author: Brown, P. J.: Pkatt, J.

text:
    Peter Mulligan and Others, Respondents, v. Luther C. Vreeland and Others, Appellants, Impleaded with Others.

      Foreclosure of a mechanic’s lien by a sub-contractor — assignment by the contractor of an installment due him— the assignee not a necessary party.

    An action to foreclose several mechanics’ liens was brought by sub-contractors against the owner of certain premises, the contractor for the erection of a building thereon, and certain other lienors. The answer of the owner alleged, among other things, that at a date prior to the filing of all the liens except one, the contractor assigned all moneys due and to grow due upon the second payment due him under the contract between the owner and the contractor, to the firm of Cloughly, Nichols & Co., in payment for material used in constructing the building, and that after the assignment the contractor abandoned the contract, and failed and refused to complete the same.
    Upon the trial of the action Cloughly was sworn as a witnesss for the owner, and after the case was submitted, the court granted an order making Cloughly, Nichols & Co. parties to the action.

      Held, that Cloughly, Nichols & Co. were not necessary parties, and that a complete determination of the claims asserted could be made without their presence before the court, and that such order was unnecessary and would be reversed on appeal.
    Pbatt, J., dissenting.
    Appeal by the defendant, Luther C. Yreeland, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 29th day of March, 1895, amending the summons and complaint in the action by adding the names of the firm of Cloughly, Nichols & Go. as parties defendant.
    Also appeals from said order by James Cloughly and others, who appear specially for the purposes of the appeal.
    The owner of the premises in question was Luther 0. Yreeland. The original parties defendant were the owner, the contractor and certain lienors. The answer of the owner alleged that the first payment due the contractor under the contract had been duly made, as required by the terms of the contract.

      A. I. Livermore, for the appellant.

      II. O. Griffin, for the respondents.
   Brown, P. J.:

This action was brought to foreclose a large number of mechanics’ liens upon the appellant’s property. There are eleven plaintiffs, each one of wbom lias filed a separate lien, and all of whom performed labor for one Roake, who was the contractor with the appellant for the erection of a dwelling house. The action was commenced in February, 1894. The appellant answered the complaint, and among other-tilings alleged that, on the 9th day of May, 1893, said contractor, by an instrument in writing, duly assigned to Cloughly, Nichols & Co., in payment for material furnished and used in the construction of the dwelling, all moneys due and to grow due upon the second payment due under said contract, and'that thereafter said contractor abandoned his contract and failed and refused to complete the same. The date of said assignment was prior to the filing of all the liens filed by the several plaintiffs with the exception-of one.

Thereafter, and on June 24,1894, the action was referred and the trial proceeded before the referee until February 11, 1895, when it was finally submitted to him for his decision, and on the trial said Cloughly was sworn as a witness on behalf of the owner.

The order appealed from was granted upon the plaintiffs’ motion and against the objection of the appellant Vreelaud, and permits the plaintiffs to make said Cloughly, Nichols & Co. defendants, and directs the submission to the referee to be set aside and the trial reopened and the issue raised or to be raised by the amended complaint to be determined in the action. The referee has made affidavit that he can render a complete determination of the controversy without the presence of any other parties than those now before the court, and it is apparent froin the foregoing statement that Cloughly, Nichols & Co. are not necessary parties to the determination of the claims asserted by the plaintiffs. Such being the fact, the order is unnecessary and the trial should not be delayed.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

DyicmaN, J., concurred.

Pkatt, J.

(dissenting):

It is familiar law that where, upon a trial of an equity cause, it appears that the presence of other parties is desirable to effectuate the objects of the action, they may be brought in upon the application of any party interested. They may also be brought in by the court on its own motion.

The moving affidavit made a fair case for the exercise of this power, by the court, and the order appealed from should be affirmed, with costs.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


source: Caselaw Access Project

author: Peatt, J.:

license: Public Domain

text:
    Henry A. Powell, as Assignee of John C. Provost, Respondent, v. John P. Schenck, Appellant.

      Bill of particulars denied when the applicant has a tetter knowledge of the facts than his adversary.

    Where it appears from the nature of tlie pleadings and from the facts shown upon an application for a hill of particulars that the party demanding it has presumably a better knowledge of the items of an-account than his adversary, the demand for such a bill of items will be refused.
    Brown, P. J., dissenting.
    Appeal by the defendant, John P. Solienck, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of April, 1895, granting the plaintiff’s motion requiring the defendant to serve a bill of particulars.

      George A. Stearns, for the appellant.

      Gustave Ilurlimann and James O. Foley, for the respondent.
   Peatt, J.:

The complaint is on six promissory notes. The answer is that the notes were given to accommodate the payee, who was at the time selling goods to the maker; that the balance of indebtedness was to be adjusted by an accounting, and that the maker had paid more of the notes than the amount of goods delivered.

Thereupon the plaintiff moves that defendant serve a bill of particulars of the goods delivered, etc.

We are not able to see that plaintiff requires any bill of particulars. If defendant is not able to prove the notes to be accommodation the plaintiff will get judgment for their face. If defendant proves them to be accommodation the plaintiff will reply by showing the amount of goods delivered. In that case a bill of items from plaintiff might be convenient, but that is not asked.

Moreover, it is sliown that plaintiff has full books of account, and that defendant did not keep accounts of the transactions, but relied upon those of the other party.

Order appealed from reversed and motion for bill of particulars, denied, with ten dollars costs and disbursements of appeal.

DyKMAN, J., concurred; BROWN, P. J., dissented.

Order reversed and motion denied, with ten dollars costs and disbursements.


author: BeowN, P. J.: Pratt, J.

text:
    William De Bevoise, Respondent, v. William Ingalls and Elizabeth J. Matthews, Appellants, Impleaded with Another.

      County Court — power to direct a new tried in a Justice’a Court — • an excuse fo', the default must be rendered.

    The County Court is a tribunal of limited jurisdiction and can exercise on appeal only such, powers as are conferred upon it by statute. The power given to that court by section 3064 of the Code of Civil Procedure to direct a new trial of an action begun in a court of a justice of the peace, cannot be exercised unless the defendant “renders a satisfactory excuse for his default;” and where the defendant fails to do this the direction that a new trial be had in the court below is erroneous.
    Appeal by the defendants, William Ingalls and another, from so much of an order of the Rockland County Court, entered in the office’ of the clerk of said county on the 19th day of June, 1893, as directed a new trial of the action before a justice of the peace.
    The action was commenced in a Justice’s Court, and the defendants not appearing on the return day of the summons the justice rendered judgment in favor of the plaintiff.' The defendants thereafter appealed to the County Court from said judgment, and on said appeal an order was granted and entered, setting aside the said judgment and directing a new trial of the action before the same justice.

      Gern-ge A. Wyre, for the appellants.

      A. 8. Tompkins, for the respondent.
   BeowN, P. J.:

The appeal from the justice’s judgment was heard by the County Court upon the justice’s return. The court had power to reverse the judgment, but no power to direct a new trial. Section 3064 of the Code of Civil Procedure was not applicable to the facts of the case. That section empowers the County Court to direct a new trial only when the appellant renders a satisfactory excuse for his default.”

No affidavits were read on the argument of the appeal and no reason was shown why the appellants did not appear before the justice of the peace.

The County Court is a tribunal of limited jurisdiction and can. exercise on appeal only such powers as are conferred upon it by statute.

It was error, therefore, for the court to order a new trial and the part of the order appealed from must be reversed, with costs.

DykmaN, J., concurred.

Pratt, J.

(dissenting):

This case is regulated by the Code, section 3064, which is as follows, viz.: “ If the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the action was adjourned, and he shows by affidavit or otherwise that manifest injustice has been done and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment appealed from or stay proceedings thereunder and by order direct a new trial before the same justice or before another justice of the same county * * * upon such terms as it deems proper.”

Section 3066 is as follows: “ * * * If a new trial is directed before the same or another justice * * * the costs of the appeal are in the discretion of the appellate court.”

It is to be noticed that the defendant rendered no satisfactory excuse for his default and that the judgment was not reversed, but-set aside.

It was clearly in the discretion of the county judge to make the order appealed from, and it should be affirmed, with costs and disbursements.

Order, so far as appealed from, reversed, with costs.


author: Peatt, J. :

text:
    In the Matter of the Application, etc., of Michael T. Daly, as Commissioner of Public Works of the City of New York, etc., under Chapter 189 of the Laws of 1893, to Acquire Certain Real Estate, etc. Mary P. Iselin and Others, Appellants; Charles A. Marvin and Others, Respondents.

      Report of commissioners of appraisal under chapter 189 of 1893 — sent hade to commissioners to apportion the awards between the owners of the surface of the land and the owners of the minerals, etc., under it.

