to trials of cases before justices of the peace, but which appear to have been waived by his omission to file an undertaking. (Code Civ. Pro., § 2955.) Any other conclusion, as it seems to us, would enable a defendant, where the pleadings showed that title to real estate might come in question before a justice of the peace, to reap all the benefits of the provisions of law for removal of cases without incurring the hazards of giving the undertaking.

If this conclusion is correct, the judgment appealed from should be reversed and a new trial granted.

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

Judgment of the County Court of Livingston county appealed from reversed, and a new trial granted, with costs to abide the event.


author: Dwight, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant and Respondent, v. MAURICE F. DANIHY, Respondent and Appellant.

      Grimes — obscene publication — the matter must appear upon the face of the indictment— a reference to a former count to avoid repetition, proper.

    In an indictment, under section 317 of the Penal Code, relative to obscene publications, it was alleged in one count thereof that Maurice F. Danihy sold an obscene, lewd, lascivious, filthy and indecent newspaper, describing it specifically.
    This count did not, however, set out any portion of the matter complained of.

      Held, that the indictment was demurrable.

      That it must appeal- upon its face that the printed matter was of the character charged.
    That the adjectives, “ lewd, lascivious,” etc., were not facts but conclusions.
    Another count set out the objectionable matter in Ima verba, and was followed by a count which charged Danihy with having the same printed matter in his possession with intent to sell it, and it identified and set out the matter intended by a reference to a preceding count, which was specifically made a part of the count in question.

      l-Ield, that such a reference to the former part of the indictment to obviate a useless repetition was not improper.
    Appeal by the plaintiff, tbe People of tlie State of New York, from so mucli of a judgment of the Monroe County Court of Sessions, entered in the office of the clerk of said county on the 10th day of December, 1891, as sustained and allowed a demurrer upon the part of the defendant to the first, second, third and sixth counts of an indictment for selling an obscene newspaper; and also by the defendant Maurice F. Danihy from so much of said judgment as overruled his demurrer to the fourth and fifth counts thereof.

      George A. Benton, for the People.

      J. Van Voorhis, for the defendant.
   Dwight, P. J.:

The indictment was under section 317 of the Penal Code, relating to obscene publications. It was in six counts, and the defendant demurred to the indictment as a whole, and separately to each count, on the ground that the facts stated in the indictment, and in each count thereof, do not constitute any crime. By the first count the grand jury of the county of Monroe accuse the defendant “ of the crime of selling an obscene newspaper, committed as follows: The said Maurice F. Danihy, at the city of Rochester, in the county of Monroe, on the 27th day of September, in the year of our Lord 1890, at the city and county aforesaid, willfully, unlawfully and maliciously did sell to Abram Rosenberg, and to diverse other persons whose names are to this grand jury unknown, an obscene, lewd, lascivious, filthy and indecent newspaper, commonly known and called ‘Sunday Star,’ which said newspaper and Sunday Star was No. 1 of Yolume 2 of said paper, bearing date Rochester, N. Y., September 28th, 1890, then and there containing stories and articles of an indecent and immoral character, having a tendency to degrade and corrupt the morals of such persons into vffiose hands it might come, contrary to the form of the statute,” etc. The objection to this count, that it does not set out the contents of the newspaper complained of, nor any portion of them, is, we think, well taken. It is a cardinal principle of pleading, in both civil and criminal actions, that the complaint (indictment) shall contain a statement, not merely of the charge sought to be established, but of facts which, if taken to be true, support the charge. The pleading must show on its face — its truth being conceded — that the cause of action exists, or the crime has been committed. It is not enough to allege a conclusion of fact; the facts themselves must be alleged from which the conclusion may be drawn ; and in a case like the present it is not enough to characterize the publication complained of, but the contents of the publication must be set forth in order that it may appear on the face of the pleading that it is of the •character charged.

The rule which has always held in actions of libel, either civil or criminal, is applicable to this case. A complaint or indictment which only charged that the written or printed matter complained of was libelous or defamatory would certainly be bad, not because •of a failure to identify the matter, but because it did not appear on -the face of the pleading that it was libelous or defamatory. And so the two classes of actions or prosecutions have always been classed together for the purposes of this rule; and it has been held, with great strictness, that in all actions, civil and criminal, in which ¡the cause of action or offense consists in the publication of written or printed matter, the words complained of must be set out in the -complaint or indictment. The cases of Bradlaugh & Besant v. The Queen (L. R., 3 Q. B. Div., 607); Commonwealth v. Tarbox (1 Cush., 66); United States v. Bennett (16 Blatch., 338); Commonwealth v. Dejardin (126 Mass., 46), are a few of those industriously collected by the learned county judge, and of which synopses are given in his opinion. They are directly in point, and in effect base the rule on the reasons above considered, and not — as the court seems to have done in the case of The People v. Hallenbeck (52 How. Pr., 502) — on the ground of the necessity of clearly identifying the publication complained of. Identification is, of -course, a requirement of the pleading, but in that respect the count .in question is not at fault. It describes the newspaper by its name, its volume, number, date and place of publication. Moreover, in its allegation of the manner in which the crime was committed, it applies to the publication not only the term “ obscene,” but all the other descriptive terms used by the statute, in the alternative, in defining the crime, viz., “ lewd, lascivious, filthy and indecent; ” and, still further, it describes the newspaper as containing articles and stories of an indecent and immoral character. But, after all, these additions are only amplification of the charge, and not demonstration of its truth, — a conclusion of fact, and not the facts themselves, relied upon to establish the charge made against the defendant.

Three other counts, the second, third and sixth, respectively, charge the defendant with having in possession with intent to sell, offering for sale, and publishing, the same newspaper, described as in the first count, and like that count setting out no portion of its contents. We think the four counts so far mentioned are defective in the respect considered, and that the several demurrers thereto' must be allowed.

On the other hand, the fourth count completely avoids the objection which we have considered, and is liable to no other objection so far as-we observe. It is framed under the same subdivision of section 317 as the first count, but under another specification. The statute, as aj>plicable to it, reads: “A person who sells * * * any * * * printed matter of an indecent character 'x' * * is guilty of misdemeanor.” This count, besides specifying the time when, place where and person to whom the sale is charged to have been made, and a minute description, for the purpose of identification, of the newspaper in which it was printed, sets out in full the “ printed matter of an indecent character” to which the charge relates. It is .no objection to this count that the printed matter in question is. shown to have been printed in a newspaper. It is still “ printed matter,” and, if of an indecent character, is within the prohibition of the statute as much as if printed in a broad-side or hand-bill. As pointed out by the learned county judge, the language of the specification in the statute is not “ or any other printed matter,” etc. On the contrary, it is very plain that the language “or any printed matter of an indecent character ” is intended to be very general and to .include everything coming within the description, whether otherwise described in previous specifications or hot.

