author: Mebwin, J.:

text:
    J. Milford Andrews and Another, Respondents, v. Belle N. Whitney and Another, Appellants, Impleaded, etc.

      Divorce — alimony — what surplus income can he reached hy a judgment creditor's suit — time of m'eation of the debt.

    The surplus income resulting from a trust fund created for the benefit of a judgment debtor, which can be reached by her creditors, is that which is beyond what is necessary for the suitable support of the debtor, and those dependent upon her, in the manner in which they have been accustomed to live.
    In an action for divorce the amount of alimony is fixed, having special reference to the manner in which the wife has been accustomed to live, and such a sum is determined upon as is suitable for the support of the wife, having regard to the circumstances of the respective parties, and if in a creditor’s suit the question as to what is'a suitable sum for the maintainance of the wife can bo reconsidered at all, there must be kept in special view, in the reconsideration thereof, the manner in which the wife has been accustomed to live.
    The effect of the existence of a trust fund, to the income of which (in addition to the alimony) the wife is entitled, considered.

      Semble, that a creditor, whose debt was contracted and in existence before the date of the decree, in an action brought by the judgment debtor to secure an absolute divorce from her husband, cannot reach alimony awarded to the wife thereby.

      Appeal by the defendants, Belle N. Whitney and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 15th day of February, 1894,'upon the report of a referee, with notice of an intention to bring up for review on such appeal said judgment.

      Won. G. Tracy, for the appellants.

      Keovnedy da Toss, for the respondents.
   Mebwin, J.:

This action is in the nature of a creditor’s bill, and is based on a judgment recovered by the plaintiffs against the defendant Belle N. Whitney on the 5th day of June, 1893, for $341.33 damages, besides costs. The recovery was on a note which was given for a balance of an account for groceries- furnished by plaintiffs to the defendant. The account commenced in September, 1891, and ended in November, 1892. The total of the purchase was $614.84, and payments from time to time were made to the amount of $34J.15.

Prior to May 13, 1889, the defendant Belle N. Whitney was married to the defendant James W. Whitney and resided with him in the city of Rochester. The defendant Belle Augusta Whitney lived with them. She was the daughter of Mrs. Whitney by a prior marriage, and was, in May, 1889, about fifteen years old. Shortly prior to May 13, 1889, Mr. and Mrs. Whitney separated, and at that date an agreement of separation was made, the defendant Asliley being the party of the third part or trustee.

By the second clause of this agreement Mr. Whitney agreed to pay to Mrs. Whitney, for her support and maintenance, during the time she should remain his wife or widow, or during her life, if she should not marry until after his death, the annual sum of $3,000 in equal monthly payments in advance. He also agreed to place in the hands of the trustee the sum of $8,000, to be used by him in the purchase of a dwelling for the occupancy of Mrs. Whitney, the title to be in the trustee as such, and he to allow Mrs. Whitney to occupy it as long as she should live. If, however, she should prefer to rent a dwelling, dr if, after a dwelling was procured, she gave up its use, it was then the duty of the trustee to invest the said $8,000, or the proceeds of sale of any dwelling that had been purchased, and pay over to Mrs. Whitney during her life the income derived from the fund. Upon her death the fund should be transferred by the trustee to the daughter Belle Augusta for her own use and benefit. By the fifth clause of tlie agreement security for the payment of the annuity was provided for by mortgage to the trustee on certain real estate, and the trustee covenanted to indemnify Mr. Whitney against Ids common-law liability for the support of Mrs. Whitney. By the eighth clause Mrs. Whitney agreed that she would at any time, upon request, release her inchoate right of dower in any of the property of Mr. Whitney by joining with him in any conveyance or mortgage thereof, or in such other manner as would effectually release the same, and such release was declared a condition precedent to the payment of any installment of the annuity falling due after any refusal to execute such release, and it was agreed between all the parties that the provision for Mrs. Whitney was ample and sufficient, and was accepted by her as sufficient for her maintenance and support, and in lieu of all dower or right of dower or share in the property or estate of Mr. Whitney, and that she should not have or claim any dower in his estate. By tlie ninth clause certain policies of insurance on the life of Mr. Whitney were assigned to the trustee, Mr. Whitney agreeing to keep up tlie premiums, and when the policies became payable the trustee to collect the moneys due and hold the same for the benefit of Belle Augusta Whitney.

