author: Mayham, P. J.:

text:
    Canton Lumber Company, Appellant, v. James Spears and Others, Respondents.
   Judgment affirmed, with costs.—

Mem. by

Mayham, P. J.:

This action was prosecuted to set aside a deed of a saw mill and water power, known as the Gage Saw Mill, executed by the defendant William Kimball to the defendant James Spears on the 4th of December, 1893, and to have it adjudged that such deed was void, and also for a decree directing the defendant Kimball to execute to the plaintiff a deed of such premises, and for such other relief as the court might deem equitable. The case was tried before Justice Landon, without a jury, who decided that the plaintiff was not entitled to recover, and that the deed executed by the defendant Kimball to the defendant Spears was a proper and valid conveyance, and directed that the plaintiff’s complaint be dismissed, with costs in favor of the defendants, Kimball and Spears. The learned trial 3*udge, in handing down liis decision, accompanied it by an elaborate and carefully considered opinion, in which, after a full examination or the records and the briefs and arguments of the respective counsel on this appeal, this court fully concurs. Judgment must, therefore, be affirmed on the opinion of the court below. Judgment affirmed, with costs.

Putnam, J., concurred; Herrick. J., not acting.


source: Caselaw Access Project

license: Public Domain

text:
    Harry L. Minchin, Appellant, v. Charles D. Gardner and others, Respondents.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. No opinion.


text:
    The First National Bank of Ballston Spa, Respondent, v. Carolina Oil and Creosote Company and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Jennie May Billings, an Infant, Respondent, v. Frances O. Tweedie and Others, Appellants.
   —Judgmentaffirmed, with costs. No opinion.


text:
    Mary A. Moore, Respondent, v. James Cleary, as Administrator, etc., Appellant.
   Judgment affirmed, with costs. No opiuion.


text:
    Merriman J. Lester and Another, as Overseer, etc., Appellants, v. Hermon Worden and Others, Respondents.
   Judgment affirmed, with costs. No opinion. Mayham, P. J., not sitting.


text:
    Abijah Weston and Others, Respondents, v. Henry Lovejoy, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Annie Rutherford, as Administratrix, Appellant, v. The Town of Madrid, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    The People of the State of New York, Respondent, v. George Nelson, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Francis W. La Rose, as Executor, etc., Appellant, v. John G. Smith, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Truman Jones, Appellant, v. Ætna Insurance Company and Another, Respondents.
   Judgment affirmed, with costs. No opinion.


text:
    Lulu R. McDowell, an Infant, Appellant, v. Robert D. Williamson, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Isban Hess, Respondent, v. Bridget Barnwell and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


author: Herrick, J.:

text:
    T. H. Benton Crane, as Receiver of the Property of Isaac C. Shuler, Appellant, v. Elizabeth N. Shuler, Alice M. Booth, Henry A. Booth, Individually and as Executor of the Will of John Booth, Deceased, Respondents, Impleaded with Others.
   Judgment affirmed, with costs.—

Herrick, J.:

The defendants Henry A. Booth and Alice M. Booth were not parties to the action brought by the First National Bank of Amsterdam against Elizabeth N. Shuler and others, and, therefore, are not bound by the proceedings in said action, the findings of the referee therein, or the judgment thereon. The question of fact litigated in this action, as to the payment of the mortgage sought to be foreclosed, was not in issue in the former action I have referred to. The trial court has found that the mortgage in question has been fully paid and satisfied, and it has also found that such payment and satisfaction was made by the husband of the defendant Shuler before he was insolvent, and was made for sufficient consideration, that is, c.n agreement by his wife to execute with him deeds for the conveyance of certain real estate, whereby her right of dower therein would, be released. Upon an examination of the record in this case it appears that there was some evidence to sustain these findings of fact. We consequently, under repeated decisions of this court, are not at liberty to reverse such findings. Standing unreversed, they effectually dispose of plaintiffs cause of action. As an original proposition, I should feel inclined to hold that the plaintiff’s objection to the testimony of the defendant Shuler of transactions and conversations with her deceased husband were incompetent under section 829 of the Code, but the cases of Uhlman v Brownell (19 N. Y. St. Repr, 18); Gillies v Kruger (33 Hun, 314; affd., 102 N. Y. 066), constrain meto hold to the contrary. Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.


text:
    William Moore, Appellant, v. Simeon Brown, Respondent.
   Order affirmed, with costs and disbursements. No opinion.


text:
    Concezio Del Sejnore, as Administrator, etc., Respondent, v. James A. Hallinan and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


author: Mayham, 1?. J.:

text:
    Edward H. Monihan, Respondent, v. Thomas Liddle, as Sheriff, etc., Appellant.
   Judg-1 ment affirmed, with costs.—

Mayham, 1?. J.:

The complaint in this action charges the defendant, as sheriff, with wrongful taking and wrongful detaining from the possession of the plaintiff a large quantity of boots and shoes and store fixtures belonging to the plaintiff of the value of $800. The defendant, in his answer, denies the wrongful taking or detaining of the chattels described in the plaintiff’s complaint, and sets up, by way of defense, the recovery of a judgment in the Supreme Court in favor of the P. Cox Shoe Manufacturing Company, for the sum of $046.04, against one Miles Cooling, and the docketing of that judgment in Montgomery county, where the goods were alleged to have been converted; the issuing of an execution upon the same against the property of Cooling, in whose possession the goods alleged to have been taken were, and that said property was seized and held under and by virtue of such execution. On the trial of this issue before the referee, it was stipulated in open court between the parties that the value of the goods was $610; that the allegations of the answer relating to the recovery of a judgment and the issuing of an execution thereon were true, and that the goods claimed in the action of replevin were the same goods taken by defendant under such execution. It appears from the case that, on the 11th of August, 1893, Cooling, the defendant in the judgment and execution, was the owner and in the possession of the stock of boots and shoes and of the fixtures in the store No. 65 East Main street, Amsterdam, N. Y., and at that time the plaintiff Monihan was an accommodation indorser on Cooling’s notes in the hank for $2,360; that such notes were payable to the order of Bridget Cooling, and indorsed by her as the first indorser and by Monihan as the second indorser. The case discloses that Bridget Cooling had no property except a life estate in a house, and that prior to the eleventh of August, Bridget Cooling had mortgaged her interest in the house for $800. On that day Cooling executed a bill of sale of the goods and fixtures in the store to Monihan, the respondent, who thereupon agreed, as the referee finds, to assume and pay notes indorsed by him, in tne Fanners’ National Bank, for $1,560, and a note held by one Ehmer for $100, and to assume and pay $117, rent due Mrs. Parr. The goods at that time were valued at $1,300, and there is evidence in the case that Monilian’s agreement to assume these liabilities was in writing. The referee finds that immediately upon the execution of the conveyance of the goods and fixtures by the bill of sale, the plaintiff took possession of the same and continued in possession up to the 17th day of January, 1894, when the goods were seized by the defendant on executions against Cooling. Upon an examination of the evidence in this case, we think it sufficient to support these findings of the referee as findings of fact. There seems to be no controversy in the evidence that Monihan actually assumed and subsequently actually paid the obligations, which were just debts of Cooling, to the amount specified in the findings of the referee. The evidence discloses that at the time Cooling executed this bill of sale, and transferred the property to Monihan, he was entirely insolvent, and that he owed other debts to other individuals and firms aside from his indebtedness to Monihan. It is insisted on the part of’the appellant that Cooling’s transfer of these goods to Monihan was in fraud of the rights of other creditors, and that it was done for the purpose of hindering and delaying the other creditors of Cooling in the collection of their just debts. But the referee finds, and we think upon sufficient evidence, that there was a good and valid consideration for the transfer, and that at the time of the transfer of these goods to Monihan they were not sufficient to pay Cooling’s indebtedness to Monihan, and that Monilian, on taking possession of them, insured them in his own name, placed in the store other goods, increasing the stock, took out a lease in his own name for the store in which the goods were being sold, and in all respects conducted the business as his own. On the other hand, it is insisted that Cooling conducted the business in the same manner as he had conducted it before, and that there was no actual and continued change of the possession of the goods, such as is required by the Statute of Frauds, to pass the title as against the creditors of Cooling. Under the evidence in this case we think it was a question of fact for the referee to determine in whose possession the goods actually were, and, having found that they were in the possession of Monihan from the time of the sale to him until the levy hy the defendant, that finding as a question or fact cannot be disturbed on this appeal. On the whole case, we think the evidence fully sustains the conclusions of the referee, both of fact and law, and that the judgment must he affirmed.

Putnam and Herrick, JJ., concurred.


text:
    Maria Ten Eyck and Another, Respondents, v. Catharine A. Whitbeck and Others, Appellants.
   Judgment affirmed, with costs.—

Mem. by

Herrick, J.:

This case has been before the court several times (39 N. Y. St. Repr. 634; 135 N. Y. 40; 69 Hun, 450), and most of the legal questions have been eliminated. On both occasions, when it was before the General Term of this department, there was a thorough examination of the facte. The additional evidence elicited upon the trial now under review does not seem to me to change in auy essential particular the facts as they appeared when the case was last under consideration by us. Upon "the question of delivery, in addition to the presumption of delivery which arises from the possession of the instrument by the grantee, there is positive evidence, fu st, of tne delivery of the deeds at the time of their execution, and, second, of their having been seen in the actual possession of the grantee, Mrs. Ten Eyck, several years after their execution and before their recording. The circumstances relied upon to overcome the presumption of delivery do not appear to me to have been sufficient to warrant the submission of that question to the jury. The case was tried by the same justice who examined the case and wrote the opinion when it was first before this court, upon appeal (39 N. Y. St. Repr. 634), and his discussion of the evidence on the question of delivery, and of undue influence, at the conclusion of the trial is satisfactory and affords no reason for any further discussion upon those subjects by this court. I can see no reason for arriving at any different conclusion from that arrived at by us when the ease was last before this court; and any doubts expressed at that time as to the propriety of submitting to the jury any question as to the delivery of the deed or deeds, have been removed. The judgment and order appealed from should be affirmed, with costs and disbursements. Mayham, P. J., concurred.


author: Per Curiam:

text:
    James E Clement, Respondent, v. The Congress Spring Company, Appellant.
   Judgment affirmed, with costs.—

Mem.