Tlie fiftli count charges the defendant with having the same printed matter in possession with intent to sell, and it identifies and sets out the matter intended by a reference to the fourth count, which is thereby made a part of the fifth. This mode of pleading by reference to a former part of the same indictment, to obviate a useless repetition, is sustained by authority and seems to be without substantial fault. {The People v. Graves, 5 Park. Crim. Rep., 134.)

The demurrer as to the fourth and fifth counts was properly overruled, and tlie judgment should be in all respects affirmed.

Macomber and Lewis, JJ., concurred.

Judgment of the Court of Sessions of Monroe county appealed from affirmed.


author: Lewis, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JACOB DOLD, Appellant.

      Adulteration of butter — the manufacture must be with an intent to sell the product as butter.

    A penalty is imposed by sections 8 and 19 of chapter 183 of the Laws of 1885, as amended by chapter 577 of the Laws of 1886, upon any person who shall mix certain foreign substances with milk, cream or butter, or manufacture any other oleaginous substance with the intent to sell the same for butter or cheese, or have it in his possession or offer it for sale with that intent.
    In an action to recover the penalty imposed for a violation of these statutes, the evidence showed the manufacture by the defendant of butterine or oleomargarine, but failed to show that he did so with an intent to sell it for natural butter.

      Held, that, in order to constitute the offense it was necessary to show that the manufacture was with an intent to sell the product as butter, the product of the dairy.
    That it was not unlawful for the defendant to manufacture the substances complained of and to sell them for what they were.
    Appeal by the defendant Jacob Dold from a judgment of the Supreme Court, entered in the office of the clerk of Erie county on the 2d day of September, 1891, upon a verdict in favor of the plaintiff of $500 after a trial at the Erie Circuit before- the court and a jury.

      AdeTbert Moot, for the appellant.

      A. O. Galkins, for the respondent.
   Lewis, J.:

This action wTas brought for the recovery of a penalty of $500 under sections 8 and 19 of .chapter 183 of the Laws of 1885, as amended by chapter 577 of the Laws of 1886. Section 8, so far as is necessary to the present inquiry, is as follows:

“'No person shall manufacture, mix - or compound with or add to natural milk, cream or butter any animal fats, or animal or vegetable oils; nor shall he make or manufacture any oleaginous substance not produced from milk or cream with intent to sell the same for butter or cheese made from unadulterated milk or cream, or have the same in his possession, or offer the same for sale with such intent; nor shall any article or substance or compound so made or produced be sold intentionally, or otherwise, as and for butter or cheese, the product of the diary.”

Then follows a clause prohibiting the using of coloring matter in the manufacture of butterine or oleomargarine. This section makes a violation of its provision a misdemeanor, to be punished-by a fine of not less than $100 nor more than $1,000. Section 19 provides a penalty of $500 for the violation of the provisions of section 8, to be recovered, with costs, in any court of the State having jurisdiction thereof in a case to be prosecuted by the dairy commissioner in the name of the -people of the State. The complaint in one and the same count charges that the defendant violated section 8 in that he did manufacture, mix and compound with, and add to, natural milk, cream and butter certain animal fats, and animal and vegetable oils, and did make and manufacture a certain oleaginous substance not produced from milk and cream, with intent to sell the same for butter made from unadulterated milk or cream, and did have the same in .his possession and offered the same for sale with such intent.

Then follows a clause charging that he had in his possession butterine or oleomargarine which was colored with annotto or other coloring matter. The evidence tended to show that the defendant did manufacture butterine or oleomargarine by mixing animal fats and animal and vegetable oils with natural milk, cream and butter, but failed to show that he did so with the intent to -sell the-same for butter made from unadulterated milk or cream. There was no evidence which would warrant a verdict against Mr. Dold on the theory that he made this oleomargarine or butterine, or offered it for sale, •or intended to sell it as an article • made from unadulterated milk or cream.

The court charged the jury that, if they found from the evideiice that the defendant did manufacture, mix or compound with or add to natural milk, cream or butter any animal fats or animal or vegetable oils, he was liable for the penalty. The defendant’s ■ counsel excepted to this part of the charge because it left out of view the intent to sell the same for butter or cheese, and thereupon requested the court to charge the jury that, unless they found that the defendant mixed or compounded natural milk, cream or butter with animal fats or animal or vegetable oils, or oleaginous substances not produced from milk or cream, with' the intent to sell the same for butter or cheese, they cannot find in favor of the plaintiff, so far as this part of the case is concerned.

The court declined so to charge, and the defendant duly excepted. The question is, therefore, distinctly and clearly presented, did the defendant incur the penalty by mixing these substances, as stated, without any intention of selling the product for butter, but intending to sell it for just what it was, oleomargarine or butterine. The undisputed evidence was, that in the manufacture of oleomargarine or butterine the use of milk or cream is indispensable. Without the use of milk or cream the compound would not be oleomargarine or butterine.

In the case of The People v. Marvx (99 N. Y., 377), the defendant was convicted of the violation of the sixth section of chapter 202 of the Laws of 1884, which provides that: No' person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article' designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer for sale the saíne as an article of food.”

Judge Eapallo, in his opinion, says: It appears to us quite clear that the object and effect of the enactment under consideration were not to supplement the existing provisions against fraud and deception by means of imitations of dairy butter, but to take a further and bolder step, and by absolutely prohibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published, to drive the substituted article from the market, and protect those engaged in the manufacture of dairy products against the competition of cheaper substances capable of being applied to the same uses, as articles of food.”

The act, so far as it attempted to accomplish that, was held to be void as violative of the provisions of the Constitution securing freedom to all persons to follow any lawful pursuit not injurious to the community.