Since this agreement the parties have lived separate. Mr. Whitney made the annuity payments up to February 1, 1893. lie furnished the $8,000 fund, but no dwelling house was purchased, Mrs. Whitney preferring to have the income of the fund. The fund was invested by the trustee, and the income was paid to Mrs. Whitney prior to April 1, 1893.

On January 1, 1893, Mrs. Whitney commenced in the Supreme Court an action against her husband for an absolute divorce for principal cause. No defense was made, but prior to the decree there were negotiations on the subject of alimony, and the provisions in the decree were agreed upon by the parties. The usual judgment for divorce was entered on the 21st of February, 1893. Upon the subject of alimony it provided that the defendant therein pay to the plaintiff therein the sum of $3,000 a year from March 1, 1893, during her life, as a suitable allowance to her for her maiutenance and support, and that this be paid in monthly payments by the defendant therein to William J. Ashley, as trustee for the plaintiff therein, and then paid by the trustee to the plaintiff. Ashley was in the decree appointed trustee of Mrs. Whitney for the purposes of the decree, and the defendant therein was required to give to the trustee, as security for the annuity, his bond and a mortgage on certain real estate therein specified. It was also adjudged that except as therein specifically provided, the decree should in .no wise affect the agreement of May 13, 1889, “ which said agreement shall remain unimpaired and in full force, except the provision in the second subdivision thereof for an allowance of $3,000 annually to the plaintiff in this action, and also excepting the fifth subdivision thereof, all of which subdivision is hereby abrogated and annulled.” And it was provided that “ the said plaintiff and her said trustee surrender and pay over to the defendant all the money and -securities held by said trustee under said agreement, excejit the sum of $8,000 provided for by clause 4 of said agreement, and the life insurance and policies therefor mentioned in the ninth clause thereof, and that the defendant release to said trustee and to Belle Augusta Whitney, daughter of said plaintiff, all his interest in or control over said sum of $8,000.”

' On the same day that the decree was entered an indenture of release between Mrs. Whitney, as party of the first part, and Mr. Whitney, as party of the second part, was executed and acknowledged, in and by which, after a reference to the judgment of divorce that day entered, and a recital that the party of the first part had agreed, for the consideration therein stated, to make the release pursuant to chapter 616 of the Laws of 1892, the party of the first part in consideration, as therein stated, of the sum of $4,500 to her paid, the receipt whereof was thereby acknowledged, released to the party of the second part all her inchoate right of dower in any real estate of which he was seized at the time of the granting of the judgment of divorce, or had since acquired, and also all the interest and estate which she had or could have in his estate, real or personal, as his former wife, or which should in any event come to her as his wife or widow if the judgment of divorce had not been granted. It was stated that the agreement of May 13,1889, should not in any manner be affected except so far as it was modified by the divorce judgment. The party of the second part in the release, “ in consideration of the execution hereof by the party of the first part*” released and assigned “ to the party of the first part, and to William J. Ashley, as her trustee, and to Belle Augusta Whitney, daughter of the party of the first part, all his interest in or control over the sum of eight thousand dollars now in the hands of said William J. Ashley, trustee mentioned and referred to in said judgment.”

Prior to the granting of the decree of divorce Mrs. Whitney had become indebted to divers persons in about the sum of $10,000, and she was insolvent. The $1,500 referred to in the release was paid by Mr. Whitney to the attorneys of Mrs. Whitney, and it was used by them in paying their charges against Mrs. Whitney, and in paying or compromising some of her debts. On or about April 1, 1893, Mrs. Whitney transferred co Belle Augusta Whitney all her interest in'the $8,000 trust fund. This transfer was made in connection with an application by or on behalf of Belle Augusta Whitney to the Supreme Court for an authority and direction to the trustee to pay over to her from the principal of that fund tl;e sum df $700 for the .purpose of paying bills, incurred by her or on her behalf, to that amount for clothing and other necessaries, and also such further sum from time to time as might be necessary for her support and maintenance. Notice was given to the trustee, and the court made an order on April 1, 1893, authorizing the trustee to pay to said Belle Augusta Whitney from the principal of the fund the sum of $700 to defray the bills referred to. On the 6th of May, 1893, on similar application, an order was made directing the trustee to pay over the income of the fund to Belle Augusta, and on the 20th of May, 1893, another order for the trustee to pay over to her $125 of the principal for the payment of past bills, and thereafter pay to her $100 a month for her education and support until the further order of the court. So that at the time of the commencement of this action, on the 30th of June, 1893, the principal of the $8,000 trust fund was reduced to about the sum of $6,700.