Per Curiam:

The sole question in this case was whether plaintiff was employed by defendant for one year from March 1,1892, as he claimed, or whether such employment ceased on October 1,1892, when he was discharged by defendant. On this question there were only two witnesses sworn, the plaintiff in his own behalf and Mr. Sheehan on the part of defendant. The testimony of the two witnesses was in direct conflict. Plaintiff swore positively that he was hired for one year from March 1, 1892, while Mr. Sheehan testified that his employment ceased on October first. "We are unable to see how we could properly reverse the judgment on the facts. The defendant made no motion for a nonsuit or for a direction for a verdict, but acquiesced in the submission of the case to the jury. In Perk v. Bell (7 Hun, 454), Learned, J., says: u The failure of a defendant to move for a nonsuit, or to aslc the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to a jury, and the defendant is thereby precluded from moving to set aside the verdict as against evidence.” (See, also, Barrett v. Third Ave. R. R. Co. 45 N. Y. 628, 632.) Had tho defendant, however, moved for a nonsuit at the close of the trial or for a direction of a verdict, this was not one of thoso cases where the trial judge could properly have withdrawn the case from the iury. It is only where there is, a decided preponderance of evidence in favor of one of the parties that a court is justified in directing a verdict or granting a motion for nonsuit. (See opinion of Potter, J., in Mores v. Sherrill, 63 Barb. 21.) Under the doctrine laid down in the case cited, and many other kindred cases, it was the province of the jury to pass upon the credibility of the two witnesses sworn in the case, there being no decided preponderance of evidence either way. "VVe nave examined tho exceptions to the rulings of the court below taken on the trial and think none of them require a discussion or a reversal of the judgment. The judgment should be affirmed, with costs.

Present — Mayham, P. J., Putnam and Herrick, JJ.


text:
    John Edwards, Appellant, v. The Niagara Fire Insurance Company of the City of New York, Respondent.
   Judgment affirmed, witheosts. No opinion.


text:
    Arthur W. Sherman, Respondent, v. Charles A. Foster and others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Henry L. Gregg, Respondent, v. The Granger & Gregg Brewing Company, Appellant.
   Order affirmed, with costs and disbursements. No opinion.


text:
    Susie Sheldon, Appellant, v. Cornelia Mott and Others, Respondents.
   Order affirmed, with costs and disbursements.

Mem. by

Herrick, J.:

The power of a court upon the request of a client to make an order substituting one attorney for another is undoubted, when such an order should he made upon the payment of the attorney’s costs, and when it may be made without providing for such payment, is discussed in The Matter of Prospect Avenue (85 Hun, 257). I agree with the conclusion arrived at there, and see no occasion for indulging in any further discussion of it. That decision covers the questions raised upon this appeal. The affidavits disclose a state-of facts which seem to me to be sufficient to have authorized the Special Term in making the order made in this case. A discussion of the facts will neither be of advantage to the cause of justice nor for the-benefit of the parties to this appeal. The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Mayham, P. J., and Putnam. J., concurred.


author: Putnam, J.:

text:
    Jeremiah Kielyand Joseph A. Stahl, Respondents, v. Mary H. McMillen, Appellant.
   Judgment of County Court and or tho City Court reversed, with costs of this appeal and with costs of the County and City Courts.—

Mem. by

Putnam, J.:

The testimony offered by the plaintiffs before the justice was clearly insufficient to sustain the judgment. It was not shown that defendant was the owner of the premises on which the plaintiffs made the drain and placed the hydrant for which they sought to recover m the action. Nor did it appear that defendant’s husband was authorized by her to enter into the contract with plaintiffs under which they claimed. It was not shown whether' the account set out in the complaint was charged or the bill thereof made out to defendant or her husband, and the receipts read in evidence failed to show the liability of defendant, as one of them acknowledged the payment of fifty dollars by defendant’s husband on account, and the other twelve dollars by defendant on account. Again, the plaintiffs neglected to prove that they had laid the new drain, and made the repairs entitling them to payment of eighty-two dollars and fifty cents under their contract with defendant’s husband. "We think an opinion in the case is unnecessary. In the absence of testimony to sustain plaintiffs’ alleged cause of action, defendant's motion for a nonsuit should have been granted, and hence the judgment of the County Court should be reversed, with costs of this appeal, and the judgment of the Justice’s Court should also be reversed, with costs of the court below.

Mayham, P. J., and Herrick, J., concurred.


text:
    Walter J. Eaton, Appellant, v. Edgar W. Philo, Respondent.
   Judgment affirmed,, with costs. No opinion.


text:
    Sarah G. Smith v. John B. Smith.
   Decision amendedsoas to read:l* Judgment appealed from in so far as it denies a divorce to plaintiff affirmed) and in so far as it grants it to defendant with costs and disbursements, reversed. The judgment as so modified affirmed, without costs to either party upon the trial in the court below, and without costs of this appeal to either party.” No opinion.


text:
    The People of the State of New York, Respondent, v. Irving Gumaer, Appellant.
   Motion for reargument granted. No opinion.


text:
    Fred Williamson, Respondent, v. Frank W. Carlton and Another, Appellants.
   Order affirmed, with ten dollars costs. No opinion.


text:
    Myron Young, Respondent, v. George E. Nestell, Appellant.
   Order affirmed, with costs. No opinion.


text:
    Silas W. Prince and Another, Respondents, v. Louis Frazer and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    The People of the State of New York ex rel. Winsor B. French, Respondent, v. Byron J. Town, Receiver or Taxes of the Village of Saratoga Springs, Appellant.
   Reargument ordered. No opinion.


text:
    The People of the State of New York, Appellant, v. William Bennett, Respondent.
   Judgment of conviction reversed. No-opinion.


text:
    The People of the State of New York ex rel. Anne Minott Mitchell, as Administrator, etc., Respondent, v. Edward B. Long and Others, Composing the Board of Trustees of White Plains and Others, Appellants.
   Order affirmed,with ten dollars costs and disbursements. No opinion,

Dykman, J., not sitting.


author: Pratt, J.:

text:
    In the Matter of the Judicial Settlement of the Account of Charles J. Ahrenfeldt, as Executor of Charles Ahrenfeldt, Deceased.
   Order affirmed, with ten dollars costs and disbursements.—

Pratt, J.:

The surrogate correctly held that the contestants are not interested in the questions they seek to raise. Order appealed from affirmed, with costs.

Brown. P. J., and Dykman, J., concurred.


author: Dykman, J.:

text:
    The People of the State of New York, Respondent, v. William Nooney, Appellant.
   Order affirmed.—

Dykman, J.:

This is an appeal from an order made at the Special Term reducing the costs of the appellant in a former appeal from an order of the County Court to the General Term from a full bill of costs as on appeal from a judgment and ten dollars costs of an appeal from an order. There is no doubt about the legality and propriety of the order, and it should be affirmed without an opinion.

Pratt, J., concurred. Brown, P. J.,not sitting.


text:
    Interstate Steamboat Company, Respondent, v. The First National Bank of Syracuse, Joseph A. Bradburn and Others, Appellants.
   —Order reversed, with ten dollars costs and disbursements. No opinion.

All concur.


text:
    Sabra M. Ashley, Respondent, v. Harford Ashley, Appellant.
   The counsel fee is reduced to $100 and defendant is allowed twenty days after the service of the order to pay the same. If not then paid, the. answer is stricken out. Order appealed from modified accordingly. No opinion.

All concur.


text:
    George C. Montgomery, Respondent, v. William J. Ryan and Another. Appellants.
   Order affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

This is an appeal from an order denying a motion to change the place of trial of this action from the county of Westchester to the county of New York. There is no merit in the appeal, and the order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.


text:
    Charles B. Crowell, Respondent, v. Lidie S. Crowell, Appellant.
   Order affirmed, with ten dollars costs and disbursements.—

Pratt, J.:

The stipulation obviously contemplated a speedy trial, which had, however, been evaded, and defendant showed no eagerness to bring it on. Under the circumstances, the plaintiff had a right to regard the stipulation as abandoned, and move the trial. The proper county was Queens, and when defendants objected to Kings county, the Special Term judge properly ordered it to be tried here. Order affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Dykman, J., concurred.


text:
    Adam S. Matheson and R. C. Neal, as Receivers of the American Tube and Iron Company, Appellants, v. Alonzo E. Smith, Respondent.
   —Order affirmed, with costs. No opinion.

All concur.


text:
    Willard P. Heath, Respondent, v. Arthur Knapp and J. N. Boyce, Appellants.
   Order affirmed, with ten dollars costs and disbursements.—

Dykman, J.:

This is an appeal from an order of the Special Term denying the defendants1 motion to vacate an attachment which was issued against the defendants on the ground that they were about to dispose of their property with an intent to defraud their creditors. The defendants moved to set aside the attachment upon affidavits, and, on the motion, the plaintiff filed further affidavits to sustain the same. The affidavits are somewhat conflicting, but the issuance of the attachment was justified in the first instance by the iDapers upon which it was based, and the affidavits upon which the motion to vacate the attachment was based failed to destroy the case. There was sufficient evidence of fraudulent intent to justify the denial of the motion to vacate the attachment, and the order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.


text:
    In the Matter of Gowdy.
   The court finds the respondent guilty of misconduct and deceit, and suspends him from practice for the term of one year from the date of this decisión, the fees of the referee to be paid by the county treasurer of Rockland county, out of any money in his hands applicable to the expenses of the courts.