After the argument of that case in the Court of Appeals, but before the decision was announced, chapter 183 of the Laws of 1885 was passed, containing the section under review. The amendment of 1886 does not affect the question before us. If the construction given to this section by the trial court, that the mixing of animal fat or oils with milk or cream is prohibited without reference to an intent to sell the product for butter, be correct, then it seems to logically follow that the legislature has, by this act, accomplished the very thing which the Court of Appeals 'held in People v. Marx (supra), could not be done by act of the legislature. The act of 1884 sought to prohibit the manufacture or sale of oleomargarine as a substitute for butter, and was held to be void. The act of 1885 prohibits its manufacture for any purpose, unless section 8 permits it to be manufactured if the manufacturer intends to sell it for just what it is. In the case of The People v. Arensberg (105 N. Y., 123), being an appeal from a judgment of conviction of the defendant for violating the same act, Judge Rapallo says:

“ The statutory prohibition is aimed at a designed and intentional imitation of dairy butter, in manufacturing the new product, and not at a resemblance in qualities, inherent in the articles themselves and common to both.”

While it appears from the record that the use of cream or milk does •impart to the compound a butter taste, and, in a slight degree, gives the substance the yellow hue of genuine butter, but, as suggested, if the cream or milk be not used, the product is not oleomargarine and would not answer the purpose for which it is manufactured, to wit, a cheap substitute for butter. It was, concededly, within the power of the legislature to prohibit the mixing of the ingredients mentioned in the section with the intent to sell the product as or f or butter. But as it was not within the province of the legislature to-prohibit its manufacture altogether, it must be held, to give it any force or effect, that the clause “with intent to sell the same for butter ” applies to that part of the section prohibiting the mixing of the animal or vegetable oils or animal fats with natural milk or cream or butter. It follows that it was error in the court to charge that the intent to sell was not necessary to constitute a violation of that part of the section. The complaint, as we have seen, also charged the defendant with having in his possession oleomargarine colored with annotto or other coloring matter, and there was evidence tending to sustain this allegation of the complaint; yet, as the court submitted to the jury the question whether the defendant was guilty of violating the provisions of the section first referred to, as well as the question of the use of coloring matter, we cannot know whether the jury found against the defendant for mixing the compound or for using coloring matter.

Because of the error in the charge of the court, that the intent to sell was not necessary to constitute a violation of the section, a new trial should be granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concurred.

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


text:
    BRIDGET McDONALD, as Administratrix of THOMAS McDONALD, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — a defective head-light on an engine — an engineer, neglecting to have his engine repaired, is a fellow-servant of a flagman.

    In an action brought to recover damages resulting from tlie negligence of a railroad corporation alleged to have caused the death of a flagman, it appeared that when an engine started from Syracuse upon the defendant’s railroad it had'been lately examined and was in good order; that upon its arrival at Rochester the engineer discovered that the head-light glass had tilted back so that air could get in, which. had blown out the light; that he did not have it repaired, and did not relight it, but put on the front of the engine a signal light about the size of an ordinary track lantern and proceeded, and that in the night he struck and killed a flagman.
    It was also shown that the rules of the corporation required engineers to look at their engines, and if not in repair to take the engine to the repair shop at once; that a head-light be shown after sunset, and that every precaution must be taken for safety. It also appeared that there was a repair shop at Rochester.

      IMd, that it was the duty of the engineer to have run his engine into the shop for repairs.
    That, in the performance of their several duties, the engineer and the flagman were fellow-servants.
    That the act of the engineer in determining to proceed with a defective engine was not the act of the corporation, but that of a co-employee of the flagman.
    That as the examiner at Syracuse had fully performed his duty and declared the engine fit to proceed, after inspection had, the defendant was not liable, the inspection required by the engineer being that of a servant simply.
    Appeal by the defendant, tlie New York Central and Hudson River Railroad Company, from an order of the Supreme Court, entered in tlie office of tlie clerk of Monroe county on tlie 1st day of December, 1891, denying its motion for a new trial upon the minutes of the court, the plaintiff haying recovered a verdict of $4,250 .after a trial at the Monroe Circuit before the court and a jury.
    The action was brought to recover the damages resulting from the death of the plaintiff’s intestate, Thomas McDonald, who ivas killed while in the discharge of his duties as a flagman in the defendant’s employ, at the first highway crossing west of Chili station, on the evening of December 9, 1891, by coming in collision with an engine of defendant’s running westerly, without a train, in the night-lime, without a lighted head-light.

      Albert H. Harris, for the appellant.

      'George F. Yeoman, for the respondent.'
   Lewis, J.:

"We assume, in disposing of this appeal, that McDonald’s death was caused by the running of the engine without a head-light, and that he was free from negligence contributory to his death. The qnestion to be considered is, whether the deceased came to his death by the negligence of the defendant or by the negligence of a co-employee only.

Mr. Brown, as one of defendant’s engineers, was required on the afternoon of the day of the accident to run an engine from the round-house in the city of Syracuse to the city of Buifalo; his fireman was Thomas Freeney. They left Syracuse at 2.30 that afternoon ; when they arrived at Rochester it was dark, and they there discovered that the head-light glass of the engine was out of order and the light was not burning. The glass was unbroken ; the bottom of it was in position, but the top was tilted back four inches, which let in the air and extinguished the head-light. The engineer could not repair it, so he caused to be placed on the front of the engine a signal light about the size of an ordinary track lantern, and proceeded westwardly towards Buifalo without any head-light except the lantern; and in passing over the crossing where McDonald was stationed' ran against him, causing his death.

It was shown upon the trial that the defendant had in its employ at the round-house in Syracuse, where this engine was kept, a Mr. Wilke, whose business it was, and had been for many years, to inspect the liead-lights of the engines and see that they were kept in repair. This engine was shown to have been in the round-house at Syracuse the day of the accident until it was taken by the defendant’s engineer, as stated.

The evidence tended to Show that the head-light was inspected by defendant’s inspector before it left' Syracuse that day, and that it was in good condition. The defendant had shops at Syracuse and Rochester, with facilities for repairing the head-lights of their engines. There was evidence tending to show that the defendant required its engineers, when using engines, to look at them to see that they were in proper order for use; and in ease they were found to be out of order, to take the engine at once to the proper place for repairs, and report the defects. The rules of the company provided that a train running after sunset should display its head-light. The rules also provided that conductors and enginemen must take every precaution for the protection of their train, and in all cases of doubt or uncertainty to take the safe course and run no risks.