    In a proceeding instituted under chapter 189 of the Laws of 1893 for the purpose of acquiring certain real estate for the sanitary protection of the sources of the water supply of the city of New York, commissioners of appraisal were appointed whoso duties were to ascertain and determine the compensation to he made to the owners of, and persons interested in, the real estate described in the petition. Certain claimants appeared before the commissioners so appointed, who claimed to own an undivided one-third of all the mines and minerals beneath the surface of the land included in the proceeding.
    The commissioners awarded a specific sum for each parcel of land taken. No separate award was made by the commissioners to the owners of the mines and. minerals beneath the surface.
    The report of the commissioners having been presented to the court for confirmation, an order was made by which the report was confirmed in part, and the court directed the report to be sent back to the commissioners to apportion the awards made for the respective parcels between the owners of the mines and minerals and the owners of the surface.
    Held, that the commissioners having viewed the premises and being conversant with the facts and circumstances surrounding the proceeding, were in a position to make the apportionment and determine what sums, if any, should bo paid to the owners of the surface and the owners of the mines and minerals, and that the order was a proper one.
    Appeal by Mary P. Iselin and Margaret Cl. Pliilipse, as surviving trustees, etc., and others, from the appraisal and report of the commissioners appointed under chapter 189 of the Laws of 1893, which report was dated the 18th day of October, 1894, and filed in the office of the clerk of the county of Putnam on October 22,1894. Also from orders of tlie Supreme Court, granted at the Orange County Special Term and entered in the office of the clerk of the county of Putnam on the 11th and 21st days of January, 1895, respectively, confirming the report of such commissioners. Also from orders of the Supreme Court, granted. at the Orange Special Term and entered in the office of the clerk of the county of Putnam on the l?th and 21st days of January, 1895, respectively, denying the motion of said appellants to vacate and set aside the appraisal and report and all proceedings of the commissioners, and confirming said report so far as it relates to the specific parcels of land and the respective awards made therefor, and as to the other parcels and awards in said report mentioned, and sending the same to said commissioners of appraisal for the purpose of having separate awards made to the several respective owners.

      'William U. Haldane, for Mary P. Iselin and others, appellants.

      Fnoncis M. Scott and II. T. Dykman, for petitioner, the corporation of New York city, respondent.

      Abram J. Miller, for Charles A. Marvin and others, respondents.

      Frederic S. Darnum, for Eliza A. Thomson and others, respondents.
   Peatt, J. :

This proceeding was instituted under the above-mentioned act for the purpose of acquiring certain real estate at Brewster, Putnam county, for the sanitary protection of the east branch of the Croton river and its tributaries, which are the sources of the water supply of the city of New York.

Commissioners of appraisal were appointed in accordance with the statute, whose duties were to ascertain and determine the compensation to be made to the owners of and persons interested in the real estate shown on the map and described in the petition. Among other claimants who appeared before the commissioners were the appellants, the Gouverneur heirs, who claimed to own the undivided one-third of all the mines and minerals beneath the surface of the various parcels of land included in the proceedings.

The commissioners performed the duties imposed upon them and made their report to the Supreme Court, in which a specific sum was awarded for each parcel of land taken. The appellants are the owners of the undivided one-third of the mines and minerals beneath the surface of each parcel included in the report, and no separate award was .made to them by the commissioners. The appellants filed a claim before the commissioners and submitted their interests without the introduction of any testimony, and without any exception to the proceedings in any way. When the report was presented to the court for confirmation an order was made by which the report was confirmed in part and was directed to be sent back to the commissioners in part to apportion the awards made for the respective parcels between the appellants and the surface owners. All the parties to the proceedings acquiesced in this order except the Gouverneur heirs, and from the order of confirmation this appeal was taken.

In our view the order was a proper one; the commissioners had viewed the-premises and were conversant with the'facts and circumstances surrounding the proceedings; they were, therefore, in a position to make the apportionment and determine what sums, if any, should be paid to these appellants.

The orders appealed from should be affirmed, with ten dollars costs and disbursements to all parties.

DykmáN, J., concurred; Brown, P. J., not sitting.

Orders appealed from affirmed, with ten dollars costs and disbursements to each of the parties, appearing.


author: DyKmaN, J.:

text:
    The People of the State of New York ex rel. Edward A. Gaus v. Leonard R. Welles, as Commissioner of Police and Excise of the City of Brooklyn.

      Oertiorkri — removal of a police officer — evidence insufficient to justify Ms disahwi'ge.

    Upon a hearing had upon the return to a writ of certiorari issued to review the proceedings of a police commissioner in removing the relator from the office of police sergeant upon the specified charge that on a certain day he was under the influence of liquor and unfit for duty, two witnesses testified against the relator, and nine witnesses, whose opportunities for observing the relator were at least equal to those of the witnesses who gave evidence against him, testified that they saw no indication that the relator was intoxicated on such day. The evidence against him consisted almost entirely of the opinions of the two first-mentioned witnesses.

      At the time in question the relator was engaged in the performance of his duty until he was sent to the station house charged with intoxication, and there was no proof that he had drunk any spirituous liquors or had been absent from his post of duty to obtain liquor.
    It also appeared that the relator had been a member of the police force for twenty odd years and had been promoted through the grades of roundsman and patrolman to that of sergeant.

      Held, that the preponderance of evidence was in favor of the relator and that the conviction would not be sustained.
    Certiorari issued out of tlie Supreme Court and attested on tbe 26th day of February, 1895, directed to Leonard B. Welles, as commissioner of police and excise of tbe city of Brooklyn, commanding bim to certify and return to tbe office of tbe clerk of tbe county of Kings all bis proceedings concerning tbe trial, conviction, dismissal and removal from office of tbe relator as policeman and sergeant, together with tbe charges and specifications, testimony and decision in relation to such removal.

      Hugo Hirsh, for tbe relator.

      Jaoob Brenner, for tbe respondent.
   DyKmaN, J.:

This is a certiorari to revieiv tbe proceedings of the police commissioner of tbe city of Brooklyn in removing the relator from the office of sergeant of police of that city.

The specific charge against the relator was that on the 19th day of January, 1895, he violated section 5 of rule 24 of the rules and regulations of the department, by being under the influence of liquor and unfit for duty, in front of the car house of the Halsey street car line at about twelve-thirty o’clock in the afternoon. ■

The relator was tried before the defendant, and two witnesses testified against him. Tlieir testimony is neither satisfactory nor convincing.

In answer to their testimony nine witnesses testified in favor of tbe relator.

Their opportunities for observing tbe relator were at least equal to those of the two witnesses who gave evidence against him, and they saw no indication that the relator was intoxicated.

Some of these witnesses were .with the relator duiing the forenoon of the day, and saw him drink nothing bnt coffee. There is no proof that the relator drank any spirituous liquors on the day he was sent to the station and on which he is charged with being intoxicated.

Moreover, the trial was conducted by the defendant without a proper regard to legal rules. The evidence against the relator consisted almost entirely or the opinion of the two witnesses who testified against him.

The relator had been a member of the police force of the city of Brooklyn for twenty odd years, and had been promoted through the grades of roundsman and patrolman to that of sergeant. It is almost inconceivable that the relator, who had been free from intoxication in the past, whose character and conduct had earned him his promotion, and against whom no charge had been made before, should suddenly in midday, while employed in the discharge of a dangerous duty, become intoxicated and incapable of performing his duties.

It is to be observed also that the relator was engaged in placing-men upon the cars when he was sent to the station house charged with intoxication.

There is no proof that he had been absent from his post of duty to enable him to obtain liquor, and there is not the slightest proof that he did obtain any liquor that day.

Instead of proving the relator guilty beyond a reasonable doubt, the evidence prepon derates strongly in his favor.

In no view can the conviction of the relator be justly sustained, and the proceedings should be reversed and the relator restored, with fifty dollars costs.

PRAtt, J., concurred; BrowN, P. J"., not sitting.

Proceedings reversed and relator restored, with fifty dollars costs.


author: HaediN, P. J.:

text:
    Frances M. Tindale, Respondent, v. Martha F. Powell, Appellant.

      JSjectment — actual occupation by the defendant for more than twenty years —proof of acts and declarations of the plaintiff’s grantor.

    When the evidence in an action of ejectment discloses an actual occupation of the premises in question hy the defendant and those under whom she claims for more than twenty years, and the evidence in other respects is conflicting, it is erroneous for the court to direct a verdict for the plaintiff.
    Where upon the trial of such an action one of the issues is whether the defendant’s predecessor in title occupied the premises under the plaintiff’s grantor or whether he occupied them claiming as absolute owner, the defendant may show acts and declarations of the plaintiff’s grantor indicating acquiescence upon his part in the defendant’s claim to absolute ownership; such evidence is competent as tending to show the relation of the parties to the premises.
    Appeal by the defendant, Martha F. Powell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 23d day of May, 1894, upon the verdict of a jury directed by the court after a trial at the Oneida Circuit, and also from an order entered in said clerk’s office on the 6th day of June, 1894, denying defendant’s motion for a new trial made upon the minutes.
    The action was originally brought hy George A. Tindale to recover the possession of the lands described in the complaint, which are situated at Clark’s Mills on the easterly side of the highway leading from Kirkland to "Westmoreland. After the trial of the action George A. Tindale died and his wife and sole legatee, the present plaintiff, was substituted.. Plaintiff claimed title to the lands in question from one Liberty Powell, and it was claimed that Powell derived his title from two sources, one-half acre from one Stephen Chappel under a deed of October 31, 1844, and the other acre and a half it is claimed he obtained by deed from Charles W. Powell, dated January 10,1876. Liberty Powell died March 26, 1886. No evidence was given on the trial that Liberty Powell, or either of his grantors, ever occupied the one-half acre or the acre and a half. The premises were occupied from 1845 until September, 1875, by Philo Powell, a brother of Liberty Powell, and after his death his widow, Harriett Powell, and the defendant occupied the premises until after the trial of this action. The widow died in December, 1892, and the defendant is a daughter of Philo Powell and one of six children who were the sole heirs and descendants • of Philo Powell. When Philo Powell moved.on to the one-half acre in 1845 there was an unpainted house and a small barn, and in 1851 a fence was built on the half acre upon the place occupied by the old fence, and this was built by Philo Powell. There was a fence built in 1851 or 1852, which inclosed both pieces of land in question, by Philo Powell and his sons, and he lived on the place at the time and continued to do so until the time of his death in 1875. ILe cultivated the place and raised crops on it every year, and afterwards the widow and the defendant, his daughter, occupied it, the evidence showing that he held himself out as owner of the premises. He planted trees on the place, both on the half acre and the acre and a half, and caused the trees to be grafted; the trees grew large; he moved the old barn back from the half acre piece by the piece added on by the building of the new fence. He kept the fence in repair around the place while he lived, and the premises were cultivated as farms usually are from 1845 to 1875 by Philo, • and subsequently by the widow and this defendant. It appears in the evidence that Philo and his widow paid taxes on the place during the time they occupied it, aird there is other evidence tending to show acts of adverse possession on the part of Philo Powell and by his wife and this defendant, and there is evidence to show that the acts were public and notorious in which they asserted ownership and possession thereof, and there is some evidence from which a jury might infer that Liberty knew of the claims made by Philo and his widow and the defendant, and from such evidence it might be inferred'lie never asserted that they were not the owners.