All concur.


text:
    Catharine Winmer v. Patrick Cleary and Others.
   Motion for reargument denied, with ten dollars costs. No opinion.

Dylcman, J., not sitting.


text:
    In the Matter of the Probate of the Last Will and Testament of William Baltz, Deceased.
   Decree affirmed, with costs,—

Pratt, J.:

The testator was shown to be competent. There is no suggestion that he was influenced. All the formalities were regarded, and the probate of the will must be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred


text:
    In the Matter of the Probate of the Last Will and Testament of Joseph Cohen, Deceased.
   Decree of surrogate affirmed, with costs to be paid by appellant. No opinion.

All concur.


text:
    George Miller, Respondent, v. John King and John G. McCullough, as Receivers, etc., Appellants.
   Judgment and order reversed, and a new trial granted, costs to abide event. No opinion.

All concur.


text:
    In the Matter of the Final Judicial Settlement of the Account of William H. Smith as Executor, Trustee, etc.
   Decree of surrogate affirmed, with costs to respondent payable out of the estate, Opinion by Pratt, J. (not published at hisrequest). Brown, P. J., dissents on the ground that the estate in remainder created by the will vested on the death of the testator.


text:
    Patrick Evers and Rose Evers v. Long Island City.
   Judgment affirmed, with costs. No opinion.

All concur.


text:
    James M. Waterbury and John S. Ellis, as Executors of the Last Will of Lawrence Waterbury, v. The Tucker & Carter Cordage Company and Others, Defendants, Including United States Cordage Company and United States Trust Company.
   Judgment and orders appealed from affirmed, with costs.!

No opinion.

All concur.


text:
    Thomas H. Phillips, as Administrator, etc., v. The Brooklyn Heights Railroad Company.
   Judgment and order affirmed', with costs.; No opinion.

All concur.


text:
    The People of the State of New York v. Edward C. Van Houten.
   Judgment affirmed.—

Pratt, J.:

In this case that the defendant was guilty of violating a village ordinance, that he was tided for the same and fined a sum authorized by law for such violation, is not disputed. There is no material question raised upon this appeal that is not answered by the opinion of the county judge, and the cases quoted by him therein. Whether we call the decision of the police justice a fine or a penalty, is not material, or whether we call the offense for which he was tried a crime or a violation of a city ordinance is equally immaterial, as the police justice simply imposed what lie had power to impose under the law and the village charter. We need go back no farther in point of time than the moment the defendant appeared for trial before the Police Court, as it is not material how he got there as no objection was raised to the jurisdiction, but only that the offense with which he was charged was not a crime. The defendant well knew the ordinance under which he was charged, and upon the facts made no substantial defense. It seems plain that the Legislature intended that villages should have the power to pass such an ordinance as that now under consideration, and that the penalty might be imposed for its violation, and its collection enforced by imprisonment not exceeding ten days in county jail, and the decision of the Police Court here under review was in accordance with such provisions. The request for a jury trial was properly overruled. No right of defendant was prejudiced further than authorized by law. J udgment affirmed.

Brown, P. J., and Dykman, J., concurred.


text:
    The People of the State of New York ex rel. Christopher Post v. Clarence T. Barrett and Others, Commissioners of Police of Richmond County.
   Determination affirmed, with costs. No opinion.

All concur.


text:
    Sidney Bell, Respondent, v. John Breen, Appellant.
   Judgment affirmed, with costs.

No opinion.

All concur.


text:
    Abijah Weston and Charles Weston, Respondents, v. Daniel G. Brown and Carrie M. Hasbrouck, Appellants.
   Judgment affirmed, with costs.—

Dykman, J.:

This is an appeal from a judgment in favor of the plaintiffs against the defendants for $117,719.92 entered upon the report of a referee.. The complaint contains fifty causes of action, forty-nine of which are upon promissory notes given to the plaintiffs by the defendants on account! of lumber. The fiftieth cause of action is for a balance due upon the account for the lumber, for discount paid upon the paper and for money paid for freiglits. The referee found that the lumber which constituted the consideration of the forty-nine notes was a portion of the lumber wliich was the subject of the account set up in the fiftieth cause of action in the complaint, and his decision was based upon that account. The defense of the action was that the notes were accommodation paper and that the lumber, for which the plaintiffs claim, was not sold to the defendants, hut was consigned to them to be sold for the plaintiffs. The lumber was shipped by the plaintiffs to the defendants under a written agreement, which provided for a conditional sale, as the plaintiffs claim, and not for a consignment for sale as the defendants insist. The question arises between the immediate parties to the agreement, and no rights of creditors or bona fide purchasers are involved. It was, however, much more than an agreement for the consignment of goods for sale to the defendants. It was a sale of the lumber, and the obligation of the defendants was absolute whether ib was conditional or not. It was expressly stipulated in the agreement that “all said lumber so shipped and the proceeds of all sales thereof by said second party shall be and remain the property of the said first party until the said lumber so sold shall be fully paid for by said second party to said first party, ana all sums of money received by said second party for the sales of said lumber by him shall be moneys had and received by said first party until a sufficient amount thereof shall have been paid to the said first party by said second party to cancel the indebtedness arising upon the sale of the lumber so sold.” The referee has limited the recovery to the lumber sold by the defendants previous to the fire, and lias not charged the defendants with the lumber which was destroyed thereby. The payment of discounts upon1 the notes of the defendants was a valid' charge against them, as they were given on' account of the lumber. The same is to be said respecting the payment for freight upon’ the lumber shipped to the defendants. As, i therefore, the referee has only charged the' defendants for the value of the lumber! which they sold under the contract, and, as it was provided therein that the money re-1 ceived by the defendants upon such sales of lumber should be moneys had and received by [-he defendants for the plaintiffs, it is quite immaterial whether the sale was absolute or conditional, because the money re-1 ceived upon the sales under the contract be-1 longed to the plaintiffs. The record pro-1 sents no error, and the judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred in the result


text:
    Charles E. Hadden, Respondent, v. Edward B. Hall, Appellant.
   Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates in twenty days to reduce the verdict to the sum of $2,000, and to reduce the extra allowance to the sum of five per cent on $2,000. If such stipulation is filed, the judgment as so modified is affirmed, without costs.—

Pratt, J.:

The verdict substantially gave plaintiff all that he claimed, and made slight, if any, allowance for the deficiencies in execution of the building contract, which were many and practically undisputed. It is,therefore, impossible to sustain the verdict of the jury to its full extent. Giving all proper effect to the plaintiff’s testimony and to the verdict, we are of opinion that the sum of $1,004 should ho deducted from the verdict, or in the alternative a new trial be granted. The plaintiff may elect between such modification and a new trial. In case he elects to accept the modification, the allowance of five per cent upon $1,694 should also be deducted from the judgment, which, as thus modified, is affirmed, without costs of appeal. Otherwise, judgment reversed and new trial granted, costs to abide event.

Brown, P. J., concurred.


author: Dykman, J.;

text:
    Charles M. Bierschenk and Philip M. Bierschenk, Respondents, v. John Dunphy, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.—

Dykman, J.;

This is an appeal by the owner from a judgment in favor of the plaintiffs in an action io foreclose a mechanic’s lien. The case was tried before a judge without a jury? and the findings are supported by the evidence. The record presents no error of law, and the judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., dissented.


text:
    Fannie G. Parsons, Respondent, v. Charles W. Parker, Appellant.
   Judgment affirmed, with costs. No opinion.

Dykman, J., not sitting.


text:
    Patrick P. O'Hehir and Another, Respondents, v. The Middletown-Goshen Traction Company, Appellant.
   Judgment and order affirmed, with costs.—

Dykman, J.:

This is an appeal by the defendant from a judgment entered in the County Court of Orange county upon the verdict of a jury in favor of the plaintiffs, and from an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of $522.20 for a balance claimed to be due from the defendant to the plaintiffs for services in blasting rock in a cut along the line of the defendant’s road. There was a, dispute respecting the amount of work done, and the defense of payment was also set up by the defendant. There was testimony introduced on botli sides which tended to show the theories of each party, and the question of fact involved was submitted to the jury by the county judge. The defendant complains of the charge respecting the legal effect of the receipt, but the complaint is without cause. The receipt was for the money called for by the bill upon which it was rendered, and is not a receipt in full. The testimony respecting the circumstances under which it was given is contradictory, and was submitted to the jury. The judge refused to charge that the receipt was evidence of a final settlement, and that was 2’ighfc, 212 view of the evidence. It must now be assumed that the jury found in favor of the plaintiffs upon the question in dispute, and there being evidence to sufficiently support such finding, we cannot disturb the verdict upon that ground. We find no errors of law in the case, and the judgment and order denying tho motion for a new trial should be affirmed.

Brown, P. J., and Pratt, J., concurred.


text:
    Orpha D. Van Houten, Respondent, v. Isaac E. Pye, Appellant.
   Judgment and order affirmed, with costs.—

Dykman, J.:

This case was before us at a prior term of this court upon an appeal by the plaintiff from a judgment in favor of the defendant, We reversed that judgment and laid down the law which was to control the case so far as this court is concerned. As we adhere to the opinion delivered at that time, it is unnecessary to re-examine the case now. The trial court followed our decision, and the judgment and order denying the motion for a new trial on the minutes of the court should be affirmed with costs.