The referee found that the transfer from Mrs. Whitney to her daughter of her interest in the $8,000 trust fund was made with intent to hinder, delay and defraud creditors, and, therefore, void as to plaintiffs; that “ the sum of $200 a month is a proper and sufficient, sum for the support and maintenance of the defendant Belle N. "Whitney, and those dependent upon her for their support ; ” that the plaintiffs are entitled to recover, and have and receive the interest and income on said sum of $8,000, or what remains thereof, and the sum of $50 per month from the alimony allowed to said Belle N. Whitney until the plaintiffs’ claim, with the cost and interest, are fully paid.” Upon this basis the judgment appealed from was entered.

The first question to be considered is whether the judgment can be sustained so far as it appropriates to the use of the plaintiffs a portion of the alimony allowed by the decree of divorce. There are, as it seems to me, two effectual reasons against it:

1. The principle of the case of Romaine v. Chauncey (129 N. Y. 566) is against it. -In that case it was held that a creditor, whose debt was contracted and in existence before the date of the decree, could not reach alimony awarded to the wife by the decree. It is, however, claimed that the alimony provided for by the decree is but a continuation of the provisions in the agreement of separation ; that the plaintiffs’ debt was incurred after that agreement and in reliance on its provisions, and that, therefore, the rule in the Romai/ne case should not apply. By the decree, the provision of the agreement as to the $3,000 a year was abrogated. The security was on other property. The scope of the allowance was different. In the agreement it was conditional upon Mrs. Whitney not marrying again during the life of Mr. Whitney. In the decree it was absolute. In the agreement the trustee agreed to indemnify the husband against certain liabilities. That was done away with by the decree. In the agreement the allowance was in part in consideration of her releasing upon request her inchoate right of dower, and was to be accepted in lieu of dower or share in the property or estate of her husband. There is no such condition in the decree. The release of right of dower was provided for by another instrument, and for a consideration entirely outside of the decree. The sum of $4,500 was paid by Mr. Whitney to assist Mrs. Whitney or her attorneys in arranging her debts. This is stated in the release to be its consideration. The referee finds that only a portion of the sum of $4,500 was for such release, and the remainder was for other considerations. So that we must assume that the annual allowance in the decree was alimony pure and simple. It is clear that it was so intended. It came from the husband and was intended only for future debts. Mr. Whitney was not liable for the plaintiffs* debt. He made all the payments the agreement called for. I think that the rule of the JEtomavne case applies.

2. In appropriating a portion of the alimony to the use of the plaintiffs, the theory of the court below evidently was that the alimony aud the income of the balance of the $8,000 trust fund should all be taken as the income of a trust fund, and that the surplus of such income, beyond the sum that may be necessary for the support and maintenance of Mrs. Whitney and those dependent upon her for their support, can be reached under the provisions of the Revised Statutes as to uses and trusts. (4 R. S. [8th ed.] 2438, § 57.) The case of Williams v. Thorn (70 N. Y. 270) is referred to on the general proposition though not a case like the present. Assuming that the statute may be applicable to this case, the question then is whether the proper rule has been applied in order to ascertain the surplus. In the Williams case it is said by Judge Rapallo, with the apparent approval of the entire court, that the surplus which can be reached by creditors is that which is “ beyond what is necessary for the suitable support of the debtor and those dependent upon him, in the manner in which they have been accustomed to live.” This rule was applied in the subsequent conduct of that case. The counsel for plaintiffs on this subject refers to Tolles v. Wood (16 Abb. N. C. 1, 16), where it is said by Chief Judge Ruger that “ neither the manner in which the party has been accustomed to live, or the style in which his associates and acquaintances expect him to live, furnishes a just criterion for determining the amount necessary to provide a suitable support for the oesfrui que frustP These views do not seem to have been adopted by a majority of the court. (See same case, 99 N. Y. 616.) Besides, that case was materially different from the present. In a divorce case the amount of alimony is fixed having special reference to the manner in which the wife has been accustomed to live. A sum is fixed suitable for the support of the wife having regard to the circumstances of the respective parties. (Code Civ. Proc. § 1759.) If, in a creditor’s suit, this question can be reconsidered, it would certainly be appropriate to have in special view the manner in which, the wife had been accustomed to live. That was not done in this case. The evidence offered by the plaintiffs on that subject is not on that basis, nor does the finding of the referee purport to be on that basis. Nor can we properly infer a finding that on this basis will sustain the judgment. The evidence,' so far as it goes, as to the amount necessary for her suitable support, according to the rule laid down by Judge Bapallo, would indicate that the ■ sum fixed by the referee as a proper and sufficient sum was too small.