      Josiah Perry, for the appellant.

      8. J. Barrows, for the respondent.
   HaediN, P. J.:

TJpon all the evidence found in the appeal book we are inclined to the opinion that the case should have been submitted to the jury. We think the evidence- warranted a finding upon the important questions relating to adverse possession. It is provided in the Code that for the purpose of constituting adverse possession land is deemed to have been possessed and occupied where it is protected by a substantial inclosure or where it has been actually cultivated and improved. The evidence discloses an actual occupation for over twenty years. (Barnes v. Light, 116 N. Y. 34; Woodruff v. Paddock, 130 id. 618.) It was claimed during the trial by the plaintiff that circumstances were such as to rebut the presumption of adverse possession arising from the occupation by Philo Powell; with a view of establishing an explanation of the possession or claim of ownership of Philo, it was shown that in 1875 Liberty Powell built a house upon the premises. At that time he was a man of wealth, and his brother seems to have been in moderate circumstances, and it is a question upon the- whole evidence whether it was a brotherly act without pay, or whether it was an advancement upon the property by Liberty, with the knowledge on the part of Philo that ultimately the expenses for building the barn were to be accounted for. There was considerable evidence as to why the building was erected, and some evidence was given tending to show that it was erected by Liberty Powell because he was the owner of the premises, and that Philo assented to the idea that he was the owner of it. To meet that evidence the defendant offered to show that at the time Liberty Powell acquiesced in the fact that Philo Powell owned the premises and was building the house there for Philo. The evidence was excluded and an exception was taken. At a later stage of the case the defendant, in effect, offered to show by a witness “ that lie (the witness) was riding with Liberty Powell, and the latter told him that he was building this house for his brother Philo.” The evidence was excluded and an exception taken. We are inclined to think that as the issue then stood the offer ought to have been received to explain the relations of the parties to it. We think there should be a new trial.

Martin and Meewin, JJ., concurred.

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


author: Hardest, P. J.:

text:
    Kittie Crosby, as Administratrix, etc., of William Crosby, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Contributory negligence — its absence may be inferred from circumstances — violation by a railroad company of a city ordinance as to speed.

    Upon tlio trial of an action brought to recover damages resulting from a death caused by injuries alleged to have been received by reason of the negligence of a railroad corporation, the absence of contributory negligence upon the part of ■ the deceased may be shown from circumstances.
    If the facts and surrounding circumstances proved are such as to reasonably indicate that the accident might have occurred without negligence on the part of the deceased, the question as to contributory negligence should be determined by the jury.
    Where a city ordinance provides that cars shall not be propelled by steam within the city limits at a greater rate of speed than one mile in eight minutes, and there is evidence in a case which would warrant a jury in finding- that the train in question was moving over a street crossing at the rate of twenty-five miles an hour, it is erroneous to nonsuit the plaintiff.
    Appeal by the plaintiff, Kittie Crosby, as administratrix, etc., of William Crosby, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 13th day of November, 1893, upon the dismissal of the complaint directed by the court after a trial at the Onondaga Circuit before the court and a jury, with notice of an intention to bring up for review upon such appeal an order of said court made on the trial of the action dismissing the complaint and granting a nonsuit.

      Ceylon II. Lewis, for the appellant.

      Frank Iliseock, for the respondent.
   Hardest, P. J.:

Plaintiff’s intestate was killed by an engine of the defendant passing easterly on its track while crossing Geddes street in the city of Syracuse at about five-forty p. m. of the 11th day of November, 1892. He had been drawing materials to the canal and was passing from the canal bridge southerly along Geddes street; in his vicinity were five men on foot who stopped on the west side of the street to avoid the passing and repassing of a switch engine and to discover that the street was free, from moving trains. The deceased stopped his horse, hut at just exactly what distance from the tracks does not appear, though at the trial it was assumed to be about sixty-six feet. The train that caused the injury was approaching from the west on a curve, and with the headlight lighted, at a speed shown by some of the evidence of thirty miles an hour on a down grade. When plaintiff started to cross he was required to pass directly in front of the headlight of the switching engine, a few feet from it, so near as to be affected by the glare of its light. He passed over the switch track. There was a Solvay train near to him which usually crossed before No. 30, the train which caused the injury, but on this occasion at a speed of thirty miles an hour (as the jury might have found) No. 30 came to the crossing ahead of its schedule time. There had been flags used at the crossing to the knowledge of the deceased, but no flagmen were in attendance in discharge of such duty on this occasion. The men who usually performed such services were attending to other duties. The five men who were on the sidewalk awaiting an opportunity to pass apparently did not discover train No. 30 until it was within seventy-five feet of the crossing,-although they stood within five feet of the track on which the train was approaching. They narrowly escaped being injured. They point out the difficulties of seeing the approaching train. O’Neil, a witness called in behalf of the plaintiff, in describing the occurrences just preceding the accident, states that Horan was near to him, a little in front, and that he looked up the track and saw the passenger train coming and it was then about seventy-five feet west of the witness, and at that time there was no flagman there, and that as he saw the train he looked down the track to see if the track was clear and he saw a horse and wagon on the track and a man in the wagon; it was about in the center of the track; the forward wheel was in the center of the track that the train was on, the south track, at the time I looked to see. And he says when he first saw the train it was about seventy-five feet to the west, and then he saw the wagon get hit with the train, and that it only took about two seconds to accomplish all the things which he thus stated. lie says that the deceased “had the whip or lines in his hand when I saw him; he was looking, facing towards the train. lie was turned in his seat (indicating); and he was crouched over (indicating). The front wheels of his truck about that time were about in the center of the track; then the train struck his wagon ; the train struck the hind wheels ; at that instant I was probably fifteen feet from the south track.” There was some evidence tending to show that it was “ a very dark night; ” and one witness says that he could not see the outlines of the train; that he could just see the headlight, and did not hear the ringing of the bell. ' Tlxe switch engine had been passing up and down, and it had in use a blower, which caused it to make considerable noise, interfering with the discovery of other sounds ; and there is some evidence that the wind was in the east, which would cany the escaping smoke and steam in the direction of the approaching train, to the westward, and distribute it along the tracks to the west of the deceased ; and there were several buildings on the west side of G-eddes street which would obstruct the view of a person passing over the canal bridge to the crossings. The witness Horan testified that he was at the crossing and looked to the west and saw the train near the switch shanty, a little west of it, and that he called out to look out for the train, and as he looked he saw Crosby; the front wheels of his truck were just going over the north rail of No. 1 track. The witness adds: “ ITe turned around and looked up like that (indicating), and got up like that (indicating), and was going to hit the horse. That is the last I saw of him. Q. Looking towards No. 30? A. Yes, sir.” And he adds: “ He was looking up like that (indicating); he had the whip up like that (indicating), and that is the last I saw of him.” It appears that the trial judge put the nonsuit on the ground that the plaintiff was not free from contributory negligence. We think, under the evidence disclosed in the appeal book, that the question of whether the deceased was guilty of contributory negligence was one of fact, which should have been submitted to the jury. Since the trial at the Circuit we have decided Pitts v. The N. Y., L. E. & W. R. R. Co. (79 Hun, 546), and in that case it was held by this court that “ the absence of contributory negligence may be shown from circumstances.” It was also said in that case that “ if such facts and surrounding circumstances are shown as reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is for the jury, although there were no eye witnesses of the accident.” The opinion delivered in that case sufficiently refers to the authorities which are relied upon to support the propositions of law laid down in that case. We think the evidence in this case was such that the trial judge, in accordance with the views expressed in the case to which we have just referred, should have submitted the question whether the deceased was free of contributory negligence to the jury.

In Miller v. The N. Y. C. & H. R. R. R. Co. (82 Hun, 165; S. C. affd. by the Court of Appeals May, 1895) we referred to and followed the doctrine of Pitts v. The N. Y., L. E. & W. R. R. Co. (supra). (See, also, Chisholm v. The State, 141 N. Y. 246.)

(2) It appeared by the evidence that one of the ordinances of the city of Syracuse, in force at the time of the trial, provided, viz.: “No railroad company whose cars are propelled by steam shall propel said cars within the city limits at a greater rate of speed than one mile in eight minutes.” It was assumed by the trial judge that the evidence would warrant the jury in finding that train No. 30 “ was approaching the crossing from the west at the rate of twenty-five miles per hour.”

We are of the opinion that the evidence offered at the trial would have warranted the jury in finding the defendant guilty of negligence which caused the death of the plaintiff's intestate. We, therefore, order a new trial.

Martin and Merwin, JJ., concurred.