Brown, P. J., and Pratt, J.. concurred.


author: DykmaNj J.:

text:
    S. Fleet Spier, Appellant, v. Frank Little, Respondent.
   Judgment affirmed, with costs.—

DykmaNj J.:

This is an appeal from a judgment entered upon the report of a referee. The action is for an accounting. Botli parties to the suit are physicians, and the defendant went into the service of the plaintiff in May, 1883, under an agreement to aid tho plaintiff in his practice. The first agreement was in writing, and prescribed the salary of the defendant, and provided for his disbursements, but that agreement was modified at different times. The complaint charged the defendant with attending to patients outside of his practice and retaining the money received therefor in violation of his agreement. The answer of the defendant to that charge was, that such practice and the retention of the money received therefor was in pursuance of an agreement with the plaintiff. Upon that issue the parties went to trial, and the questions decided against the plaintiff. The defendant supported his position by his own testimony, and by evidence of other witnesses, and by many corroborative circumstances. The plaintiff, in his testimony, confirms much of the defendant’s evidence, and the statements rendered by the latter to the firm and his acquiescence in them is quite corroborative of the theory of the defendant. In a case like this, involving questions of fact only, where the testimony is plain, it is seldom necessary to recapitulate or analyze the evidence. The ref ereehas made full findings, and we find upon a careful examination of the case that they are well sustained by tho proof. Judgment should bo affirmed, with costs.

Brown, P. J., concurred; Pratt, J., not voting.


author: Dyiotan, J.:

text:
    Patrick Diamond, Respondent, v. The City of Brooklyn, Appellant.
   Judgment and order affirmed, with costs.—

Dyiotan, J.:

This is an appeal from a judgment entered upon the verdict of a jury and from the order denying the defendant’s motion for a new trial on the minutes of tho court. The action is based upon negligence, and the facts are these: On the 12th day of April, 1893, the plaintiff was riding on a truck along Flafbush avenue in the city of Brooklyn. At the corner of Dean street tho driver of the truck slackened its speed to almost a standstill to allow the plaintiff to alight. The plaintiff stepped down upon the ground on his right loot, at the same time holding on to the rung of the truck with his right hand. He had reached the ground and turning around he stepped into a hole in the crosswalk with his left foot, causing him to fall down and break his leg. The hole was about two feet long, nine inches wide and eight or nine inches deep, and had been there for a year or more. As a result of these injuries the plaintiff was confined to the hospital and to his house, and was unable to engage in his work for a period of about four months. The injury to his leg had the effect to shorten it an inch or more, making it weak, and rendering him unable to earn the same wages that he did before he received the injury. In tiiis class of cases the plaintiff is bound to show by a preponderance of evide2ice the negligence of the defendant and his own freedom therefrom as a contribution to the result. The plaintiff in this case, sustained the burden which the law cast upon him and the charge of the trial judge submitted the question involved to the jury. The verdict in favor of the plaintiff under the charge establishes the facts in favor of the plaintiff, and the record presents no errors of law. The judgment and order denying the motion for a new trial should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.


text:
    Gustav Heinz, as Administrator, etc., Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
   Judgment affirmed, with costs.—

Pratt, J.:

Several witnesses testified that the car was going fourteen or fifteen miles an hour. There 'were also two persons besides the motorman standing upon the front platform. There was enough evidence to go to the jury upon the question of defendant’s negligence. The deceased hoy was seven years of age, and the question whether he exercised such care as can be reasonably required from a lad of that age was peculiarly a question for the jury. The motion for nonsuit was properly denied. The charge of the court could not be objected to by defendants. The only question that remains is whether a verdict of -$3,500 for the life of a bright and healthy hoy is excessive. That is peculiarly a question for the jury. We cannot say the verdict shows passion or prejudice. Judgment affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


text:
    Catharine Schoonmaker, Respondent, v. Leonard Blass, Appellant.
   Judgment affirmed,, •with costs.—

Dykman, J.:

This is an appeal from a judgment overruling a demurrer to the complaint. The action is for the foreclosure of a mortgage ancl the defendant Blass demurred to the complaint on the ground that it did nob state facts sufficient to constitute a cause of action and because there was a defect of parties defendant. The complaint was sufficient as against the defendant Blass and the judgment should be affirmed, with costs.

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


text:
    William Hollingsworth, Respondent, v. The Long Island Railroad Company, Appellant.
   —Judgment affirmed, with costs.—

Pratt, J.:

The case went to the jury on the point as to whether the injury was caused by the defective brake. The verdict establishes that to be the fact, and from that we think defendant’s liability results. We are not able to agree with defendant’s counsel that the railroad company owed no duty to the plaintiff in respect to that brake. The perils of his occupation which he assumed did not include defective rolling gear of which he had no notice. The court correctly held that concurring negligence of a co-employee did not relieve defendant from responsi* bility. (Lilly v. N. Y. C. & H. R. R R Co , 107 N. Y. 566.) The verdict was not excessive. Judgment affirmed, with costs.

Brown, P. J.. ancl Dykman, J., concurred.


text:
    The Noyac Cottage Association, Plaintiff, v. Newton E. Whiteside, Defendant; The Noyac Cottage Association, Plaintiff, v. Henry G. Atwater, Defendant; The Noyac Cottage Association, Plaintiff, v. Lucius J. Whitney, Defendant.
   Exceptions overruled and judgment ordered on the verdicts, with costs* No opinion.

All concur.


text:
    Charles H. Schwarz, Respondent, v. Long Island City, Appellant.
   Judgment affirmed* with costs. No opinion.

All concur.


text:
    Margaret Fox, Respondent, v. Mary P. De Graff, Executrix, etc., Appellant.
   Judgment affirmed, with costs.—

Dykman, J.:

This is an appeal by the defendant from a judgment m favor of the plaintiff entered upon the report of a referee. The action was brought to recover5 for the board of Robert De Graff under a. contract with the defendant’s testator. The agreement was established and the report is sustained by proof, and no question of law is involved. Judgment should be affirmed, with costs.

Brown, P. J., and Pratt, L, concurred.


text:
    Matter of Application 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.
   Order affirmed, with ten dollars costs and disbursements.—

Pratt, J.:

This is an appeal from an order made at Special Term involving the allowance made attorneys of record in this proceeding. The statute authorizing and regulating the proceeding provides that u such allowance for counsel fees as may be made by order of the court shall be final, etc.” It is plain that the commissioners had no authority to fix any allowance, but the power was vested in the court. It was, therefore, a matter of discretion to be fixed in view of all the circumstances. The sum allowed did not exceed the limit prescribed by section 3255 of the Code of Civil Procedure and was not an abuse of the discretion vested in the judge presiding at Special Term. The case involved much labor and responsibility and required great care and much time in its management; in addition, new duties were imposed upon the attorneys subsequent to the hearing before the court upon the first presentation of the commissioners’ report. The proceeding involved the taking of 113 parcels of land, and the awards exceeded ¡$150,000, and the time required was over two years. During all this time the case called for constant attention. Under all the facts and circumstances we cannot say the amount allowed was unreasonable. Order affirmed, with costs and disbursements.

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


text:
    Arthur W. Caziarc, Respondent, v. Abram French Company, Appellant.
   Order modified by striking out the name of the person in whose presence the plaintiff was seen intoxicated, and, so modified, affirmed, without costs.—

Pratt, J.:

This is an appeal from an order requiring the defendant to serve a verified bill of particulars of the matter set up in the answer. In addition to a general denial, the defendant has set up in what way he claims the plaintiff has broken the contract of employment, and it is only fair the plaintiff should be apprised of the time ana place, when and where, the occasions took place upon which he intends to offer proof. He will not be required to disclose his evidence or the names of his witnesses. The order went too far in requiring the defendant to state the names of the persons in whose presence the plaintiff was intoxicated; with the modification of striking out that part of the order, the order appealed from is affirmed, without costs to either party.

All concur.


text:
    Alexander Smith & Sons’ Carpet Company, Respondent, v. Halcyon Skinner, Appellants.
   —Order affirmed, with ten dollars costs and disbursements.—

Pratt, J.:

The Special Term places this case on the proper ground. The patent No-543,659 is shown by moving affidavits to belong in equity to plaintiff, while the proper title is held by defendant. He refuses to assign, and upon these facts an injunction pendente lite against his transferring the patent to strangers is a matter of course. Strict proof that defendant threatens to sell is not required.' From the fact that defendant unjustly refuses to assign to plaintiff, the court may well infer an intent to use the patent unlawfully. It is objected that it is not specifically shown when the discovery covered by patent No. 543,659 was made, and, therefore, it may have been made before 1874, when the contract was executed upon which plaintiff’s rights depend. It is shown to be for an improvement on patent No. 186,374, issued in 1877. The court will take judicial notice of the course of business in the patent office, and that No. 543,659 is an issue of later date than No. 186,374. We tLmk the appeal without merit. Order appealed from affirmed, with costs.

All concur.


text:
    The Unionville Silk Manufacturing Company, Appellant, v. C. W. Peasley and Another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.


text:
    James H. Ryan v. Francis Pistone.
   Motion to amend order of reversal granted, and leave granted to appeal to the Court of Appeals.


text:
    Daniel Mahoney v. Jarvis McWalters.
   Motion for reargument granted.


text:
    Lizzie J. Canda v. John Totten.
   Motion to resettle order of reversal granted.


text:
    The Noyac Cottage Association v. Newton E. Whiteside.
   Motion to resettle order denied, without costs.


text:
    The Noyac Cottage Association v. Henry G. Atwater.
   Motion to resettle order denied, without costs.


text:
    The Noyac Cottage Association v. Lucius J. Whitney.
   Motion to resettle order denied, without costs.


author: Rer Curiam:

text:
    Emma Gutman, Respondent, v. The New York Elevated Railway Company and Another, Appellants.
   Judgment reversed'and new trial ordered before another referee to he appointed by this court, with costs to appellants to abide event.