The further question is whether the judgment can be sustained as to the income of the $8,000 trust fund. The right of Mrs. Whitney to that income is founded on the agreement of separation. If, as the plaintiffs claim, the transfer of this income was invalid, and the income inalienable (Tolles v. Wood, 99 N. Y. 617), and the surplus reachable under the statute above referred to, then the same trouble arises as to the method in which the sum suitable for Mrs. Whitney’s support was arrived at. If the amount of the alimony can be taken into account in determining whether the income of the $8,000 trust fund is necessary for the suitable support of Mrs. Whitney and those dependent upon her, then the element of the manner in which she has been accustomed to live should be considered.

These considerations lead to a reversal. There are some other questions in the case, but they need not now be considered, as upon a new trial they may appear in a different light or not at all.

If the transfer by Mrs. Whitney was fraudulent and there is a surplus, within the rule laid down in the Williams case, having in view the entire income of Mrs. Whitney both under the decree and the prior agreement as modified by the decree, I see no good reason why the plaintiffs under the circumstances of this case so far as they now appear should not have some relief as to the income of the balance of the $8,000 fund. If Mrs. Whitney takes the position that she still has the right to require the purchase of a dwelling, then the question may arise whether she has not abandoned that right. If she has not, still the question would arise whether the plaintiffs cannot reach the income until that right is asserted. These questions need not be determined here.

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

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


source: Caselaw Access Project

author: Mkrwin, J.:

license: Public Domain

text:
    The Rector, Church Wardens and Vestrymen of St. James Church, Syracuse, and Another, Appellants, v. Frederic D. Huntington, as Bishop of the Diocese of Central New York, Respondent.

      Oomplaint dismissed on the opening — what considered on appeal — right of civil courts to interfere in ecclesiastical matters — an Episcopal minister must find Ms remedy within the church — conclusions from facts set up in a complaint a/i’e not to be deemed admitted.

    Where the complaint in an action is dismissed on the opening of counsel, the facts stated in the complaint are to be considered on appeal, and also such , further facts as in the opening are offered to be proved, unless objection to such proof is made on the specific ground that it is not admissible under the pleadings.
    The right of civil courts to interfere in ecclesiastical matters is considerably limited. The general rule is that such right exists only where there are conflicting claims to church property or to funds or to the use of them, or where civil rights are involved.
    The Supreme Court has no right to order the specific performance of a canon of the Episcopal church or to supervise the action of the proper officer thereunder. Where a person voluntarily enters the ministry of the Episcopal church he thereby becomes subject to the rules and canons of that church, and in case of any' dissatisfaction with the manner in which the ecclesiastical affairs of the church are administered, he must accept the benefits or burdens of whatever remedies are provided for him within the church.
    Where an allegation contained in a complaint is a conclusion from the other facts therein stated, it is not to be deemed admitted.
    Appeal by the plaintiffs, The Rector, Church "Wardens and Vestrymen of St. James Church, Syracuse, and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 26th day of March, 1894, upon the decision of the court, rendered at the Onondaga Special Term, dismissing the plaintiffs’ complaint, with notice of an intention to bring up for review on such appeal the order granted on the 2'Tth day of February, 1894, dismissing the complaint.
    The action was in equity, was brought to trial at Special Term, and, upon the opening of the plaintiffs’ counsel, the complaint was dismissed. Upon the order and decision then made, the judgment was entered which is appealed from.

      Lyman, Hitchcock & Lyman and Joseph Mason, for the appellants.

      A. LI. Sawyer, for the respondent.
   Mkrwin, J.:

When a complaint is dismissed on the opening of counsel the facts stated in the complaint are to be considered, and also such further facts as in the opening are offered to be proved, unless objection to such proof is made on the specific ground that it is not admissible under the pleadings. (Clews v. N. Y. Nat. Banking Association, 105 N. Y. 398.) The question then in this case is whether, upon the facts stated in the complaint and such other facts as were stated in the opening, without objection as to their not being pleaded, the plaintiffs are entitled to any relief.