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


text:
    Anton J. Lorenz, by his Guardian ad Litem, Anton Lorenz, Respondent, v. Homer T. Jackson, Appellant, Impleaded with Edward P. Bailey.
    Malpractice— liability of a physician who informs Impatient that he has not sufficient shill to treat the case — verdict upon conflicting evidence.

    Upon the trial of an action brought to recover damages because of alleged malpractice on the part of the defendant, it appeared by the testimony of one of the defendants, who were the attending physicians or surgeons, that after examining the wound of the plaintiff he immediately announced that the wound was of a serious character; that ho did not regard himself as sufficiently experienced in surgery to property treat the case, and that he advised the father of the plaintiff, an infant, to call in the services of a more experienced surgeon. Another doctor, who was also a party defendant, was called to aid in the operation.
    Upon this branch of the case the court charged the jury, in substance, that if the practitioner frankly informed the patient of his want of skill, or the patient was in some other way fully aware of it, the patient could not complain of the lack of a skill when he knew that such skill did not exist. The jury rendered a verdict in favor of the plaintiff.

      Held, that the charge was correct.
    It is the duty of the court to accept a verdict rendered upon conflicting evidence, unless it is against the clear weight of the evidence.
    Appeal by the defendant, Ilomer T. Jackson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 31st day of March, 1894, upon the verdict of a jury rendered after a trial at the Oneida Oix’cuit, and also from an order entered in said clerk’s office on the 16th day of April, 1.894, denying his motion for a new trial made upon the minutes.
    The action was brought against the appellant and one Edward P. Bailey to recover damages resulting from malpractice. The plaintiff recovered a verdict for $3,000. Upon the trial of the action it appeared that plaintiff, while at work upon a railroad on the 17th of April, 1893, was engaged in removing ties, that a nail was found projecting from one of them, and a hammer was placed upon it and another hammer delivered a blow to the first one, and caused a piece of steel to enter the plaintiff’s left leg above the knee, the steel passing through two pairs of pants. Blood began to flow, and his father, in company with others, helped him to a handcar and he was removed about a mile to his home, and then walked some 442 feet from the handcar to his house. The wound was bathed by his mother with water, and shortly thereafter Dr. Jackson, the -appellant, who had been to some extent the family physician, was sent for, .and he on arriving examined the wound and was unable to discover the piece of steel which is supposed to have entered the limb of the plaintiff; he immediately announced that the wound was of a serious nature and character and that he did not regard himself as sufficiently experienced in surgery to properly treat the case, and advised the father and family of the plaintiff (the plaintiff then being some seventeen years of age) to call in the services of a more experienced and skilled surgeon. The conference resulted in sending for Dr. Bailey, who arrived at the house of the plaintiff about five o’clock in the afternoon, and began to take measures to examine the injuries received by the plaintiff, and he was joined by the appellant, Dr. Jackson, and they remained together in the treatment that was administered to the plaintiff. He was removed from his bed on to a table and ether was administered to him by the appellant, Dr. Jackson, while Dr. Bailey probed for the piece of steel, widening the wound in the limb, and thereafter applied bandages, and the appellant remained with the plaintiff during the night, administering to him hypodermic injections of morphine and atropia. The treatment continued for several days, until about the eighth day after the injuries were received when it was found that dry gangrene ensued, and Dr. Glass was called to attend the patient, and, finally, it was determined that the limb must be amputated, which was done on the 25th day of April, 1893. Yoluminous evidence was taken at the Circuit in respect to all the questions of fact that arose in respect to the treatment received by the plaintiff at the hands of Dr. Bailey and Dr. Jackson.

      Tuttle <& Hansom, for the appellant.

      Sayles, Searle <& Sa/yles, for the respondent.
   HaediN, P. J.:

A careful examination has been made of the several exceptions taken upon the trial without discovering any prejudicial error presented by them. At the close of the evidence no motion for a non-suit was made. The case was submitted to the jury on the general principles of law applicable to actions of malpractice, in an elaborate charge, to which no exception was taken.

In section 607 of Shearman and Redfield on Negligence it is said : “ If the practitioner, however, frankly informs the patient of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the lack of that which he knew did not exist.” The substance of the doctrine stated in the quotation just made was apparently approved in Small v. Howard (128 Mass. 131). (See Link v. Sheldon, 64 Hun, 632; S. C. affd., 136 N. Y. 1.)

During the charge the trial judge recognized the rule stated in the citations just made, and carefully instructed the jury in respect thereto, and afforded the jury an opportunity to relieve the appellant from liability by the application of the rule, if, in the judgment of the jury, the facts and circumstances disclosed by the evidence warranted its application. It must be assumed that the verdict of the jury in regard to the branch of the case referred to in the rule of law just mentioned was found adversely to the appellant. After weighing the evidence found in the appeal book, although very conflicting, we are constrained to adopt the rule in respect to the verdict that was stated in Graves v. Santway (25 N. Y. St. Repr. 1022; S. C. affd., 127 N. Y. 677). It was there said, in effect, that it is the duty of this court to accept a verdict rendered upon conflicting evidence, “ unless it is against the clear weight of the evidence.”

Having found no legal errors committed during the progress of the trial we are constrained to sustain the verdict of the jury.

Martin and Mekwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: HakdiN, P. J.:

text:
    The People of the State of New York ex rel. William J. Ranton, Respondent, v. The Board of Aldermen of the City of Syracuse and Others, Defendants, Impleaded with James Doyle, Appellant.

      Inspectors of election — compelled by mandamus to correct clerical errors and violations of the B lection Law — no appeal from the allowance of an alternative writ of mandamus — stipulation of a candidate to allow corrections.

    Inspectors of election are ministerial officers and may properly he compelled by. mandamus to make a further return of the results of an election, where it appears that the return made contains clerical errors and that the canvass of the votes cast was in some respects conducted in violation of flic Election Law. The granting of an alternative writ of mandamus is so much a matter of discretion that it is not the subject of review upon appeal.
    Where an election return has been made, but is irregular in that it does -not show that any person received any votes whatever, and an alternative writ of mandamus lias been issued sending back the return for correction and review, and the person who is apparently elected upon the face of the return moves to quash the writ, he cannot, by presenting on the argument of the motion a consent to certain corrections, avoid the force or necessity of the writ of alternative mandamus.
    Appeal by the defendant James Doyle from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of said court on the 31st day of January,, 1895, directing the issue of an alternative writ of mandamus directed to the board of aldermen of the city of Syracuse and certain other-persons, commanding them to return to the inspectors of election of the fourth district of the first ward of the city of Syracuse the return and certificate of the result of the election in said district, held on the 29th day of January, 1895, for further action thereon by said inspectors, and staying all proceedings by the board of aldermen as a board of canvassers to determine the results of said election; also from an order made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 23d day of February, 1895, denying his motion to vacate the above-mentioned order and to vacate the writ issued thereon.

      M. _51 Driscoll, for the appellant.

      L. L. Waters, for the respondent.

      Charles E. Ide, for the defendants.
   HakdiN, P. J.:

In People ex rel. Stapleton v. Bell (119 N. Y. 175) it was held that inspectors of election are ministerial officers.

In People ex rel. Fiske v. Devermann (83 Hun, 181) it was held that the granting of an alternative writ of mandamus is so much a matter of discretion that it is not the subject of review upon appeal. Following the case last cited we think that the appeal from the order, so far as it directs the issue of an alternative writ of mandamus, should be dismissed.

■ (2) The defendant James Doyle also appeals from the order made on the 18th of February, 1895, denying a motion made for an order setting aside and vacating the order granted at Special Term on the 31st day of January, 1895, ordering that a writ of mandamus issue out of and under the seal of this court, and for an order setting aside and vacating the writ of mandamus. Upon that motion the defendant Doyle offered to stipulate that the return and ■certificate of the canvass of votes be corrected by inserting the word “ received ” between the words “ Doyle ” and “ sixty-six,” between the words “ Ranton ” and “ fifty-four,” between the words “ Maloney ” and “four,” between the words “Dee” and “eighty-five” in said certificate of canvass of votes. The court refused to consider the stipulation for the reason that the motion was made on papers of relator only. From the affidavits found in the appeal book it is apparent that William J. Ranton was regularly nominated as a candidate for the office of alderman in the first ward of the city of Syracuse, to be voted for at the special election to be held in that ward on January 29, 1895, and it also appears that the defendant James Doyle was a candidate for the same office. According to the return filed in the city clerk’s office at the close of the election, it shows the election of the defendant Doyle to the office of aider-man of said ward over the relator by a plurality of only one vote. The returns from the fourth district are irregular in that they do not show in any form that any person received any votes whatever. From the affidavits it also appears that at the election a ballot was cast bearing the name of the relator, William J. Ranton, upon the face, and upon its back a paster of different color from the ballot, whieli paster bore the name of the defendant James Doyle. It also appears that when the ballot was opened by the inspectors on the canvass of the votes it was objected to as an improper and an illegal vote by an inspector, who called attention to the section of the Election Law relating to the proper position of pasters upon ballots cast at elections and relating to the color of such pasters. It appears the inspectors then laid the ballot aside and subsequently took it up and counted it for Doyle. After 'completion of the canvass Cawley, an authorized watcher for the relator, objected to the counting of the ballot in question on the ground that it was a ballot marked for the purposes of identification. However, the inspectors disregarded the objection, as they did the other, and counted the ballot for Doyle, who was thereby, upon the face of the returns, elected to the office of alderman of the first ward by a plurality of one vote over the relator. The inspectors did not attach said ballot to their return, but destroyed it with the other voted ballots and filed their return without any statement concerning it. The board of canvassers were about to adjourn and declare and determine the result of the election, using for that purpose the defective return in question among others, when the relator applied for and obtained the alternative writ requiring the board of canvassers and city clerk to send back the retaras of the fourth district to the inspectors for their further action thereon. It is quite manifest that the return is defective and that the clerical errors and other errors may be corrected by means of mandamus. (People ex rel. Munro v. Board of Canvassers, 129 N. Y. 469; People ex rel. Nichols v. Board of Canvassers, Id. 406.)