Rer Curiam:

It seems to be conceded by the respondent that evidence, and upon an examination of the record a considerable amount thereof, was admitted in this action for the purpose of proving damage, of a character which was condemned by the Court of Appeals in the case of Jamieson v. Kings Co. El. Ry Co., recently decided. It is impossible for us to say that such evidence did not influence the referee, or that he would have come to the same conclusion had it not been presented before him for consideration. It may be true that the evidence in question was of a character such as lias been presented in various of these cases which have been affirmed by the Court of Appeals. But that court seems in the case last decided to have finally come to the conclusion that it is necessary to enforce the rules of evidence which commonly obtain, even in an elevated railroad case in this city; and we see no reason for dissenting from this conclusion. The case at bar, as already stated, is clearly within the rule laid down in the Jamieson case, and the judgment must, therefore, be reversed and a new trial ordered before another referee to be appointed by this court, with costs to the appellants to abide the event.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.


text:
    Martha Keesy, Appellant, v. John F. Dimon and Others, Respondents.
   Judgment affinned, with costs, on opinion at Special Term.


text:
    The Board of Home Missions, etc., and Another, Appellants, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
   Judgment affirmed, with costs, on opinion of Special Term.


text:
    The Mercantile Trust Company, Appellant, v. The Atlantic Trust Company, Respondent.
   Order to be entered reversing order appealed from, unless defendant give security, to be fixed upon application to Special Term. See Mem. Per Curiam.


text:
    The People of the State of New York ex rel. John G. Zuckschwerdt, Appellant, v. James J. Martin and Others, Respondents.
   Writ dismissed, with costs. No opinion.


text:
    Abbie S. Nash and Others, Appellants, v. Hall Signal Company and Others, Respondents.
   Motion granted.


text:
    In the Matter of an Application for the Removal and Disbarrment of an Attorney.
   The attorney suspended for six months.


text:
    Thomas G. Patterson, Respondent, v. John P. McGovern, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Edward D. Farrell, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment modified by reducing the fee damage to $6,500 and the allowance to $400, and as modified affirmed, without costs. No opinion.


text:
    Anson B. Stewart and Others, Respondents, v. The New York Elevated Railway Company and Another, Appellants.
   Judgment modified by reducing the rental damage to $750 and the extra allowance to $75, and as modified affirmed, without costs. No opinion.


text:
    Ferdinand Beinhauer, Respondent, v. Manhattan Railway Company and Another, Appellants.
   Judgment modified by reducing the fee damage to $1,000, the rental damage to $800, and extra allowance to $90, and as so modified affirmed, without costs. No opinion.


text:
    The People of the State of New York ex rel. The American Flag Company, Respondent, v. Edward P. Barker and Others, Appellants.
   Order affirmed, with costs and disbursements upon opinion of court at Special Term.


text:
    John Corse and Others, Trustees, etc., Plaintiffs, v. Sarah M. Chapman and Others, Defendants.
   Motion for new trial denied, with costs. No opinion.


text:
    In the Matter of Thomas Simpson, Plaintiff, v. Abram Kling, Defendant.
   Motion denied, with ten dollars costs.


text:
    Maria H. N. Bartlett, as Executrix, etc., Respondent, v. William W. Goodrich, as Assignee, etc., Appellant.
   Judgment affirmed, with costs.--

Per Curiam:

From July 15,1890, to May 24, 1894, the date of the death of Edward B. Bartlett, the legal title to the policies of insurance on his life was in him, and on his death it passed under his will to the plaintiff. The defendant insists that the equitable title to the policies was in the firm of E. B. Bartlett & Co. They never were assigned to the firm; but, in March, 1887, they were assigned by Edward B. Bartlett to Albert C. Woodruff and Henry O. Nitchie in equal shares, who, with Bartlett, were the partners composing the firm of E. B. Bartlett & Co. The legal title remained in Woodruff and Nitchie until July 15,1890, when they reassigned the policies to Bartlett. The plaintiff is the representative of Bartlett and his creditors, and the defendant is the representative of the creditors of tlie firm of E. B. Bartlett & Co. and of the individual creditors of Woodruff and Nitchie, and the equities of these litigants must be worked out through the equities of the individual partners as between themselves and the firm. It is very clear that as between the three partners Bartlett ivas the equitable as well as the legal owner of these policies as he was between himself and the firm. The firm was at all times largely indebted to him, and at the time of his death in the sum of upwards of $127,000, and there was no obligation on his part, legal or equitable, to relinquish his indi vidual title to the policies in favor of the firm or in favor of Woodruff and Nitchie. The annual premiums on the policies were paid through the firm, but it is not unusual for members of firms to pay individual debts out of partnership funds, and when this is done, as in this case, with the knowledge and consent of all the partners, no wrong is done. These premiums have all been repaid to the firm since the death of Bartlett. Tho letters written by Bartlett and found after his death in an envelope with his will, together with a draft of an assignment, show quite conclusively that at one time he intended to reassign these policies to the firm or to Wood-ruff and Nitchie, but it is conceded that he never executed this intent. We think the evidence falls short of establishing an equitable title in the assignee to the fund derived from these policies, and that for the reasons given by the learned trial judge for his decision, tne judgment should be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.


author: Parker, J.:

text:
    William Hanrahan, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
   Judgment affirmed, with costs.—

Parker, J.:

The dismissal of the complaint by the court at Circuit was required by the decision of this court in Kelly v. The Mayor (70 Hun, 208). The material facts in that case and the one under review are precisely alike. The judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concurred.


text:
    George H. H. Butler, Appellant, v. Frederick C. Prentiss, Respondent.
   Judgment modified as* directed in opinion, and affirmed as modified, without costs to either party.—

Per Curiam:

Had the referee concluded that the agreement of January, 1889, which sprang out of the Sherwood House interview, was procured by fraudulent misrepresentation, then, though such related only to a portion of the agreement, the plaintiff would be right in his contention that, as a matter of law, the whole agreement should be set aside. At the interview out of which the agreement sprang, the defendant declined to go on with the business unless the plaintiff should relinquish his depreciation account, make a reduction in the rent of the factory and bear half the losses of the business; and it was then stated by Hathaway, in the presence of the plaintiff and defendant that the plaintiff’s depreciation account gave eleven per cent upon his capital. While holding plaintiff to so much of this agreement as he did understand, the referee relieved him from so much as was apparently based on the statement as to the eleven per cent, which he finds was a misleading one, and which the plaintiff would not have made “had he fully understood and appreciated the effect upon his rights.” That the referee did not, however, regard it or find it to be a fraudulent misrepresentation clearly appears from his findings and from his opinion. In the flatter he says: “ I repeat what I have already said, that I do not wish to be understood as finding that the defendant deliberately intended to deceive the plaintiff or take an unfair advantage of him, but I tbink the effect of what he did was to mislead the plaintiff, and that he did not comply with the strict rules requiring full disclosure as between partners, one of whom standsin a position of superiority to the other in knowledge of the affairs of the firm. It does not appear that the defendant ever explained to the plaintiff the nature of the capital and depreciation accounts, or that he ever stated to him fully what was the original agreement between himself and Mr. Butler, senior.” Now the referee has found, .and the evidence supports it, that plaintiff understood fully what he was about in consenting to a reduction of the rent and in assuming fifty per cent of the loss,and there was ample consideration for such promise on his part, because the defendant refused to goon further with the business unless he should make such modifications in their partnership agreement. There was consideration also for his promise to waive the fixed percentage for depreciation on machinery; but the refei'ee, as we have seen, reached the conclusion that he did not understand that, and that it became a part of the agreement without a full depreciation of the situation on Butler’s part. We think that in this latter conclusion the referee took a view of the testimony most favorable to the plaintiff, for, independently of whatever the defendant or Hathaway may have said at the time on the subject, it was made to appear that, prior to the Sherwood House interview, the plaintiff had announced his determination to give up his right to the depreciation account. Having, however, drawn the inference most favorable to the plaintiff, which expressively negatives a finding of any fraudulent misrepresentation, the rule which the plaintiff would invoke— that “ wherever an agreement or other like transaction has been procured by means of a material fraudulent misrepresentation by one of the parties, * * * even though ifc relates only to a portion of the contract, it furnishes a complete defense to an enforcement of the whole agreement” — is not applicable. In addition, however, to the concession obtained from the plaintiff as to the depreciation account in 1889, the defendant prior thereto, and in 1885, persuaded plaintiff to waive all depreciation on new machinery for 1885, and to accept two per cent depreciation for 1886 and three per cent for 1887. The referee having found that the plaintiff did not understand the depreciation account, which the defendant was bound to explain to him, and that a contract to reduce it made in 1889 could not be sustained, and that five per cent was a low rate of depreciation both for new and old machinery, which fact was not made known to the plaintiff, we think that, to make the judgment consistent and logical, so much of the agreement of 1885 as involved a reduction in the rate of depreciation upon new machinery should also have been set aside. The crediting of the plaintiff, however, with such amount, which is ascertainable, does not require a new trial, but tho amount can be deducted from the judgment. The other questions are mainly of tact, and have not only been disposed of in elaborate findings, but in a full and able opinion by tho referee, with whose conclusions we see no reason to differ. The judgment as modified should he affirmed, without costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    John L. Gross, Appellant, v. William L. Moore, as Administrator, etc., Respondent; Francis G. Van Woert and Others, as Executors, etc., and Rachel B. March, Appellants.
   —Appeal dismissed.—

Per Curiam:

We do not understand the practice which has been pursued in the case at bar. There is nothing in the record to indicate the character of the action, as it commences, after the formal statement, with a so-called interlocutory decree; and it also contain? another interlocutory decree appointing a referee. The referee reported, and a motion was made to confirm the report, and from the order thereupon entered the appeal was taken. It seems to us that the proper practice would have been at least to have printed the judgment roll; and upon the coming in of the referee’s report to have entered a final judgment, and to appeal from such final judgment. There is nothing in the Code which authorizes the practice which has been pursued in the case at bar. The appeal should be dismissed.