The trial justice charged the jury that it appeared from all the evidence in the case that the engineer was charged with the duty of inspecting the engine and seeing that it was in proper condition, and that it was for them to say whether the failure of the inspector, who, for the purposes of taking care of the engine, stood in the place of the company itself, whether his failure, after he had discovered that there was a defect in the head-light, to bring it to the notice of the people whose duty it was to mend it, and to see that the proper thing should be done with it, was negligence on the part of the company. The defendant’s counsel duly excepted to this portion of the charge of the court, and asked the court to charge the jury that, in leaving Rochester and running to' the crossing in question with the head-light of the engine out of order, the engineer acted as a fellow-servant of McDonald, and not as the defendant. The court declined so to charge, and the defendant excepted. The court did charge that there was no negligence in the inspection of the head-light at Syracuse, and that there was no evidence of any defect in the head-light when it left Syracuse. So we have the question presented, was the act of the engineer in proceeding with the defective head-light the negligence of the defendant, or the negligence of a co-employee of the deceased ?

It is obviously the duty of' every person engaged in the use of any kind of machinery to keep a constant supervision over it to see that it does not get out of order. The evidence shows that the repairing of this head-light could only be done at a shop furnished with proper facilities. It was the engineer’s duty, when he found the head-light out of order, to run the engine into the shop at Rochester for repairs. The engineer, the fireman and the deceased, so far as the ordinary duties they were required to perform, were unquestionably fellow-servants.

It is conceded that when Brown was performing an act necessary to the management and movement of his engine he was a co-employee of the deceased. But it is contended that when he was looking at the engine to see if it was in condition to be safely used, he was an inspector and stood in the place of the compaany.

The acts of manipulating the engine levers and looking at the engine may be performed simultaneously, and yet the respondent contends that when doing one of the acts Brown stood as a representative of the company, and in doing the other he was acting as an engineer, simply. In keeping an oversight over the engine, the engineer was, we think, simply performing a duty incumbent upon him as an engineer, a duty incident to his position as an engineer; and wlien he determined to proceed with the defective engine it was the act of a co-employee of the deceased, and not the act of the principal.

The engineer was not required to repair the head-light. Had he run the engine into the repair shop and reported its condition to the company, he would have fully discharged his duty. If an employer, who carefully examines a machine, and finding it in good condition directs his servants to use it, enjoining upon one of them the duty of watchfulness to see that it does not get out of repair, is to be held liable for an injury to one of the servants caused by the failure of the one required to keep watch to perforin his duty in that regard, the doctrine that employers are not to be held liable for the negligent acts of co-employees would be practically exploded.

“A rule of a railroad company providing that conductors will be held responsible for the proper adjustment of switches used hy their trains does not make the conductor the representative of the company so as to make his negligence that of the company in respect to injuries sustained by other employees.” (Miller v. Southern Pacific R. Co., Oregon, vol. 43 Alb. L. Jour., 354; Reynolds v. Kneeland, 17 N. Y. Supp., 895.)

¥e have examined the authorities referred to by the learned trial justice, and the counsel for the respondent, but they fail in our judgment to sustain the verdict in this case. Fuller v. Jewett (80 N. Y., 46) was a case of an injury to an engineer, caused by the explosion of a locomotive boiler. The explosion was caused by the weakness. of the boiler, resulting from defective stay-bolts and a defective outer sheeting. The engine, after it had been in use for ten years, was taken to the shop of the company for general repairs, and the master mechanic in charge of the shop gave directions for its thorough overhauling. The repairs were made by mechanics in the employ of the company. The company was held liable for the negligence of these mechanics in repairing the boiler, upon the ground that it had delegated to them the entire charge of making the repairs, and in doing so they stood in the place of the principal. The ease of Crispin v. Babbitt (81 N. Y., 516) fails to sustain the contention of the respondent.

The defendant having in its employ at Syracuse an expert to whom it had confided the duty of examining and repairing its locomotive head-lights, and lie having fully discharged his duty in the premises, the defendant was not liable to the plaintiff for the negligence of the engineer. The supervision of the engine required of the engineer Brown pertained to his duty as an operative simply, and in performing it lie was acting as a co-employee of the deceased.

"We find ourselves unable to agree with the learned trial court’s views of the liability of the defendant upon the evidence.

The order appealed from should be reversed, and a new trial granted, costs to abide the event.

Dwight, P. J., and Macomber, J\, concurred.

Order denying motion for a new trial appealed from reversed, and a new trial granted, with costs to abide the event.


text:
    CHARLES W. HENNING and Another, Respondents, v. SEYMOUR BENNETT and Another, Appellants.
    ‘ ‘ The wear of the creek ” — it does not include a change made by a freshet — title to the thread of the stream.

    The Cazenovia creek, which divided the lands of Charles ~W. Henning and John Hughes, was the* south-westerly boundary of Henning’s lot; the land owned by Hughes being on the opposite side of the creek. At one place the creek made a deep bend southerly and returned, and then ran about in the same direction as before. Both parties held their land under a common source of title, Henning’s lot being described as containing twenty-four and seventy one-hundredths acres, “less the wear of the creek.”
    During a freshet the creek broke through and across the top of the bend, and abandoned its old bed in the loop.
    Hughes claimed that the land in the loop belonged to him; that the change should be regarded as “the wear of the creek,” and that the new line of the creek determined the boundaries.
    In an action of ejectment brought by Henning.

      Reld, that “the wear of the creek” had reference only to gradual and imperceptible changes in the banks of the creek, by which soil might be taken from one side and deposited on the other.
    That it had no reference to a violent change in the course of the creek caused by a flood, and that, therefore, the land in the loop continued to belong to Henning.
    That where a deed bounded property upon a creek, this carried the title to the center of the creek.

      Appeal by the defendants, Seymour Bennett and John Hughes, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 15th day of January, 1891, adjudging the recovery by the plaintiffs of certain real property described in the complaint after a trial at the Erie Circuit before the court, the jury having been discharged.

      Spencer G Union, for the appellants.

      JS. L. Parker, for the respondents.
   Lewis, J.:

- This is an action of ejectment brought to recover parcels of land situated in the county of Erie.

The plaintiffs and the defendant John Hughes were owners of adjoining lots of land located partly in the city of Buffalo and an adjoining town. The. defendant Bennett was a tenant of Hughes and did not answer.

The titles came from the same source, the Ogden Land Company. The plaintiffs’ land was known and distinguished on a map and survey of the village tract, so called, made by Mr. James Sperry, as lot 37. The plaintiffs’ lot in the various conveyances was described as containing 24^¶- acres less the wear of the creek.”