Section 114 of chapter 680 of the Laws of 1892 contains a provision in relation to marked ballots, requiring the inspectors or canvassers to write on the back of such ballot, “ Objected to because marked for identification,” or words in substance to that effect, and sign their names thereto and attach each of such ballots to the written statement of the result of the canvass. Section 115 of the same act provides that the inspectors shall make and sign a written statement showing, among other things, the whole number of ballots received for each office and the whole number cast for each person for such office and the whole number of ballots objected to because marked for identification, written out at length in words, and at the end thereof a certificate signed by the inspectors to the effect that the statement is in all respects correct. It is quite apparent that the inspectors have not complied with the statutory provisions; and we are of the opinion that the defendant Doyle had not the power by stipulation to cause the needed amendments to be made to the statement of the canvassers. We are of the opinion that the action of the Special Term was correct, and that its orders should be affirmed.

Martin and Merwin, JJ., concurred.

The appeal from the order directing the issue of an alternative writ of mandamus is dismissed.

Order refusing to set aside the writ affirmed, with ten dollars costs and disbursements.


author: TIardiN, P. J.:

text:
    Allie Lashaw, Respondent, v. Frederick E. Croissant, as Executor, etc., of Jeannette Marceau, Deceased, Appellant.

      Husband and wife— a wife's claim, for services rendered to a third person with tlte consent of her husband that she retain the consideration thereof— the husband may testify in her fawr against the estate of the deceased third person.

    Where a wife renders services and furnishes meals to a stranger under an agreement made between herself and her husband that in case she renders such services and furnishes such meals she alone shall receive the recompense therefor, and that it shall become her separate property, the common-law rights of the husband to his wife’s services are abrogated, and she may enforce the claim in her own name and right.
    In such case she does not derive her right by assignment from her husband, and the husband is not prohibited by the provisions of section 829 of the Code of Civil Procedure from testifying in behalf of his wife against the estate of the deceased person to whom the services were rendered.
    Appeal by tlie defendant, Frederick E. Croissant, as executor of the last will and testament of Jeannette Marcean, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ,of the cleric of Jefferson county on the 28th day of September, 1894, upon the report of a referee.
    The claim was presented to the executor and rejected, and by stipulation and approval of the surrogate it was referred to a referee, who heard the evidence and reported in favor of the claimant.

      Henry Purcell, for tlie appellant.

      Peter J. Q-uinn, for tlie respondent.
   TIardiN, P. J.:

On tlie lltb day of May, 1891, Jeannette Marcean, made and published her last will and testament, appointing the defendant her executor. Tlie will was admitted to probate after her death, which occurred on the 31st day of January, 1892. Plaintiff’s claim was verified December 9, 1892, and presented to the executor and by him rejected, and on the 19th of December, 1893, the parties entered into a stipulation that the claim be referred, and on the twenty-second of December the surrogate of Jefferson county, upon the stipulation, approved the reference therein agreed to, and on the twenty-second of December an order was entered in the clerk’s office gf Jefferson county appointing the referee to hear, try and determine. Plaintiff’s claim was for meals furnished during November, 1890, and at successive dates down to and including January 18, 1892, and for thirteen days’ attendance upon the testatrix from January 19 to January 31, 1892. In October, 1890, the plaintiff was the wife of Peter Lashaw, and was residing with her husband about sixty rods from the residence of the testatrix, who was upwards of eighty years of age and somewhat impaired in health. According to the testimony an arrangement was entered into between the plaintiff and her husband that she might have whatever compensation she received for her services and any supplies which she might render to or furnish to the testatrix. The husband in effect agreed with the wife that he did not want anything for the services which she rendered to the testatrix, or for the meals or supplies furnished to her, and in respect to them he emancipated his wife from all claim or interest by reason of any services to be rendered or supplies to be furnished. Upon ample evidence to sustain his finding the referee found: “ That Peter Lashaw, the husband of said plaintiff, at or about tlie time of the making of said contract, consented that his wife, the plaintiff, might furnish, prepare, cook and deliver to the said Jeannette Marcean said meals, and whatever she could get oil account of the same would be her property, and whatever arrangement she made with reference thereto would be her own.” A similar finding was made in respect to the services she should render for the testatrix. The referee also found: That the plaintiff, pursuant to such request and contract, stayed with and took care of the said Jeannette Marcean from that time until her death, January 31st, 1892, thirteen days; ” “ that the value of her services for said thirteen days was thirteen dollars.” He also found that the plaintiff delivered to the testatrix, at her house, 120 meals, and that the value of the same “ was seventeen cents each, amounting to $122.40.” The findings of fact, which have been quoted above, are challenged as being against the weight of evidence. After a careful perusal of the evidence, and weighing all the circumstances relating to the matters stated by the referee, and giving due weight to the contradictory evidence, we are of the opinion that the conclusions of the referee upon the evidence should be sustained. While the defendant produced some contradictory evidence and some facts and circumstances tending to challenge the evidence of the plaintiff, we are of the opinion that the referee properly judged as to the weight of the evidence, and that his conclusions should be sustained upon a view of the whole evidence found in the appeal book.

While we recognize the force of the rule laid down in Smith v. Ætna Life Ins. Co. (49 N. Y. 211), we are of the opinion that the findings of the referee in the case in hand are not against the clear weight of the evidence.”

In Roe v. Roe (14 Hun, 613) it was said: “Upon a review of a trial by the court or a referee the findings are not conclusive, but the whole evidence is open to examination by the appellate court. The appellant is at liberty to show that the findings are wholly unsupported by the evidence, or that they are against the weight of evidence, or that they are erroneous in any other respect.” While the review of the facts by an appellate tribunal is proper, it is under no obligation to arbitrarily adopt the conclusions of the trial court; yet great consideration will be accorded to its opinion, especially where there is evidence on both sides, and the mind of the court lias been called upon to weigh conflicting statements and inferences, and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the appellate court is not warranted in reversing upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course it should appear that the findings of the trial court were against the weight of evidence, or the proof so clearly preponderated in favor of a contrary result that it can be said with reasonable certainty that, the trial court erred in its conclusion. ( Westerlo v. De Witt, 36 N. Y. 340; Crane v. Baudouine, 55 id. 256; Sherwood v. Hauser, 94 id. 626; Baird v. The Mayor, etc., of New York, 96 id. 567; Lowery v. Erskine, 113 id. 52; Devlin v. The Greenwich Savings Bank, 125 id. 756; Barnard v. Gantz, 140 id. 249.)

A full consideration of the evidence does not lead us to the conclusion that the referee committed an error in his conclusions upon the whole body of the evidence before him.

(2) Undoubtedly, in the absence of any agreement, the meals delivered and services rendered would give rise to a cause of action in favor of the husband, although the meals were delivered and the services rendered by the wife, upon the theory that all her services and earnings belong to her hnsband, and that he can maintain an action to recover therefor. (Reynolds v. Robinson, 64 N. Y. 589.) Where the husband and a wife are living together he may appropriate the fruits of her labor, and in the absence of circumstances showing her intention to avail herself of the privileges conferred by the statute concerning the rights and liberties of married women, his common-law right is unaffected. (Birkbeck v. Ackroyd, 74 N. Y. 356.)

In Blaechinska v. H. Mission & Home (130 N. Y. 503), in pointing out the relations of husband and wife and her rights and privileges, YaNN, J., stated : “ When she worked for a stranger it was on her sole and separate account, and the Enabling Act protected her contract. When she worked for her husband it was on his account, and the statute did not apply.”

The case of Coleman v. Burr (93 N. Y. 17) was one where the services were rendered in administering a duty which the husband owed to an inmate of his family, and was not a case where she made a claim for services furnished to a third person, and is, therefore, unlike the case in hand.

We think the facts of this case, as well as the finding of the referee, are to the effect that before, the materials used in the meals were supplied, and before the services were rendered, tlie wife had become the absolute owner thereof, and the case, therefore, differs from Stamp v. Franklin (144 N. Y. 607), as in that case it was said: But, moreover, we think there was not sufficient evidence to have justified the jury, if the question had been submitted to them, in finding the claim belonged to the wife and not to the husband. * * * The most, we think, which the evidence tends to establish is that the husband authorized payment therefor to be made to the wife. This did not vest in her the legal title to the claim, assuming that under the statute of 1860 an agreement by the husband that the title to the board money should vest in her would be valid.” In the case in li^ind the evidence warrants the conclusion that, before any of the meals were delivered or any of the services rendered, there was a complete and valid understanding between tho plaintiff and her husband that all the services which she would render, as -well as all the materials which she should supply to the testatrix, should be for and upon her separate account, and, in effect, that she should become the owner of any and every indebtedness which should accrue against the testatrix. Under such circumstances we think that the plaintiff was the owner of the claim presented against the estate of the testatrix, and that the referee committed no error in awarding a recovery in favor of the plaintiff. The husband was called as a witness and substantiated the agreement alleged to have been entered into between himself and his wife, and the course of the trial was such that he was bound by the agreement, and when the testatrix’ estate pays for the meals and services rendered, to the plaintiff, liquidating the judgment in this case, there can be no claim asserted by the husband therefor. The plaintiff’s right of recovery does not rest upon an assignment of the claim or cause of action after it accrued; and, we think, therefore, that the plaintiff is not in the situation of air assignee of the claim, and that the husband was not an incompetent witness under section 829 of the Code.