Present— Yan Brunt, P. J., O’Brien and Parker, JJ.


author: Per Curiam :

text:
    Sarah G. Thalman, Appellant, v. Samuel Thalman, Respondent.
   Judgment affirmed, without costs.—

Per Curiam :

This action was brought to obtain a decree of separation, and was defended on the ground that the plaintiff and defendant are not, and never have been, husband and wife. The trial court so found and dismissed the complaint. The plaintiff did not claim that a marriage ceremony had been solemnized by minister, priest or magistrate, but that a verbal marriage contract was entered into between the plaintiff and defendant on the 30th day of April, 1892. And the only question presented on this appeal is whether the finding by the trial court, that there was no such contract, is against the weight of evidence. An attentive examination of theevidencesatisfies us that,under the rules which govern this court in reviewing questions of fact, the finding of the Special Term must stand. As no good purpose can be accomplished by a discussion of the evidence, we refrain from doing it. The judgment should he affiimed, without costs.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.


text:
    In the Matter of the Mayor, Aldermen and Commonalty of the City of New York (In re Horace Anderson).
   Referee’s report confirmed except as to allowance of interest.—

Per Curiam :

This not being an action for the recovery of an award, the provisions of the statute in regard to interest do not apply. No interest should, therefore, have been allowed upon the award, and the referee’s report should be confirmed, except as to such allowance of interest.

Present — Yan Brunt, P. J., and O’Brien, J.


author: PARKER, J. :

text:
    Baum’s Castorine Company, Appellant, v. Fred. A. Thomas, Respondent.

      Counterclaim, not a defense — it cannot be stricken out as sham — new trial upon appeal from judgment of a Justice’s Court.

    A counterclaim is not a defense, and hence cannot he stricken out as sham under the provisions of section 538 of the Code of Civil Procedure.
    When a counterclaim is sufficient and proper upon its face, although it may be in fact false and be pleaded for the mere purpose of obtaining a new trial in the County Court upon an appeal from a j udgment rendered by a justice of the peace, that question will not be tried upon affidavits in the County Court,
    Section 3068 of the Code of Civil Procedure providing that, whenever judgment for more than fifty dollars is demanded in either pleading in an action brought in a Justice’s Court, the appellant shall be entitled to a new trial if, in his notice of appeal, he demands one, confers a strict right, and unless it appears that a counterclaim set up in a defendant’s answer is an improper and unwarranted pleading in the action, that effect should be given to it which the statute plainly directs.
    Appeal by the plaintiff, Baum’s Castorine Company, from an order of the County Court of Oswego county, entered in the office of the clerk of the county of Oswego on the 14th day of May;
    1895, denying the plaintiff’s motion to strike .out the counterclaim in defendant’s answer as sham and to transfer the case from the trial to the law calendar of said court, to be argued upon the return of the justice of the ,peace before whom the action was originally tried.

      O. M. Reilly, for the appellant.

      G. I. Miller, for tbe respondent.
   PARKER, J. :

Tbe first question presented by this appeal is whether the counterclaim in defendant’s answer should have been stricken out as sham under the provision of section 538 of the Code of Civil Procedure. That section- allows a “ sham answer or a sham defense ” to be stricken out on motion. But a counterclaim is not a defense, as the word is used in relation to pleadings. In section 500 it is provided that an answer may contain a statement of new matter constituting a defense or counterclaim,” thus making a clear distinction between the two. . The same distinction is found in section 507, and the very definition of a counterclaim, as given in section 501, shows that it is not included within the term “ defense.” For this reason it has been held that a counterclaim could not be stricken out as sham under section 152 of the Code of Procedure, .which embodied substantially the same provisions as are now contained in section 538 of the Code of Civil Procedure. (Collins v. Suau, 7 Robt. 94; Fettretch v. McKay, 47 N. Y. 427.)

Tbe next question presented is whether the action should not have been transferred from the trial calendar to the law calendar, and a new trial denied to the defendant in the County Court.

It has been held that when the counterclaim is clearly demurrable, as in Denniston v. Trimmer (27 Hun, 393), and in Moore v. Trimmer (23 N. Y. St. Repr. 2), or when the action is' such that a counterclaim is not permitted in it, as in Harvey v. Van Dyke (66 How. Pr. 396) and in Hinkley v. Troy & Albia R. R. Co. (42 Hun, 282), it does not warrant a new trial in the County Court, and that a motion to transfer the case from the trial calendar to the law calendar is proper practice, and should be granted. Those cases, however, do not reach the question here presented. But in Fuller v. Brierley (36 How. Pr. 47), and in Thompson v. Pine (5 Hun, 647) it is held that when the counterclaim is sufficient and proper upon its face, although it may be false in fact, and pleaded for the mere purpose of obtaining a new trial on appeal, that question will not be tried upon affidavits in the County Court.

The Code of Civil Procedure (§ 3068) provides that whenever, in an action brought in a Justice’s Court, judgment for more than fifty dollars is demanded in either pleading, the appellant shall be entitled to a new trial if in his notice of appeal he demands one. Here, in plain language, is a strict right given to either party, and unless it appears that the counterclaim ■ is an improper and unwarranted pleading in the action, that effect should be given to- it which the •statute so plainly directs.

It is true that under such a rule the right so given may sometimes be abused, but so would the practice allowing the truthfulness and good faith of a counterclaim to be assailed by motion and upon affidavits in the County Court. "We conclude that the rule adopted by the court in Thompson v. Pine, above cited, is the proper one, and we are not disposed to differ from it.

The order of the County Court is correct, and should be affirmed, with ten dollars costs and printing disbursements against the appellant.

All concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Margaret Ann O’Donoghue and Others, Appellants, v. L. Dwight Boies, Respondent.

      Sale in partition, in violation of a trust and of the provisions of a will — purchase by a gua/i'dian as an individual, prohibited — laches—proof of an exception.

    In an action brought to recover the possession of certain lands, it appeared that Michael O’Donoghue, by his will, devised all his real estate to his executors in trust to sell the same; to divide the proceeds into equal shares; to invest the shares, and to apply the income severally to the use of his children during minority, and, upon their respectively attaining lawful age, to pay over to each child his share; that by a codicil he revoked the pow'er of sale, except as to certain specified parcels; that he provided that the lands not sold should be held by his executors upon the same trusts upon which the proceeds would have been held had the lands been sold, and that he further provided that his ■executors should have power, whenever any of his children should attain lawful age, to make partition of his real estate and to allot to such child his equal share.

      The will was admitted to probate, and subsequently one of the executors, a sou of the testator, commenced an action for the partition of all the lands devised. The present plaintiffs, who were then infants, were made parties defendant, and their mother, the other executor, was appointed their guardian ad liiem. A sale was had, and the mother purchased the property in her own name. She mortgaged it, the mortgage was foreclosed, and the defendant acquired title on the sale.

      Held; that it was the evident purpose of the testator that none of the shares of his children in the real estate in question should be sold during the minority of the owner of such share;
    That, as at the time when the premises were sold under the judgment in the partition action, the Revised Statutes (3 R. S. 195, § 176) forbade the sale of the real estate of an infant in any manner against the provisions of any last will by which the same was devised to the infant, .the court had no jurisdiction to order a sale, and that the sale in the partition suit was void;
    That as the will created a trust in favor of the infants during their minority, the sale was in direct violation of the statute, which declared that every sale, conveyance, or other act of a trustee in contravention of such a trust should be absolutely void;
    That the sale of the property and its purchase by the guardian ad litem of the infant in her own name was in violation of the statutory provision that no. guardian of an infant party to a partition suit, should purchase or be interested in the purchase of any lands, which were the subject of the suit, except for the benefit or in behalf of such infant, and that all sales made contrary to such provision should be void;
    That the purchase of the lands by the guardian ad litem in her own name, raised a presumption that the purchase was made in her own interest, and that, if the fact was otherwise, the burden was upon the guardian to show that the purchase was not such a one as the statute condemned;
    That delay upon the part of the plaintiffs in moving to recover possession of the premises did not affect their rights, since by statute the sale in question was rendered absolutely void.
    It is a general rule of evidence that where an act is prohibited, except in certain specified cases, the burden is upon the party claiming the benefit of the exception to bring himself within it.
    Appeal by the plaintiffs, Margaret Ann O’Donoghue and others, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of Cortland on the 18th day of July, 1894, upon the decision of the court rendered after a trial at the Cortland Circuit before the court without a jury.

      Frederick A. Gard and Ladislas Kcorge, for the appellants.