The south-westerly boundary of the plaintiffs’ lot, as laid out upon Sperry’s map, was known as Cazenovia creek as originally surveyed, and this line is described as beginning at the north-west corner of the lot and thence up the creek a number of courses and distances mentioned, and which appeared upon the map, and running along the margin of the stream. The defendant was the owner of lots 270 and 271 upon said map, designated as lying upon the opposite side of the creek from the plaintiff’s land.

The land of the parties is low. Cazenovia creek in an ordinary state of water is sluggish, but is subject to severe floods in times of freshet. The general course of the creek in passing through the lands of the parties ran in a north-westerly direction, but at a point in its course through the lands of the parties it made a sudden detour for a distance of some four hundred feet southerly from its general course and then returned northerly about the same distance to a point opposite the place of its departure, and from tlience flowed along in the general line of the stream, leaving a part of the plaintiff’s lot, a long narrow strip of land, extending up into this bend of the stream.

In the year 1859, at a time of'a great freshet, the waters of the stream broke over and across the neck of this narrow strip mentioned and formed a channel through the neck, and thereafter, instead of making the detour mentioned, the waters flowed along the general course of the stream across the neck of this strip of land, and thereby separated this piece of land from the main body of the plaintiff’s lot, and hence arose one of the questions presented by this appeal, each of the parties claiming this strip of land.

It being the contention of the defendant that it was lost to the plaintiff by the “ wear of the creek; ” the plaintiff contending that the true meaning of the phrase “ wear of the creek ” had reference to the gradual and imperceptible changes in the banks of the creek by which the soil is taken from one side of the stream and deposited upon the other, and not to a sudden and violent change in the course of the stream by floods.

The plaintiff’s theory of the case was adopted by the trial court, and we think correctly. ¥e think the use of the phrase wear of the creek ” had reference to the gradual alteration of the course of the stream, and not to a violent and sudden change of its course as was effected in this case. The western boundary of the plaintiff’s lot being upon the creek, and following courses and distances, carried the western lino to the center of the creek.

The findings of the trial court were sustained by the evidence. The exceptions of the defendant have been examined, and we find nothing in them justifying a reversal of the judgment.

The judgment should be affirmed.

Dwigi-it, P. J., and Macomber, J., concurred.

Judgment appealed from affirmed.


author: Macomber, J. :

text:
    LOUISA P. CHARD and Another, Administrators of RUFUS C. PALMER, Deceased, Appellants, v. HORATIO N. HOLT and Others, Respondents.

      Estoppel — redemption from a tax sale by a mortgagee — its effect v/pon a ps'ior sale for tarns — limitation in a notice to redeem.

    In 1872 the title to certain lands was in Amelia Holt, who mortgaged them to Rufus O. Palmer and subsequently died. In 1885 the lands were sold for the taxes due Chautauqua county for the year 1884. Two years later the purchaser, one Wilson, received a certificate of sale, and subsequently a deed from the county treasurer, which was recorded in 1888. In 1887 the lands were again sold for the taxes of 1886 to the same purchaser who received a certificate. He assigned this to Horatio H. Holt, and also quit-claimed the premises to him by a deed recorded in 1888.
    Within two years of this latter sale of 1887 the administrators of Palmer, filed a notice, with the county treasurer in which they claimed that they were entitled to be served with any notice required by law to be given to a purchaser upon such a sale, and particularly with notice of the sale of 1887.
    About a month later, and in December, 1889, Holt filed a notice with the treasurer requiring the administrators to redeem from the sale of 1887, but further stating that a redemption would have no effect upon prior perfected sales. Holt then had notice of the existence of the mortgage, and that its foreclosure had proceeded to judgment. In January, 1890, the administrators, who had no knowledge of the sale of 1885, redeemed the premises from the sale of 1887, and the county treasurer paid the money to Holt, who retained it.
    After the sale in foreclosure Holt refused to surrender possession.
    In an action of ejectment:

      Held, that whatever rights Holt acquired, under the sale in 1885, were surrendered by his recognition of the right ■ of the administrators to redeem under the sale of 1887.
    That having elected to keep alive the certificate of 1887, and having, with knowledge of their interest in the premises, notified them to redeem, Holt had made his election and could not now alter it.

      Quwre, whether section 82 of chapter 427 of the Laws of 1855 was in force in 1889.
    That, inasmuch as it appeared that the administrators did not know until after the entry of the judgment in their action of foreclosure that the property had been sold for the taxes of 1884, their right to a redemption from the effect of that sale, as well as from the sale for the taxes of 1886, was not affected by Holt’s statement in his notice that a redemption would have no effect on any prior perfected sales.
    That, in view of the facts of payment by the administrators under the notice, and the retention of that payment by Holt, he could not limit his notice in any respect.

      Appeal by tbe plaintiffs, Louisa P. Chard and George A. Gane,, as administrators, with the will annexed, of Rufus C. Palmer, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Chautauqua on the 8th day of April, 1891, dismissing the complaint upon the merits, with sej>arate costs to the defendants, after a trial before the court without a jury at the Chautauqua Circuit.

      Thomas J. McKee, for the appellants.

      Silas W. Mason and S. A. Simons, for the respondents.
   Macomber, J. :

The plaintiffs’ title to the lands, for the possession of which this action was brought, is derived by them through an action for and a judgment of foreclosure and sale of mortgaged premises, at which sale they, as administrators, became the purchasers.

The title of the principal defendant, Horatio N. Holt, is derived from certificates of tax sales issued to him, one from a tax sale which occurred on the 27th day of October, 1885, and the other November 23, 1887.

■ The facts in this action, as agreed upon and as found by the court, are briefly as follows: On the 1st day of June, .1872, Amelia Holt, the owner of the premises, exeeuted a mortgage thereon to Rufus C. Palmer. The debt secured by the mortgage having become due and payable, proceedings were taken by these plaintiffs, who are the administrators, with the will annexed, of Rufus C. Palmer, to foreclose the mortgage, and a notice of pendency of such action was filed in the proper county December 4, 1885. Such proceedings were had therein that a judgment of foreclosure and sale was rendered in that action on the 29th day of August, 1889, and a sale of the mortgaged premises'was had February 21,1890, at which sale the plaintiffs, being the highest bidders therefor, purchased the property, and a deed was properly executed to them by the sheriff of Chautauqua county. Having this title, and finding the defendant Horatio N. Holt and others in possession, a demand of possession of this land was made upon them which was refused, and, accordingly, this action to recover the possession of the lands in dispute was begun.