We think the observation of Haight, J., in Burley v. Barnhard (9 N. Y. St. Repr. 591) is applicable to the case before us; he there said: “ The claim of the plaintiff was not derived through her husband. It is for services which she performed for the deceased, on her sole and separate account, which she had the right to do under the statute, and consequently Edwin Burley was not an interested party, and prohibited from testifying under section 829 of the Code of Civil Procedure.” That case was approved in Sands v. Sparling (82 Hun, 403), and in the course of the opinion delivered by Put-NAh, J., upon the question of the competency of the husband to testify under circumstances quite similar to those disclosed in the case in hand, he observed: “ But the witness was not the assignor of the claim against deceased under which the action was brought. He never had any legal interest in such claim. Hnder the evidence in the case the plaintiff was the only person who ever had any demand against the deceased; hence, the provisions of section 829 of the Code of Civil Procedure did not apply. (Burley v. Barnhard, 9 N. Y. St. Repr. 587; Porter v. Dunn, Executor, 43 id. 193.)”

Some exceptions were taken to rulings made by the referee which have received attention, and we are of the opinion that none of them require us to interfere with the result reached by the referee.

MaetiN and MeewiN, JJ., concurred.

Judgment affirmed, with costs.


author: IIaediN, P. J.:

text:
    Samuel H. Kenyon, Appellant, v. Lizzie Kenyon, Respondent.

      Divorce — evidence — referee’s opinion — the defendant’s failure to give exculpating testimony — its effect.

    The rule of evidence in an action for a divorce a vinculo is the same as in other civil actions.
    While a referee’s opinion in such cases is not a part of the record it may he examined in order to ascertain the principles which governed his judgment. Where upon the trial of an action for an absolute divorce direct evidence is given of the adultery of the defendant, and this is denied by her testimony, but, although able to do so, she fails to call the person with whom it is charged that she committed the act, the failure to produce such exculpating testimony, while not conclusive as to the fact in dispute, creates a strong presumption against the defendant and tends to strengthen the plaintiffs case.
    Appeal by the plaintiff, Samuel IT. Kenyon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Madison county on the 15th day of January, 1895, upon the report of a referee dismissing the complaint.
    Plaintiff’s complaint avers that the defendant has committed adultery, and alleges “ That the said defendant, on or about the 31st day of March, 1894, in the town of Lebanon, in said county of Madison, N. Y., and at the hop kiln of Morris Campbell in said town, did commit adultery and have carnal connection with one Charles C. Green; and that the said defendant did, at various times between the first day of December, 1893, and this action, commit adultery and have carnal connection with the said Charles C. Green.” It is alleged that the parties were married on the first of June, 1892, and that they continued to live together as man and wife until about the 20th of October, 1893. The answer admits the marriage and that the parties lived together as man and wife until the 20th day of October, 1893, and that they never had any issue, and denies the other allegations of the complaint. The referee found as a conclusion of fact, viz.: “ That the defendant has not been guilty of adultery as alleged in the plaintiff’s complaint and ordered judgment dismissing plaintiff’s complaint. The report was presented to a Special Term in January, 1895, held in Onondaga county, and the report was confirmed, and thereupon the judgment appealed from was entered in Madison county on the 15th day of January, 1895. Exceptions were filed by the plaintiff to the conclusion of fact already stated and to the conclusion of law already stated.

      S. B. Oloyes and H. B. Co man, for the appellant.

      J. A. Johnson and S. Perry /Smith, for the respondent.
   IIaediN, P. J.:

Allen v. Allen (18 Wkly. Dig. 184; S. C. affd., 101 N. Y. 658, and reported in 4 East. Rep. 259) is an authority holding that “ the rule of evidence in an action for divorce a vinculo is the same as in other civil actions.” In the course of the opinion delivered in the General Term in that case BoaedMAN, J., said : “ While we may not examine the referee’s opinion to ascertain what he decided, we may learn therefrom the principles governing his judgment.” In Murray v. Fox (39 Hun, 116), near the close of the opinion, Bead-ley, J., says: “ And, although the opinion is no part of the record, it may be referred to for some purposes. (Snyder v. Snyder, 96 N. Y. 88; Allen v. Allen, 18 Wkly. Dig. 184.) ”

Having carefully read and studied the evidence found in the appeal book, we have reached a different conclusion from the referee upon the important issue of fact tried before him. Archie Campbell, a witness called for the plaintiff, testifies positively that he witnessed the defendant committing an act of adultery with one Green on the 31st of March, 1894. Nothing appears in his testimony rendering him, apparently, unworthy of credence. The defendant, however, when a witness, denied the circumstances related by Campbell and sought to give circumstances tending to support her evidence. Neither pai'ty called Green as a witness upon the trial, and the learned referee, in the opinion which he delivered in connection with liis report, refers to that circumstance. He says: Besides this, we think Green should have been called to corroborate him (Campbell), if not to the fact of adultery, to such surrounding circumstances as he would have been obliged to testify to. * * * In this case Green has not been called by either side. It was not the duty of the defendant to show that she was not guilty of adultery; it was the duty of the plaintiff to establish the fact affirmatively, and to prove such circumstances that the defendant would be compelled to establish her innocence by all the evidence that she could procure for that purpose. Green lives in the neighborhood of both parties to this action and could readily have been put on the witness stand, but, without excuse or explanation, he has not been sworn. The fact that he was not called by the plaintiff surrounds his case with suspicion and leaves doubts and uncertainties in existence which might possibly have been removed by his evidence. It is known to the referee that Green and the plaintiff have been intimate associates and friends, and we think he should be called as a witness, for if he declined to admit or deny the alleged adultery, as he probably would have a right to in court, he could have testified whether he was in company with the defendant any time that evening, and probably other circumstances of importance in the case.” We are inclined to think the referee laid an erroneous rule upon the plaintiff in respect to the absence of Green as a witness.

In Rider v. Miller (86 N. Y. 501) the defendant was charged with having committed a fraud in obtaining a deed through the instrumentality of one Schooley, who was present and took part in the negotiations and transaction with the grantor. The defendant did not call Schooley as a witness, and in the course of the opinion delivered in that case it was said that the omission bore very much against the defendant and tended to strengthen the plaintiff’s case.

In Gordon v. The People (33 N. Y. 501) it was said that an omission to produce evidence which will exculpate is not conclusive of the fact in dispute; but that the absence creates a strong presumptive evidence against the party who might thus have called to his aid the testimony omitted; and that the force of such circumstance should be left as a question for a jury or trial court to consider. In the course of the opinion, at page 509, it was said, in speaking of the absence of such evidence, viz.: “In a doubtful case it would justify the jury in resolving the doubt against him ; ” citing numerous cases to sustain the proposition.

In Schwier v. N Y. C. & H. R. R. R. Co. (90 N. Y. 558) there was an omission to call the engineer, and evidence was given warranting certain inferences which presumptively he might have rebutted, and in speaking of the absence of his testimony, DaNFOBth, J., says: “ It was not given, and while the omission to call the engineer as a witness is not evidence against the defendant of the existence of any fact, it is cause for taking such testimony as is in the case — and which, if untrue, he might have contradicted or explained — most strongly against it. (Bleecker v. Johnston, 69 N. Y. 309.)”

In Crary v. Crary (18 N. Y. Supp. 753; S. C., 46 N. Y. St. Repr. 307) the doctrine just referred to is approved, and near the close of the opinion in People v. Hovey (92 N. Y. 554) the same doctrine is referred to, and Rugeb, Oh. J., says: A jury would have the right to infer that the evidence of an eye-witness to a transaction would not be favorable to a party who voluntarily excluded such witness from testifying in the case.”

In Byrne v. B., C. & N. R. R. Co. (58 N. Y. St. Repr. 128) it was said : “ A weak case for plaintiff is made strong whén a witness who could contradict it is not called by the defendant.”

We are inclined to the opinion that the learned referee did not apply the rule sustained by the authorities which we have referred to. It is very obvious from the course of the trial and the facts and circumstances developed therein, that had the defendant called the witness Green to the stand, if the version which she gives is a correct one, lie would liave sustained her. An omission to call him gives rise to a strong presumption that he would not so testify; that he would not deny the facts and circumstances or the details of the overt act stated by the witness Campbell.

The foregoing views lead us to the conclusion that the referee fell into an error in reaching the conclusion stated in his report.

Considerable evidence was given relating to another occasion when the defendant is alleged to have committed adultery, but we forbear to comment upon that inasmuch as a new trial may develop a new state of facts and further evidence than now appears before us.

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

MARTIN and MeRwix, JJ., concurred in result.

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


author: ITARDIN, P. J.:

text:
    John Franey, Appellant, v. Alvin C. Smith, Respondent, Impleaded with Heman T. Smith and John M. Wilson, a Third Person.

      Supplementary proceedings to secure property of the judgment debtor in the hands of a third person ■ — failure to state the residence of the judgment debtor — county judge without jurisdiction — rights of the judgment debtor.

    In supplementary proceedings taken to reach property of a judgment debtor alleged to be in the hands of a third person, the county judge of Broome county ordered the third person to appear before a referee at his office in Deposit, Delaware county. The affidavit which the plaintiffs attorney presented to the county judge as the basis of the proceeding failed to state the residence of the judgment debtor either at the time when the affidavit was made or at the time when the order in question was granted. It did state that in 1884, eight years before the order was granted, his residence was jn Delaware county. The county judge subsequently refused to make an order directing the property to be paid over.