      JB. A. Benedict, for the respondent.
   PARKER, J. :

The lands in controversy in this action are a part of those devised by the will of Michael O’Donoghue, and, so far as any question presented by this case is concerned, such will may be -said to have provided as follows:

By the eighth clause thereof the testator devised all of his real estate to his executors in trust to sell the same, to divide the proceeds into eight equal shares, to invest such shares and to apply the interest nnd income therefrom severally to the use of his eight children, one share to each, during his or her minority, and,- upon each of them attaining lawful age, to pay over to such child his or her equal share. By a codicil, however, he subsequently revoked the power •of sale so given, except as to three parcels in the city of New York, and directed that only such excepted parcels should be sold. He further provides that the lands not sold shall be held by his executors under the same trust which was imposed by the eighth clause upon the proceeds which were to be derived from the sale therein directed. He also expressly declares that he does not. design to alter the beneficial interests in such lands, which were given by such eighth clause. In the ninth clause'it is provided that the executors .shall have power, whenever any of his children shall attain lawful age, to make partition of his real estate and allot to such child his equal share thereof.

It is manifest from these provisions that the plain intent of the testator was to preserve to each of his children an equal share, viz., one-eighth, of his real estate, until such child should attain the age of twenty-one years. During the period of his minority his share of the land was to remain unsold, and the rents and income therefrom were to be collected by the executors, as trustees, and applied by them to the infant’s use. Although-power was given them to divide and allot to each child, as he or she became of age, an equal share of such lands, a sale of such share during infancy is directly prohibited.

It is claimed that the ninth clause of the will under consideration gives to each child, upon ariving at majority, the right to have his share of the estate, and that, therefore, in the event that equal partition could not be made by the executors without a sale, a sale was intended and authorized by the testator. In view of the fact that each child, on his arriving at majority, became vested with his undivided share of the lands so devised in the event that the executors did not, or could not, fairly allot it to him in severalty, and that each thus received the full beneiit of all that was given by the will, and in view of the further fact that the testator expressly revoked by codicil the power of sale previously given, we cannot adopt the construction contended for. . "We are not required or permitted to seek the testator’s intent by inference or implication in the face of a purpose so plainly expressed in the codicil before us. The direction and evident purpose of the testator was, that none of the shares of his children in such real estate should be sold during his or her minority.

Some ten years after the probate of such will, one of the executors, a son of the testator, commenced an action for the partition or sale of all the lands so devised, and for a division of the proceeds among the beneficiaries named in said will. The plaintiffs in the present action, who were then infants, were made parties defendant in such action, and their mother, Ann O’Donoghue, the other executor, was appointed their guardian ad litem. No defense was made, and the action resulted in a judgment directing the sale of all the testator’s real estate. The lands in question were sold under such judgment by a referee appointed therein, and were bid off by Ann O’Donoghue, the said guardian of such infants, and a conveyance thereof was executed to her by the referee upon May 25, 1810. Subsequently, in April, 1876, she executed a mortgage upon such' premises to secure a loan of $1,500 made to her. Such mortgage was foreclosed, the premises were sold thereunder, and in August, 1880, this defendant acquired the title which was so mortgaged and sold. The plaintiffs bring this action of ejectment to recover an undivided three-sevenths of the premises.

It appears that one of the children of the testator died without issue, and, under the will, his share became vested in his surviving seven brothers and sisters.

At the time the premises were sold in the partition action, the Re vised^ Statutes (Yol. 2, m. p. 195, § 176) provided that “No real estate (of an infant) or term for years, shall be sold, leased or disposed of in any manner against the provisions of any last will, or of any conveyance by which such estate or term was devised or granted to such infant.” The plaintiffs claim that by reason of such statute the court was without jurisdiction to render a judgment directing the sale of the property in question; that, hence, all proceedings under such judgment were utterly void, and'that their interests in the premises were not affected by the referee’s conveyance to Ann O’Donoghue. Conceding, as we must, that the sale under that-judgment was in plain opposition to the provisions of Michael O’Donoghue’s last will, this claim of the plaintiffs seems to be sustained by the decisions in this State. If the court was without jurisdiction to order such sale, such order was a nullity, and could have no effect whatever upon the plaintiffs’ title. (Craig v. Town of Andes, 93 N. Y. 405, 410; Matter of Will of Walker, 136 id. 20, 29.) That its proceedings were not merely irregular, but were utterly without jurisdiction, is held in Rogers v. Dill (6 Hill, 415). It was there held that a sale of an infant’s real estate by order of the Court of Chancery, contrary to the provisions of a devise, was utterly 'void, and that no title passed thereunder to the purchaser. That was a case where the proceedings to sell were under the statute relative to the sale of infants’ real estate, when necessary for their support and maintenance, but that the rule is equally applicable to a sale in an action for partition is held in Muller v. Struppman (6 Abb. N. C. 343). The reason is the same in each case. In neither proceeding has the court any authority to sell, except by force of the statute (Thompson v. Hardman, 6 Johns. Ch. 436; 17 Am. & Eng. Ency. of Law, 785; 3 Pom. Eq. Juris. § 1390), and in those instances where the statute forbids it the authority is utterly wanting.

The plaintiffs further claim that there was a trust expressed in the, will of Michael O’Donoghue in their favor during their minority, and that the statute declares'that every sale, conveyance of other act of the trustees in contravention of such a trust shall be absolutely void (4 R. S. [8th ed.] p. 2439, § 65); hence, that the acts of the trustees, the one in instituting the partition action, and the other as guardian ad litem of the infants, in allowing judgment of partition and sale to be taken therein by default, were in direct violation of this statute, and that the sale so procured was, therefore, utterly void. The following cases seem to sustain that position, and to hold that the court has no power to render valid, by an order or judgment, an act of the trustees which the statute declares to be void. (Douglas v. Cruger, 80 N. Y. 15, 18; Cruger v. Jones, 18 Barb. 467, 469; Uhl v. Loughran, 22 N. Y. St. Repr. 459; Cuthbert v. Chauvet, 136 N. Y. 326.) If ethe court may not approve and make valid such an act, it would seem to be without authority to order it.

■ At the time of the sale in the partition action it was provided by statute as follows: “ Nor shall any guardian of any infant party in such (partition) suit, purchase, or be interested in the purchase of, any lands being the subject of such suit, except for the benefit or in behalf of such infant; and all sales contrary to the provisions of this section shall be void.” (R. S. part 3, chap. 5, tit. 3, § 58 ; 2 R. S. p. 326.) On the trial of this action, although it appeared from the record that Ann O’Donoghue, the guardian ad litem of these infants, in the partition action purchased the premises in her own name, entered into possession of them as the owner, borrowed the sum of $1,500 about six yeai’s thereafter, and executed a mortgage upon them to secure its payment, and subsequently allowed such mortgage to be foreclosed and the premises to be sold, yet it was held that such sale to her was not void because the plaintiffs had failed to show that she did not purchase them for their benefit. In this ruling we think there was error. All purchases >made by a guardian in such - an action, of infants’ lands being sold therein, are void unless made for their benefit; and where the conveyance is made to the guardian in her own name, and in form for herself individually, and there is nothing in the record nor in the conveyance to indicate that she holds the property in any other person’s interest than her own, the presumption would seem to be that the transaction is such as upon its face it appeal’s to be. At least, if she desires to hold such premises from her wards, the burden is upon her to show that the purchase was not such an one as the statute condemns.

It is a general rule of evidence that where an act is prohibited with an exception, the burden rests on the party claiming the exception to bring himself within it. (Fleming v. The People, 27 N. Y. 329, 334; People v. Weldon, 111 id. 569; Knapp v. O'Neill, 46 Hun, 317, 319.) The fact that an order was entered in the partition action confirming such sale did not strengthen it (Gallatain v. Cunningham, 8 Cow. 374, 375; Terwilliger v. Brown, 44 N. Y. 237, 243), and inasmuch as the guardian ad litem's purchase was made void by statute, delay on the part of these plaintiffs in bringing proceedings to recover possession of tbe premises does not affect tlieir rights. The sale is made absolutely void by the statute, and, therefore, the" title remained wholly in the infants, even as against subsequent bona fide purchasers for value. (See Forbes v. Halsey, 26 N. Y. 53.) Moreover, the defendant can claim nothing as a bona fide purchaser, as the record, through which his title is made, discloses all the facts.

The title to the premises in question vested in these plaintiffs upon their arriving at the age of twenty-one years (Watkins v. Reynolds, 123 N. Y. 211, 217), and the case does not show that it has ever been divested. In that respect the decision of the trial court was erroneous, and the judgment should be reversed.

HaediN, P. J., concurred ; Merwin, J., not voting.

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


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    Almon T. Wilcox and Minnie C. Dexter, Appellants, v. Edward Bread and Edward J. Bread, Respondents.

      Seal estate — conflict between courses and distances and quantity — title to the center of a lake.

    Where courses and. distances coincide with the quantity of land stated in a deed, they will control monuments named in it; but where there exists no such harmony, quantity is seldom resorted to for the purpose of fixing a boundary, and is rarely, if ever, permitted to control a monument or courses and distances.
    Where a conveyance of property lying adjacent to a non-navigable lake describes such property as running to the lake and extending “thence along the said lake*’ east to the north line of a certain lot, the grantee will take title to the center of the lake, although by such a construction he will receive more land than the number of acres mentioned in the deed.
    Appeal by the plaintiffs, Almon T. Wilcox and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Osw. go on the 22d day of October, 1894, upon a nonsuit granted after a trial at the Oswego Circuit, before the court and a jury, on the 18th day of October, 1894.

      O. M. Reilly, for the appellants.

      Riper <& Riee, for the respondents.
   Parker, J.:

The plaintiffs seek to recover from the defendants for large quantities of ice. taken by such defendants from Fish lake in the town of Granby, in Oswego county. They make this claim as owners of the land under that part of the lake from which the ice was taken, and they concede that if their title to that land fails they cannot maintain their action. They further concede that they have failed to establish such title in themselves, if the deed which George D. Wickham executed to Henry Bakeman, December 4, 1818, included within its description the land in question.