The defense, which prevailed upon the trial, rests upon a tax title in Horatio N. Holt. These lands were sold for county taxes on the 27th day of October, 1885, on a levy of taxes made in the year 1884, upon an assessment thereon against Amelia Holt, who was at that time the owner. One T. Charles Wilson became the purchaser at such tax sale, and he received the certificate from the county treasurer of Chautauqua county on the 27th day of October, 1887, and subsequently such county treasurer executed and delivered to him a deed of the premises to which he seemed to be entitled under such sale, which was recorded on the 14th day of May, 1888.

Another sale for like taxes was liad under an assessment made in the year 1886, and a sale of the same premises took place on the 23d day of November, 1887, under the direction of the county treasurer, .and the same lands were again struck down to T. Charles Wilson, to whom a proper certificate of sale was subsequently delivered.

Wilson, on the 17th day of January, 1888, by an instrument in writing sold and assigned this certificate of sale, and all his rights thereunder, to the defendant Horatio N. Holt; and on the fifteenth day of May, of that year, Wilson quit-claimed the premises to Holt by a deed recorded on that day. But Wilson had no title to the land, except that derived by him by virtue of the tax sales herein-before mentioned.

On the 11th day of November, 1889, and within two years after the sale for the taxes of 1886, the plaintiffs, as such administrators with the will annexed, filed a notice as mortgagees of the premises, which is set out in the case, to the effect that they claimed to be ■entitled to be served with any notice required by any provision of law by the purchaser or purchasers of the premises at any sale thereof made for taxes, and particularly'with a notice required to be given by such purchaser or purchasers at the sale made on the 23d day of November, 1887, for the taxes of 1886. Thereupon, and on the 17th day of December, 1889, the defendant Holt served on the plaintiffs, and on the same day filed, a notice in the county treasurer’s ■office requiring the plaintiffs to redeem these lands from the tax sale made on the 23d day of November, 1887, for the taxes of 1886. ■On the 25th day of January, 1890, the plaintiffs paid to the county treasurer of Chautauqua county the whole amount of these taxes being $358.59; and the treasurer subsequently handed over such money to the defendant Horatio N. Holt, who received it in pursuance of such notice to redeem, and he has since retained such money as his own. At the time of the service of the notice to redeem this defendant, Horatio N. Holt, had notice of the existence of the above mortgage, and of the fact that there had been a judgment of foreclosure therein, but the sale of the mortgaged premises to the plaintiff was not had until February, 1890, two months later. Upon the payment by the plaintiffs of the above-mentioned sum of money (viz., $358.59) the county treasurer executed and delivered to them a certificate of redemption in due form of law.

Upon these facts the learned justice at the circuit held that the plaintiffs had failed to make a ease entitling them to the possession of the premises, and, accordingly, dismissed their complaint. In this conclusion we cannot concur. In our view of the case, whatever rights the defendant, Horatio N. Holt, may have had by virtue of the sale made in the year 1885, such rights were entirely surrendered in the recognition by him of the right which the plaintiffs had to redeem under the tax sale made November 23, 1887, for the unpaid taxes of 1886. Mr. Holt having accepted the money deposited by the plaintiffs with the county treasurer for the redemption of the taxes laid upon these lands in 1886, it would seem to follow, necessarily, that the plaintiffs are subrogated to any and all of Mr. Holt's rights acquired under the tax sale of 1887. Having elected to keep alive the tax-sale certificate of November 23, 1887, and having notified the plaintiffs to redeem from such tax sale, with a knowledge of their interest in the premises, Flolt is conclusively charged with the consequences of an election to the plaintiffs, as mortgagees or owners, to redeem, and he cannot now be permitted to recede therefrom. If the defendant relied upon the deed of the 28th of October, 1887, executed in pursuance of the sale of 1885 for the taxes of 1884, it would seem to be hardly less than a fraudulent transaction for him to serve a notice to redeem the lands from the tax laid in 1886. (Wood v. Seely, 32 N. Y., 105; Sherman v. McKeon, 38 id., 266.) "We agree with the learned counsel for the respondents, that chapter 229 of the Laws of 1879 provides an adequate system for the collection of taxes, and for the sale of lands for unpaid taxes in Chautauqua county, and for the vesting of a fee in the purchaser at such sales. So far as we are able to observe, notwithstanding section 32 of this act, incorporating the general tax law (chap. 427 of the Laws of 1855), no question relating to the eighty-second section concerning notices to be given in cases of sales of lands for unpaid taxes by the comptroller of the State can arise. By section 1 of chapter 285 of the Laws of 1862, section 82 of chapter 427 of the Laws of 1855 was repealed. By'section 1 of chapter 280 of the Laws of 1870 the repealing statute was itself repealed without any provision reviving the repealed section. This eighty-second section was again abrogated by chapter 556 of the Laws of 1890.

The question, as we deem it to be, is, not whether the plaintiffs have conformed to the general tax laws of the State, in so far as they may differ from the statutes for levying and collection of taxes, and the sale of lands thereunder in the county of Chautauqua, but it is rather confined to the precise situation brought about by the .invitation, in writing, of the defendant Horatio N. Holt to the plaintiffs to come in and redeem the lands from the tax sale of 1887, with a necessary implication that, if such redemption was had, and the moneys paid to the county treasurer, and he in turn should turn them over to the defendant, that any claim made by the defendant thereafter should be in subordination to the rights acquired by the plaintiffs through such redemption. The plaintiffs themselves were ignorant, in fact, of the sale made in 1885 for the tax of 1884, but had been made acquainted with the sale made in 1887. At the time of the notice served by the defendant Holt to redeem from the last-named sale, the title had not so ripened in the purchaser and his grantee under the sale made in 1885, so that it could not be divested by redemption thereunder, under the general tax laws of the State. But, as we view the case, there is no question touching the rights of the parties under the tax of 1884, which was followed by the sale of 1885. Under the evidence the plaintiffs had a complete title to the premises by virtue of the mortgage foreclosure and sale above mentioned, except as the same might have been divested by reason of their omission to protect the property from taxation.