      Held, that the county judge of Broome county had no jurisdiction- in the premises and that the order was properly refused;
    That where the money so attempted to be reached is in the hands of a constable,1 collected by him upon an execution in favor of the judgment debtor, the latter is, in a sense, a party to the proceeding, and is entitled to notice thereof.

      Appeal by tlie plaintiff, Jolm Franey, from an order of tbe county judge of Broome county, dated October 4, 1892, denying a motion made by tbe plaintiff for an order requiring Jolm M. Wilson, a third person, to pay to tbe plaintiff’s attorney moneys alleged to be in bis bands belonging to tbe defendant Alvin G. Smith.
    On tbe 4th day of October, 1892, tbe county judge of Broome county, on a notice of motion and tbe referee’s report, bearing date March 31,1890 r “ Ordered, that tbe motion herein be and tbe same is hereby denied upon tbe ground that tbe county judge of Broome county bad 210 jurisdiction to make or grant tbe order in supplementary proceedings herein.” By tbe affidavit of tbe attorney for tbe plaintiff it appears that a judgment was recovered and the roll was filed and docketed in Broome county, and that a transcript of tlie judgment was filed in tbe office of tbe clerk of tbe county of Delaware on tlie 30th of October, 1884; that an execution was issued thereon against Alvin 0. Smith and Hernán T. Smith, tlie defendants, on tbe 27th day of October, 1884, to tbe sheriff of tbe county of Broome, and also on tbe 2d day of December, 1884, to tbe sheriff of Delaware county “where said judgment debtor, Alvin 0. Smith, then resided, and that such execution has, within the ten years last past, been returned wholly unsatisfied.” In the affidavit it is further stated that John M. Wilson has property of said judgment debtor, Alvin C. Smith; “is indebted to said Alvin C. Smith for moneys collected and received by him, to and for tbe use and benefit of said Alvin 0. Smith, in an amount exceeding $10, to wit, $120, or upwards; that said John M. Wilson resides, or has an office for the regular transaction of business in person, at Deposit, Delaware county, N. Y.” That affidavit was verified on the 17th of March, 1890; thereupon tbe county jndge of Broome county, on the 18th day of March, 1S90, granted an order appointing a referee to take testimony and ordered said Wilson to appear before the referee at his office in Deposit, Delaware county, on the twentieth of March. The referee certifies that, in pursuance of tbe order, at tbe time and place mentioned in it, tbe plaintiff appeared by counsel and John M. Wilson by counsel and answered; that tbe proceedings were adjourned to March twenty-eighth, and on tbe 28th of March, 1890, the plaintiff again appeared, and Wilson appeared in person, and at tbe request of plaintiff’s attorney and consent of "Wilson the examination was adjourned to March thirty-first, and on March 31, 1890, "Wilson was sworn and examined and he disclosed the fact that he had moneys belonging to Alvin C. Smith, the judgment debtor, at the time of the service of the order upon him.
    The referee made a report of the proceedings before him, bearing date March 31, 1890, in which was incorporated the testimony of John M. "Wilson, as follows:

      “ I am the John M. Wilson named in the affidavit and order and reside in the village of Deposit, Delaware county, am a constable of the town of Deposit in said county. On the 4th day of March, 1890, a judgment was rendered by L. T. Freeman, a justice of the peace of the town of Deposit, in favor of the defendant, Alvin C. Smith, and against one Jerry E. Doolittle, for the sum of one hundred and sixty-seven dollars and ninety-two cents damages and seven dollars and ten cents costs. This judgment was recovered in an action in which a warrant of attachment was sworn out by the said Alvin 0. Smith. I levied the attachment on a quantity of hay and on a horse and mowing machine. On the 15th day of March, 1890, an execution on said j udgment was issued by the said justice and placed in my hands commanding me to collect the full amount of the judgment and costs. Tinder that execution I levied upon the same property that I had previously attached in the action. I have since received of the judgment debtor the full amount of the judgment, costs and expenses, amounting in the whole to $195.17; my costs, poundage and expenses of taking care of the property, included in the above amount, is $20.15. At the time of the service of this order on me I had received and had of the above-named amount the sum of $120.00, and I still have the samé in my possession.”
    A notice made on the 12th day of May, 1890, was served upon Wilson and upon Alvin C. Smith, to the effect that an application would be made on the 26th of May, 1890, for an order requiring Wilson to pay the plaintiffs attorney in this action the money in his hands belonging to Alvin C. Smith. The proceedings .were brought before the county judge on the fourth of October, and the county judge, after hearing counsel for the plaintiff and counsel for the defendant Alvin 0. Smith in opposition to the motion, made the order appealed from.

      Arthur More, for the appellant.

      A. Mumford, for the respondent.
   ITARDIN, P. J.:

The affidavit used before the county judge of Broome county failed to state facts sufficient to confer jurisdiction upon the county judge of Broome county. The affidavit presented to the county judge did not state the residence of Alvin C. Smith at the time the order was granted, nor liis residence at the time the affidavit was made. It does state, however, that his residence was in the county of Delaware at the time of issuing the execution in the year 1884. Merrill v. Allin, 46 Hun, 623; S. C., sub nom. Merrill v. Allen, 13 N. Y. St. Repr. 20.) In the course of t]ie opinion delivered in that case BARKER, J., said, in speaking of proceedings against a third party who was indebted to the judgment debtor, viz.: “When proceedings are taken against a debtor of the judgment debtor for the purpose of ■securing an application of an indebtedness toward the payment of the judgment, where the execution is in the hands of the sheriff, as in this case, the judgment debtor is, in a sense, a party to such proceedings. Such remedy is resorted to for the purpose of reaching his property and converting it to a particular purpose. Iiis interests are directly involved in the procedure. In order that he may protect his rights, so far as they are involved by the proceeding, provision is made in section 2464 that no receiver shall be appointed without notice is given to him, if he can be found in the State.”

It is said further, in the course of the opinion in that case, that the county judge did not have jurisdiction over the subject-matter, and an order affecting the proceedings attempted to be had before the county judge of Ontario county was affirmed. That case was referred to with approval by Judge MartiN in delivering the opinion in Schenck v. Erwin (63 Hun, 104), and we are inclined to think the reasoning of the learned judge in the latter case sustains the order of the county judge in the proceedings now before us. We think the order should be affirmed, with costs.

Martin and MerwiN, JJ., concurred.

Order affirmed, with ten dollars costs and disbuiisements.


author: HARDIN, P. J.:

text:
    Same v. Same.
   HARDIN, P. J.:

The views expressed in the opinion in the preceding case lead to-an affirmance of the order in this.

MaetiN and Merwin, JJ., concurred.

Order affirmed.


author: IIARDIN, P. JT. :

text:
    Frank Rhodes, Respondent, v. Morris Carr, Appellant.

      Appeal to a •Gounty Gourt — costs.

    The plaintiff in an action brought in the Municipal Court of the city of Syracuse appealed to the County Court, where a new trial was had in which the plaintiff did not recover a sum which would have been sufficient to carry costs if the-action had been brought originally in the County Court; no offer was made by either party to the action to take or allow judgment as provided for by sections 3070, 3071 and 3072 of the Code of Civil Procedure.

      Held, that the plaintiff was not entitled to recover costs in the County Court.
    Appeal by the defendant, Morris Carr, from an order of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 22d day of March, 1895, denying the defendant’s motion for an order striking the plaintiff’s costs-from the judgment rendered in the action and directing the Onondaga county clerk to insert the defendant’s costs therein.
    Plaintiff brought an action in the Municipal Court of the city of Syracuse and recovered the sum of thirty-eight dollars and seventy-one cents damages. Defendant appealed to the County Court of Onondaga county, where a new trial was had and a verdict was rendered for the plaintiff for the sum of thirty-eight dollars. Judgment for that sum was entered, with seventy dollars and eighty-six cents costs. A motion was made for retaxation of costs, which was denied, and the taxation was affirmed, without costs of the motion. No offer was made to take or allow judgment by either party hereto as provided by sections 3070, 3071 and 3072 of the Code of Civil Procedure.

      JL line, Shove <& Lxtdington, for the appellant.

      Talbott c& Oollins, for the respondent.
   IIARDIN, P. JT. :

Chapter 522 of the Laws of 1885 amended section 3010 of the Code of Civil Procedure. In the last part of the section are found these words: "If neither party make an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover his costs upon the appeal.” That section fell under construction in McKuskie v. Hendrickson (128 N. Y. 555). In the course of the opinion it was said: “ There is no provision in the Code giving the plaintiff costs in such a case against the defendant where the recovery is for less than $50, and no laiiguage is used indicating that such was the legislative intention. The only way in which plaintiff can secure his right to costs in such a case as this is by making an offer to take judgment for a sum specified, and then if the defendant refuses to accept the offer he will be liable to costs unless the recovery is more favorable to him than the 'offer. Here the plaintiff could have offered to take the judgment in the County Court for thirty, dollars, or any other sum not exceeding thirty-five dollars, and could thus have secured his right to costs.” The rule laid down in the case from which the quotation has been made seems to apply to the case in hand, and the case was decided in 1891, subsequent to the decision made by this court in Sheehan v. Buller (24 Wkly. Dig. 168) in April, 1886, and approved in Munson v. Curtis (43 Hun, 217) in January, 1887.

Inasmuch as the plaintiff did not recover-a sum sufficient to carry costs if the action had been brought originally in the County Court, he is not entitled to recover the costs entered in the judgment. (Sherman v. Shisler, 6 Misc. Rep. 203.)

It seems to follow that the order of the County Court is erroneous and should be reversed.