The lands so described lie upon the easterly side of Fish lake, and the question arises over the effect to be given to the language describing their western boundary, when read in connection with another statement in the same description as to the number of acres intended to be conveyed. The description is substantially as follows:

“ All that tract, piece or parcel of land situate in the said town of Granby, formerly Lysander, and part of Lot No. 4 in the said town, on which the said Bakeman now lives. Beginning on the Oswego river at the southeast corner of the fifty acres sold for the defraying the expenses of the surveying the said lot; from thence up said river,” etc., etc., through various courses, and then proceeding as follows: “ From thence north 83 degrees west forty chains and seventy-five links to Fish lake; thence along the said lake to the north line of the said Lot No. 4. Thence along the same east, twenty-five chains,” etc., through several courses, etc., to the place of beginning, containing one hundred acres, being the number of acres hereby intended to be conveyed.”

The defendants claim that by this description Bakeman took title to the center of the lake, or at least so far out into the lake as Lot No. 4 extended; that the part of the lake from which they took the ice was upon that part of Lot No. 4 which extended under the waters of the lake, and that they had acquired through Bakeman’s title the right to so take it. .

The plaintiffs claim that by such description Bakeman took only to the edge of the lake, and that so much of Lot No. 4 as extended westerly, and out under the waters of the lake, remained in Wick-ham, and that through the will of Wickham, they have acquired his title thereto.

The trial court held that by such conveyance Bakeman acquired title to the lands in question, and nonsuited the plaintiffs, and from the judgment entered thereon the plaintiffs have taken this appeal.

It seems to be settled in this State that a conveyance of land lying adjacent to such a lake as this, i. e., not navigable, which describes it as running to the lake, and thence along the same ” to some other monument or point designated, carries the title to the center of the lake. (Gouverneur v. National Ice Co., 134 N. Y. 355.) The decision in that case must control this case, unless other expressions in the description indicate a contrary or a different intent.

It appears as an undisputed fact in the case that there are about forty acres of Lot No. 4 extending westerly under the waters of the lake, and the plaintiffs contend that it was not intended that the west line should be located so far out into the lake that it would include 140 acres in the description, because it is expressly stated at the end of such description that the intent is to convey 100 acres. In other words, that the statement-of the number of acres intended to be conveyed clearly dispels the idea that the west line was to be located any further west than the edge of the lake. But it is just as explicitly stated that the lands conveyed are to extend up to the lake and along the lake, and the plaintiffs’ counsel docs not claim but that under the description the grantee acquired title clear up to the water’s edge.

It is a conceded fact in the case that there were upwards of 103 acres included within such description, and the statement that 100 acres were intended was evidently not based upon any accurate survey made, and the adoption of the water’s edge as the west line of the premises intended to be conveyed.

The statement that 100 acres were intended to be conveyed was evidently a mere ■ estimate as to the number of acres which the grantee was obtaining, and more than likely had reference alone to the acres of land and not to the amount of water. It seems that the grantee was living on the premises conveyed; it is plain that he was to have all the land up to the water’s edge, clear across the east end of the lake, and it is quite improbable that the conveyanee was intended to cut liim off from the use of such water, and also cut off the grantor from any access to it at that end of the lake.

We do not think that the statement of the number of acres intended'to-be conveyed - clearly-manifests such an intent or is sufcient to change the meaning naturally given to such language as the parties have chosen in describing their western boundary. It is true that where courses and distances coincide with the quantity stated together, they will control monuments named in the deed. Such are the cases cited by plaintiffs’ counsel (Higinbotham v. Stoddard, 72 N. Y. 94), but in this case no such harmony is shown, and it is a familiar rule that quantity is seldom resorted to for the purpose of fixing a boundary, and is rarely if ever permitted to control monuments or courses and distances. (2 Am. & Eng. Ency. of Law, 499, 508.)

The lake was evidently taken as the westerly boundary of the land conveyed. It is so expressly stated in the conveyance, and such statement must be given that significance, which, in the absence of a clearly expressed intent to the contrary, the rule in this State gives it.

The presumption is, that the intent was to pass- the title to the center of the lake, and nothing in the terms of the grant or arising by necessary implication has overcome it. (Mott v. Mott, 68 N. Y. 246; Matter of Ladue et al., 118 id. 219.)

Nor do we find in the case any conflict of evidence concerning any fact bearing upon the question of intent that made it a question lor the jury.

We conclude that by the conveyance in question Bakeman acquired title to the lands upon which the alleged trespass by defendants was committed. The plaintiffs, therefore, had neither possession of nor title to such lands, and cannot maintain this action.

The nonsuit was right and the judgment entered should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. The Delaware, Lackawanna and Western Railroad Company, Appellant, v. The County Court of Onondaga County, Respondent.
    Highways— certiora/ri —- the petitioner and the town are proper pa/rties — the highway commissioner is not— what court may bring in new parties.

    Where proceedings instituted under the Highway Law (568 of 1890), resulting in a decision favoring the laying out of a highway, are reviewed upon certiorari at the instance of a landowner, across whose lands the proposed highway is to he built, the petitioner in the proceedings to lay out such highway may properly be made a Tarty defendant, and be allowed to defend the matter.
    He is a person “specially and beneficially interested in upholding the determination to be reviewed,” within the meaning of section 2187 of the Code of Civil Procedure.
    The highway commissioner of the town in which such highway is proposed to be built has no more interest in the proceeding than any other taxpayer, and is not properly made a party to the proceeding, although he may possibly be the proper officer to make an application to the court that the town be made a party.
    A town may properly be made a party to such a proceeding, but this can only be done by the court before which the certiorari is brought to a hearing, an appellate court having no power to do so.
    Appeal by the relator, The Delaware, Lackawanna and Western Railroad Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 18th day of July, 1895, directing that William A. Gere, the petitioner upon whose application the proceedings, to review which the relator procured a writ of certiorari, were instituted, and Grant 1VI. Armstrong, as commissioner of highways of the town of Geddes, New York, be made parties defendant to the proceedings upon such certiorari, and that they be allowed to defend said proceedings.

      Jenney, Jenney & Stolz and Benjamin Stolz, for the appellant.

      Gill, Stillwell de White, for the respondent.
   Parker, J.:

William A. Gere made application to the County Court of Onondaga county, under the provisions of section 83 of the Highway Law (Chap. 568 of the Laws of 1890), for the appointment of commissioners to ascertain and determine the necessity of a highway which he proposed to have laid out across the lands of this relator.

The court appointed commissioners and they filed a decision in favor of laying out such highway. Thereupon Gere, “ as a party interested in the proceeding,” under the provisions of section 89 of such law, applied to such court to confirm this decision. The court confirmed the decision and the relator thereupon obtained a certiorari to review the proceedings so had. It was directed to the County Court, and that tribunal is the only party defendant which appears on the record.

Gere, and Armstrong, who was the commissioner of highways of the town in .which the highway is situated, moved at Special Term to be brought in as parties to the proceedings on the certiorari, and an order was granted to that effect. Prom such order the relator appeals to this court.

Manifestly, it was not the duty of the County Court, upon the return of tlio certiorari, to appear and defend its proceedings (People ex rel. Breslin v. Lawrence, 107 N. Y. 607), and manifestly it is but just that whoever is interested in upholding such proceedings should have an opportunity of being heard in answer to such writ.

The provisions of section 2137 of the Code of Civil Procedure were designed to meet just such a case as this. It provides that in 'the discretion of the court “a person specially and beneficially interested in upholding the determination to be reviewed,” may be admitted as a party defendant.

We have no hesitation in holding that a person upon whose motion and in whose favor an order of the court has been granted, is “specially and beneficially interested” in upholding it within the meaning of that section, and judicial discretion is well exercised in giving him an opportunity to do so. Although not deciding the precise question here presented, the case of People ex rel. Burnham v. Jones (110 N. Y. 509, 512) may be cited as approving these views.

The question whether the highway commissioner should have been admitted as a party defendant is not so easily determined.

When it shall be finally determined that the highway shall be laid out, it is, by section 98 of the Highway Law (Chap. 568 of the Laws of 1890), made the duty of the commissioner of highways to carry out such determination, and thereafter he has general charge of the same. Rut until such determination is finally made, he has no part or duty in the proceedings. Evidently the town is interested in them; it has to pay the damages assessed for opening the highway, and all the cost and expenses of the proceedings; but the commissioner seems.to have no more interest than any other taxpayer. (People ex rel. Bevins v. Supervisors of Warren County, 82 Hun, 298.)

It is true that under section 15 of the Highway Law he may bring an action “ in the name of the town * * * to sustain the rights of the public in and to any highway in the town,” and it may be that by virtue of such power he is the proper officer to apply to bring in the town as a defendant in these proceedings, but whether that be so or not, certainly beyond that he does not in any way represent the town, and has' no authority for taking its place as a defendant in such proceedings.

It is suggested by the appellant’s counsel that, if we think the town is entitled to notice, we now make an order bringing it in as a party defendant in the proceedings. That can be done, under the provisions of section 2137 (supra), only by the court before which the certiorari is brought to a hearing. It cannot be done upon this appeal.

We conclude that the petitioner, Gere, was correctly made a defendant in the proceedings, but that the commissioner, Armstrong, Lad no such interest as warranted his being made a party.

All concurred.

So much of the order appealed from as makes Commissioner Armstrong a party defendant in the proceedings is reversed. In all •other respects it is affirmed. No costs are allowed to either party.