But it is argued by the learned counsel for the respondents that, inasmuch as the notice of redemption contained a clause to the effect that the same should have no effect upon any previous sales heretofore completed and perfected under the law, that he can still claim title to tbe lands by virtue of tlie sale made in tlie year 1885, and that tlie only effect of such, redemption was to add to tlie mortgage security tlie amount paid for such redemption. But, as it seems to us, this qualification can bave no influence upon tbe general question above considered It does not sqiecify wbat sales bad theretofore been bad; and it is stipulated, as a fact in tbe case, that tbe plaintiffs did not bear of tbe sale made in 1885 until after tbe entry of their judgment in tbe foreclosure action. Furthermore, we do not think it was competent for tbe defendant to qualify or limit tbe effect of her notice to redeem, provided tbe same was actually followed by a payment by tbe plaintiffs of tbe moneys in pursuance of tbe notice, and a receipt and retention by tbe defendant thereof. If this conclusion be not correct, tbe defendant Ilolt would be in tbe attitude of having received money from tbe plaintiffs to which be was not entitled, and a fraud would be perpetrated under tbe guise of enforcing the laws of 1879 applicable to tbe county of Chautauqua.

For this reason we think that the judgment appealed from should be reversed.

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

Judgment, appealed from reversed and a new trial granted, with costs to abide tbe event.


author: Maoomber, J.:

text:
    MARY ANN NOONAN, as Administratrix of WILLIAM NOONAN, Jr., Deceased, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

      Practice — an abandomnent of a case ami exceptions — Us filing cannot be compelled — the appeal is still left to be hea/rd upon the judgment-roll.

    A plaintiff having been nonsuited, her attorney made a case and exceptions, which were settled and ordered filed. I-Ie, however, neglected to file them, and served the defendant with a notice that the case and exceptions had been abandoned, and ten days later began a new action. The defendant then procured an order requiring the plaintiff to file the case and exceptions.

      Held, that the court had no power to grant the order.
    That, under Rule 85, upon a failure to file the case it was deemed abandoned and could not be revived.
    That there remained to both parties the right to have the appeal heard upon tlie judgment-roll alone.

      Appeal by the plaintiff Mary Ann Noonan, as administratrix, etc., of William Noonan, Jr., from an order, entered in the office of the clerk of the county of Genesee on the 9th day of December, 1891, requiring the plaintiff to file a case and exceptions as signed, settled and directed to be filed by Mr. Justiee Childs.
    A part of the affidavit of the plaintiff’s attorney read upon the motion was as follows :
    Deponent further says: That it became necessary to make a case and exceptions in order to obtain an order from Mr. Justice Childs that his former order made at the close of the trial might be modified so that a motion for a new trial on said case might be heard in the first instance at the Special Term. That after the new facts came to light, which make the defendant liable, deponent only had two courses which he might pursue: First. To embody these new facts in the form of an affidavit and make a motion at some Special Term for new trial on the ground of newly discovered evidence and surprise. Second. To commence a new action; that to make said motion it is necessary to settle a case and exceptions; that if a new action was commenced, the order that the case be heard in the first instance in the General Term must be modified, or the defendant in the new action to be commenced could successfully plead that action No. 1 ivas still pending, and would be a bar to action No. 2, and in order to modify this order it was equally necessary to make a case and exceptions.
    Deponent further says: That after said case and exceptions were made and signed he determined that it would be extremely hazardous for deponent to attempt to get a new trial; that said case and exceptions as made did not contain the new facts which fastened the liability of the defendant; and, on the facts as presented in the case and exceptions as signed, it would probably be the duty of the appellate court to affirm the decision of Mr. Justice Childs ; that the result of the motion for a new trial on the grounds of surprise and newly discovered testimony was not sure; that the cause of action would outlaw on the 25th day of February, 1892; that if deponent should fail to get a new trial in the appellate court the new facts would be of no avail, for the reason that the cause of action would have outlawed, therefore deponent was forced to abandon his appeal and commence a new action; that after deponent came to this conclusion he served on the defendant’s attorney a notice, as he had a right to under Rule 35, that he would abandon his case and exceptions and the defendant might enter an order to that effect and proceed in action No. 1 as if no case and exceptions had been made, and then, after waiting .ten days from the time said case and exceptions were signed, commenced a new action.

      IÍ. F. Brozan, for the appellant.

      George F. Broznnell, for the respondent.
   Maoomber, J.:

The plaintiff brought this action to recover damages sustained by the next of kin by reason of the death of her intestate, caused by the alleged negligence and unskillfulness of certain physicians employed by the defendant to attend the intestate, who had been injured on its railway while working as an employee of that corporation.

On the trial the plaintiff ivas nonsuited. Upon application to the court there was granted to her ninety days’ time in which to make a case, with exceptions, which was ordered to be heard at the General Term in the first instance. Subsequently the justice making this order modified the same by striking out that portion directing the exceptions to be heard in the General Term in the first instance. The case, with exceptions, was settled October 14, 1891, by the justice, who directed the same to be filed. Subsequently to this, it Avas determined by the plaintiff’s counsel to abandon further prosecution of that action, for what reason is immaterial to this appeal. Accordingly, on the 19th day of October, 1891, there was served upon the defendant’s attorney a notice that the case, with exceptions, had been abandoned, and that an order might be entered as of course, declaring the same abandoned without notice to the plaintiff. The case was not, in fact, filed under Rule 35. A new action Avas begun October 28,1891, and the motion, the order made upon which is now appealed from, was made in December, 1891, to compel the plaintiff to file the case and exceptions.

We know of no rule of the court which forces a party to proceed with a hearing upon a case and exceptions; and, consequently, we know of no practice by which, after the abandonment of such case and exceptions, a party, on motion of his opponent, can be required to proceed, in that mode, to review the decision at the trial. Rule 35 of the General Rules of Practice cannot bear any such construction. By that rule, unless the time in which a party is required to file a case after the same has been settled and signed shall be enlarged, the case is abandoned, and the party may proceed as if no case or exceptions had been made. There remains to either side the privilege, of course, to proceed to a hearing upon the judgment-roll, if it is deemed advisable. The case for review, therefore, is not, by any means, under Rule 35, thrown out of court by the practice here pursued by the plaintiff’s attorney. There is still open to him an appeal upon the judgment-roll. As the defendant cannot compel him to proceed originally to review the decision by making a ease and exceptions, so he cannot, after notice received to the effect that the case, with exceptions, had been abandoned, take any step to that end which he could not originally have taken. Rule 35 affords an easy, expeditious and ample mode of procedure in the event that the case and exceptions, after settlement by the judge, be not filed, and contains, if filing be omitted, a complete, and, in truth, the only penalty known to our practice against the party proposing such case and exceptions ; and no exigency is perceived by the light of these_ appeal papers for enlarging its provisions.