MARTIN and MeewiN, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and directions given to the clerk of Onondaga county to strike from the judgment the costs entered therein in favor of the plaintiff.


text:
    Betsey Dutcher, as Administratrix, etc., of William Dutcher, Deceased, Respondent, v. Horatio S. Dutcher, Appellant.

      Executor and administrator — agreement made before Ms a/ppointment — an agreement to take all the personal property of an intestate and support his widow, the administratrix — conversion.

    In an action brought by an administratrix to recover damages resulting from the alleged conversion of personal property belonging to her intestate, it appeared that the plaintiff was the widow of the intestate; that he left three sons and two daughters; that before the widow became administratrix an agreement was made between her and her sons, by which all the personal estate of the intestate should be taken by the defendant, one of the sons, and that in consideration of this transfer the son should maintain the widow at his own home during the term of her natural life, and that he should pay the funeral expenses of the intestate and the debts of the estate. The defendant offered to show, upon the trial of the action, that although the daughters did not j oin in making this agreement they subsequently ratified it, but no ratification by them was alleged in the answer. The evidence was rejected.

      Held, that the agreement could not be enforced;
    That the widow, before her appointment as administratrix, had no title to her husband’s estate;
    That the defendant was aware of the facts and circumstances relating to his father’s estate, and must be presumed to have known that the widow could not bind the daughters who were not present when the agreement was made;
    That as the defendant had not in good faith acquired the legal title to the property, his refusal to surrender it on demand was a conversion.
    Appeal by tlie defendant, Horatio S. Dutcher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 24th day of October, 1894, upon the verdict of a jury rendered after a trial at the Oswego Circuit, and also from an order made on the 19th day of October, 1894, and entered in said cleric’s office, denying the defendant’s motion for a new trial made on the minutes.
    The plaintiff’s complaint alleges that William Dutcher, at the time of his death, was the owner and in possession of the articles of personal property mentioned in the complaint, and that they were of the value of $300, and that he died in the town of Con-stantia on the 6th day of March, 1893, aud that on the 8th of February. 1894, Betsey Dutcher was appointed administratrix and qualified as such, and that on the 3d of March, 1894, she, as such. administratrix, demanded possession of all the property mentioned in the complaint, and the defendant refused to deliver the same, .and, therefore, the plaintiff seeks to recover damages for the convex-sion of the same. The answer admits the death and the appointment and qualification of the plaintiff as administratrix. The jury rendered a verdict for the plaintiff of $240.

      O. M. Reilly, for the appellant.

      Piper c& Rice, for thq respondent.
   HakdiN, P. J.:

In March, 1893, "William Dutcher died, leaving him surviving his widow and five children, and on the 8th day of February, 1894, Betsey Dutcher, his widow, was appointed his administratrix and .took upon herself the duties of such. After having made a demand •of the personal property in the possession of the defendant at the 'time such demand and such refusal thereof were made, and which are particularly described in the complaint, she brought this action for conversion of the same. In the third paragraph of defendant’s answer it is alleged that on the 6th of March, 1893, the plaintiff and ■defendant, “ together with Wm. II. Dutcher and Washington N. Dutcher, who are brothers of this defendant, and sons of the said Wm. Dutcher, deceased, made and entered into an agreement, by the terms of which the plaintiff herein was to come and live with this defendant and to make her home with him, as she should live, and that defendant should support, maintain and provide for said plaintiff at his said home and should pay all expenses and ■debts of said deceased, including funeral expenses of his said father, and in consideration of said agreement so made and entered into between the said plaintiff, Wm. II. Dutcher, Washington N. Dutcher and this defendant, all of the personal property and effects of the said Wm. Dutcher, deceased, were to be delivered over to this defendant, and were to be his absolutely.” The answer also alleges that pursuant to the agreement the property described in the answer was delivered to the defendant. The answer further alleges that the plaintiff, Wm. II. Dutcher .and Washington N. Dutcher were, at the time of the contract the vonly heirs .at law and next of kin of the said Wm. Dutcher, deceased, and tlie only creditors and persons interested in said estate.” It is also alleged that tlie plaintiff, pursuant to the arrangement, on or about the 8th of March, 1893, went to live with the defendant at his home and was supported and provided for by him from the 8th of March, 1893, up to the 30th of December, 1893, when the plaintiff herein, of her own account and without any fault on the part of this defendant, left his said home and has not since been there.

During the trial it appeared that the deceased left three sons and two daughters, in all five children. That at the time of the alleged agreement the sisters were not present. There was no averment in tlie answer that the sisters took part in the agreement, nor was it alleged that they ratified the agreement; however, upon the trial, -it was claimed that after tlie agreement was made the two sisters ratified the same. It.is to be observed that the defendant in his offer stated in effect that at the time tlie agreement was entered into between the three persons and the widow, the sisters did not take part therein, as it is alleged that they subsequently ratified the agreement.

In the offer the defendant claimed to show that all the personal estate which was left by 'William Dutclier should be taken by the defendant, and that in consideration of that he should maintain and support the plaintiff at liis home during the term of her natural life, and that he should also pay the funeral expenses and' whatever expenses there were or debts against the estate; and that he was to have all of tlie property for supporting the plaintiff during her natural life and paying the funeral expenses and debts, and that the agreement was by parol. The evidence was objected to on sundry grounds, among others that it was immaterial and incompetent and inadmissible under the pleadings. The offer was rejected and the evidence mentioned therein excluded, and the defendant took an exception.

At the time of the alleged agreement the plaintiff was not adminis-tratrix of the estate. It is claimed, however, in behalf of the defendant that, as she was subsequently appointed, the agreement which she made before her appointment was binding upon her as administratrix. We think the offer was not in accordance with the allegations of the answer.

In Smith v. Robinson (30 Hun, 273), after discussing tbe rule which, is to the effect that letters of administration when granted have relation to the time of the death of the intestate and legalize all the intermediate acts of the administrators, it was said by BARKER, J., at page 273, that the administrator is not permitted to question the validity of his own agreements and contracts, which he may have entered into in good faith prior to his appointment, concerning the property and debts of the intestate.” And he adds : “ Without the protection of this rule, of law, great wrong and injustice would at times be done to innocent persons trading and dealing with an individual in the actual possession of the assets belonging to the estate of the deceased person.” In the case in hand the defendant was aware of the facts and circumstances relating to his father’s estate, and must be presumed to have known that the widow had no legal right to bind the heirs at law who were not present at the time of the alleged agreement, and presumptively he knew that the widow, before having been appointed administratrix, had no legal title to the property. It is difficult, therefore, to say, upon the evidence disclosed at the trial or upon the circumstances in addition thereto embraced in the offer, that the defendant was acting in good faith, or that the widow had the full right to sell or transfer the property left by his deceased father. The legal title to the property came into the possession of the plaintiff and she received letters of administration, and when she made a demand for the possession of the property she was acting in behalf of all the heirs at law as well as herself. Inasmuch as the defendant had not acquired, in good faith, the legal title to the property, lie wrongfully refused to deliver possession of the same when a demand was properly made by the representative of his father’s estate, to whom the' legal title passed upon the appointment of the widow as administratrix.

The case in hand differs from Allen v. Eighmie (9 Hun, 201), as in that case the defendant was the only next of kin of the decedent and plaintiff was his widow, and the agreement entered into between them was such an one as contemplated a payment by the defendant of all the debts and demands against the estate, and the court, therefore, held that the agreement made before the plaintiff’s appointment was binding and was properly pleaded in the answer to the complaint, which sought to recover moneys that had come to the hands of the defendant. In the case in band tbe sale of tlie property-does not seem to have been made in terms, but it was rather a personal agreement attempted to be entered into by the widow with one of the sons of the deceased, looking to her own personal advantage rather than to the adjustment of the estate in the usual formal mode.

In Bellinger v. Ford (21 Barb. 314), after stating that the general rule that letters testamentary when issued relate back to the death of the testator and legalize all intermediate acts, Bocees, J., said : “ But this must be understood to cover those acts only which might have been done had he been executor at the time, and since the Revised Statutes the law of relation is limited still-more in its application.”

In Deobold v. Oppermann (111 N. Y. 539) Ruger, Ch. J., said: “We conceive it to be beyond the power of an executor or administrator to bind the estate they represent to any use of its funds, by contract with third persons having knowledge of the character of the property transferred, except in the ordinary and usual course of administration of the trust, and in furtherance of its objects. * * * It -would bo contrary to the policy of the law to allow an administrator, at the outset of his administration, by contract, to place the funds of the estate beyond the reach of the court and irreclaimable until after all the duties of administration have been performed by the administrator.” It is apparent from the proofs given and from the proposed offer, that the plaintiff, administratrix, was not the only person entitled to the beneficial ownership of the intestate’s property,” and she did not hold the estate exclusively in her own right. The case, therefore, does not fall within the rule mentioned in Blood v. Kane (130 N. Y. 514). (See, also, Matter of Mullon, 145 id. 104; 39 N. E. Rep. 822.)

We think the exceptions taken at the trial to the rulings of the court in respect to the offer do not- present errors requiring us to disturb the verdict. It is suggested in behalf of the appellant that the property in question belonged to the widow under the statute of 1842, and that she had a perfect right to do with it as she saw fit, and that the same was exempt from the creditors of her husband. We do not find that question was raised at the trial. W e, therefore, find no occasion to express an opinion upon that view of the case. The foregoing views lead to the conclusion that the order denying the motion for a new trial and the judgment should be sustained.

MartiN and MerwiN, JJ., concurred.

Judgment and order affirmed, with costs.