We think that the practice of the plaintiff’s attorney in this particular was authorized, and that, consequently, the order appealed from should be reversed.

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

Order appealed from reversed, with ten dollars costs and disbursements of this appeal, and the motion denied, with ten dollars costs.


author: Macombkr, J.:

text:
    CATHARINE S. SEIFERT, Appellant, v. RICHARD CAVERLY, Respondent.

      Ser nice by mail on attorneys residing in the same city — the address must be precise — a default opened without terms.

    The attorney for the plaintiff had stated his address, upon the summons and complaint in an action, as 199 Pearl street, Buffalo, N. Y. The defendant’s attorney, who resided in the same city, served a notice of trial upon him by mail, addressed to the plaintiff’s attorney No.-Pearl street, Buffalo, N. Y.

      Held, that the service was not good under section 797, subdivision 1 of the Code of Civil Procedure.
    That while such a service may be made by mail, the party who adopts it must comply strictly with the statute, and must give the precise address which appears upon the papers served.
    That, where judgment has been taken against the plaintiff at a term of the court for which the cause has been thus noticed, and there is no proof of the actual receipt of the notice of trial by the plaintiff’s attorney, he has an absolute right to have the default opened without the imposition of any condition.
    Appeal by tlie plaintiff, Catharine S. Seifert, from that part of an order made by the Erie county judge, and entered in the office of the clerk of said county on the- 10th day of March, 1891, which imposes the condition upon which an alleged default is opened, and refuses to vacate the judgment, which portion orders that: “ The default above-mentioned be and the same is so far opened and set aside that this action may be brought on for trial and tried upon the condition, however, that on or before the 14th day of March, 1891, the plaintiff herein pay all the disbursements which have been paid or incurred by the defendant herein ■ upon the taking of such default, and since the taking of the same, including all fees to the sheriff of the county of Erie, on account of the execution issued on the judgment above-mentioned, and upon the advertisement of the sale of the plaintiff’s real estate by virtue of said judgment, and the further sum of ten dollars costs of this motion to the attorneys for the defendant herein on or before the said 14th day of March, 1891.

      “ It is further ordered that the judgment so taken and entered in this action stand as security to the defendant for any judgment which he may hereafter recover in this action. * * *
    “ It is further ordered that in case the plaintiff fails or neglects to perform the above conditions, then this motion to open said default is denied, with ten dollars costs of the same to the defendant.”

      O. C. De Witt, for the appellant.

      Charles K Forsythe, for the respondent.
   Macombkr, J.:

At a term of the County Court of Erie county, held on the 19th day of January, 1891, this cause, it is claimed by the defendant, was duly noticed for trial. The plaintiff’s counsel happening to be in court on that day discovered the cause on the day calendar and objected to its continuance there, upon the ground that no notice of trial had been served upon him. Thereupon the court, without the consent of the plaintiff’s attorney, set the case down for the following day. On that day, namely, the SOth of January, 1891, the cause was reached, the plaintiff did not appear, and under an affidavit showing the deposit of a proper notice of trial in the post-office directed to the plaintiff’s attorney, the defendant was allowed to move the case and to obtain an order by default dismissing the complaint, with costs.

The motion to open such default was made upon the ground, mainly, that the proof of the service of the notice of trial adduced by the defendant’s attorney did not show that it was served upon the plaintiff’s attorney by being mailed to his office, addressed as designated by him upon the preceding papers served by him in this cause. The true address ■ of the plaintiff’s attorney was 199 Pearl street,Buffalo, N. Y., and this appears upon the papers signed by him in the case, such as the summons and complaint, etc. The notice of trial was addressed to the plaintiff’s attorney by his correct name, “No. — Pearl street, Buffalo, N. Y.” The offices of the attorneys of the respective parties are not only in the same city, but are located on the same street. Section 797 of the Code of Civil Procedure permits the service of a notice of trial by depositing it, properly inclosed in a post-paid wrapper, in the post-office of the party or attorney serving it, directing it to the person to be served “ at the address, within the State, designated by him for that purpose upon the preceding papers in the action.” Undoubtedly, under it, the service of papers by mail may be made in an action after the beginning thereof, though the attorneys live in the same city or town. But to make such service complete it is necessary that the correct address, by a street number, be given upon a post-paid wrapper wlieve such address appears upon papers which have been served in the case. In this respect the address of the envelope was fatally defective. The affidavit of the plaintiff’s attorney that he did not receive the notice of trial is made positively, and is corroborated by that of his managing clerk. While it is true that the failure of the mails is not to be ascribed to the parties depositing mail matter when it is post-paid and properly addressed, yet, when the question depends upon the regularity of such service, in the absence of proof of the actual receipt of that paper, the party claiming to be regular under this provision of the Code must show affirmatively that the envelope was addressed to the party at the place designated by him for the purpose of serving papers. In this respect the defendant’s proofs, on taking a dismissal of the complaint, were fatally defective.

The question, therefore, before the County Court was not one of discretion. On the contrary, it was one of absolute right on the part of the plaintiff to have the default, which had been taken against him, opened upon showing the fact that he had not received a notice of trial, and that the pretended notice of trial claimed to have been sent by the defendant’s attorney did not conform to the Code of Civil Procedure in respect to the service of the papers. (Yates v. Guthrie, 119 N. Y., 420.) We think the court erred in imposing any condition upon the plaintiff in granting the motion; and for this reason flrat part of the order appealed from should be reversed.

Counsel for the plaintiff claims that this court should now order a restitution of the moneys which were paid in pursuance of the terms of the order. While it is true that restitution should be made in case the payment of the money was obtained as a condition of releasing the levy by execution upon the plaintiff’s property, yet we do not think that there were sufficient facts laid before us in these appeal papers to enable us to make such an order at the present time. The defendant has not been heard on that question. The plaintiff should make such application to the County Court in the premises as she may be advised.

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

So much of the order as is appealed from reversed, with ten dollars costs and disbursements.