In the complaint it is alleged that the plaintiff, The Rector, Church Wardens and Vestrymen of St. James Church, Syracuse, is a religious corporation, duly organized and incorporated under the laws of this State on August 14,1848, arid located at the city of Syracuse ; that its vestry consists of two church wardens, eight vestrymen, and its rector, except during such periods, if any, as it was without a rector'; and under the laws of the State the vestry are the trustees of the church or congregation, and, as such, have the charge of the property and temporal interests of the corporation, and are bound to manage and care for the same in the interests of the corporation and the congregation connected therewith; that the church wardens and vestrymen have, under the laws of the State, the right and authority, as trustees, to call and induct a rector to the church or congregation as often as there shall be a vacancy, and to fix his salary or compensation; that at the time of the incorporation of the plaintiff corporation there was, and ever since lias been, in 'the United States a religious body or denomination known as the Protestant Episcopal Church in the United States of America, according to the polity of which the State of New York is divided into five parts or dioceses, one of which is called the diocese of Central New York, and another is called the diocese of Western New York; that said church, for the regulation, care and furtherance of its internal affairs, spiritual and temporal interests arid economy, has certain rules and regulations known as canons, which must be observed by the bisbops, rectors and other officers of the church, unless in conflict with the law of the State; that the plaintiff corporation ever since its organization has had and now has a church edifice at Syracuse known as St. James Church, in which religious services have always been conducted in accordance with the rules and ritual of the Episcopal church, and the plaintiff corporation always has been and now is ecclesiastically connected with and a part of the Protestant Episcopal church in the United States, and is ecclesiastically connected with and a part of the diocese of Central New York; that the defendant is bishop of the diocese of Central New York, and has been for the past five years ; 'that the plaintiff Brockway is a duly ordained clergyman in said church, and has been for five years and upwards, and for three years immediately prior to December 1, 1892, he was, according to the provisions of the canons of the church, a resident of the diocese of Western New York and was a clergyman in regular canonical standing in said diocese ; that on the 2oth of November, 1892, the rectorship of the plaintiff corporation being about to become vacant by resignation of the rector, the vestry of the corporation unanimously elected the plaintiff Brockway rector at an annual salary of $1,200, payable in monthly installments, the rector-ship to commence December 1, 1892; that on the 28th of November, 1892, Mr. Brockway accepted in writing the rectorship, and on the same day a notice in writing of such election and acceptance was given by the clerk of the vestry to the defendant, as required by the canons of the church; that the canons of the Episcopal church require that a minister of that church removing into the jurisdiction of any bishop and remaining there for the space of six months, shall, in order to gain canonical residence within the same, present to its bishop a testimonial from the bishop of the diocese in which he last resided, which shall set forth his true standing and character ; that the plaintiff Brockway obtained from the bishop of the diocese of Western New York the required testimonial or “letter dismissory,” so called, which is dated December 1, 1892, and certifies that Mr. Brockway “tea Presbyter of this Diocese in regular standing, and has not, so far as I know or believe, been justly liable to evil report for error in religion or viciousness of life for three years last past that this letter was delivered to the defendant on December 2,1892, pursuant to the provisions of the canons of the church which require a minister removing into another diocese, who has been called to take charge of a parish.therein, to present to the bishop such a letter ; that by the provisions of the canons it became the duty of the defendant to accept the said letter within six months after its presentation to him, and give notice thereof to the plaintiff Brockway and the bishop of the diocese of Western New York, unless lié, the defendant, “ had heard rumors, which he believed to be well founded, against the character of the plaintiff Albert A. Brockway which would form a proper ground of canonical inquiry and presentment,” in which case it became the duty of the defendant to communicate the same to the bishop of the diocese of Western New York, and in that event no duty was imposed upon the defendant to accept such letter unless and until the plaintiff Brockway was exculpated from such charges; that the canons of the Episcopal church provide that no minister, removing from one diocese to another, shall officiate as the rector of any parish or congregation of the diocese to which he removes, until he shall have obtained from the ecclesiastical authority of the diocese into which he has removed, a certificate in the words following: “ I hereby certify that the Rev. A. B. has been canonically transferred to my jurisdiction, and is a minister in regular standing; ” that under the provisions of the canons it was the duty of the defendant to give to the plaintiff Brockway such a certificate within six months after the delivery to him of the letter dismissory unless he refused to accept it because of having heard rumors as above stated; that defendant did not within such period of six months, or at any time, hear rumors, which he believed to be well founded, against the character of the plaintiff Brockway which would form a proper ground for canonical inquiry and presentment, and did not communicate any such to the bishop of the diocese of Western New York, but he refused to give to the plaintiff Brock-way the certificate of transfer, though the same was requested on the 2d of June, 1892, and on the 10th of May, 1892, the defendant returned the letter dismisso'ry to 'the bishop who-issued it; that the plaintiff Brockway continued to officiate as rector of St. James Church, and performed all the services and duties of his said position until the 20th of September, 1893, when the defendant issued and caused to be served on him the following order of inhibition:

“Diocese or Central New York, Sept. 8, 1893.
“ To tlie Rev. A. A. Brookway :
“ Dear Brother. — Pending any proceeaings in your case in the diocese to which you belong, and having corresponded with Bishop' Coxe, it becomes my duty to apply the provision and direction given in -title 1, canon 3 of the Digest, and I hereby admonish and forbid! you to officiate in the Diocese of Central New York.
“ I need not now say with what regret this prohibition, made necessary by your continued violation of the law, with aggravating incidents, and due to the order and authority of the church, is issued.
“ Sincerely your friend, '
' “F. d. Huntington!
Bishop of the Diocese of Genital JDew YorhP

That upon the service of this order the plaintiff Brockway ceased to officiate as rector, and has not so officiated since; that there were no proceedings pending against the plaintiff Brockway, or in which he was interested, in the diocese where he belonged, or in any diocese, at the time of the writing or receipt of said order; that the canon referred to in the order, and upon the authority of which the defendant claims to act, is as follows:

“ If a clergyman shall come temporarily into any diocese un er the imputation of having elsewhere been guilty of any crime or misdemeanor, by violation of the canons or otherwise, or if any clergyman, while sojourning in any diocese, shall misbehave in any of these respects, the bishop, upon probable cause, may admonish such clergyman, and forbid him to officiate in said diocese. And if, after such prohibition, the said clergyman so officiate, the bishop shall give notice, to all the clergy and congregations in said diocese that the officiating of the said clergyman is, under any and all circumstances* prohibited ; and like notice shall be given to the bishop, or if there be no bishop, to the standing committee of the diocese to which the said clergyman belongs. And such prohibition shall continue in force until 'the bishop of the first-named diocese be satisfied of the innocence of the said clergyman, or until he be accpiitted on trial.”

That for over five years last past it has been the custom in the diocese of Central New York to permit rectors not belonging to that ■diocese and not canonically residents thereof, to officiate as rectors of Protestant Episcopal churches in that diocese without obtaining the certificate of transfer or a license from the bishop of such diocese, and that this custom was known to the plaintiffs and the defendant ; that the plaintiff Brockway had license and authority from the defendant to officiate in said St. James Church during the time he did so officiate before, on and after the 1st of December, 1892; that the canons of tile said church provide among other things that every minister and rector of that church shall be liable to presentment and trial by and before the proper ecclesiastical body or authority of that denomination for “ conduct unbecoming a clergyman of said church,” and if found guilty he shall be admonished, suspended or degraded, according to the canons of the diocese in which the trial takes place; that when ordained as a minister, the plaintiff Brockway, as is required by the rules of the church of every minister when ordained, promised and vowed canonical obedience to the bishop of the diocese where he resides or belongs.

The opening did not materially vary the case. It, however, was ■stated that prior to the election of Brockway there was some negotiation between the vestry and the defendant, in which the defendant ■objected to the election of Mr. Brockway, and there was, prior to the order of inhibition, correspondence between the defendant and Brockway concerning his right to officiate. There were also in the complaint general allegations that the acts and conduct of the defendant were unlawful and wrongful; that the canons as to certificate of transfer, and as to the right to issue the order of inhibition, were null and void, as in conflict with the laws of the State; that the right of the plaintiffs to enter into a contract had been improperly interfered with to their great damage.

The relief asked was substantially that the defendant be compelled to give a certificate of transfer, that the order of inhibition be set aside as null and void, and that the defendant be restrained from interfering with the carrying out of the contract between the plaintiffs.

In the answer most of the material allegations of the complaint are denied, and in substance it is alleged that the acts and conduct of defendant have been in entire conformity and in accordance with the rules and canons of the church.

The plaintiff corporation was incorporated under chapter 60 of the Revised Laws of 1813 (2 R. L. 1813, 212.) By section 1 of that act the church wardens and vestrymen are given power to call and induct a rector to such church or congregation as often as there shall be a vacancy therein.” This was amended by chapter 803 of the Laws of 1868 (§ 1, subd. 11) by adding thereto the words and to fix his salary or compensation.” One of the theories of the complaint is that these statutes gave the church wardens and vestrymen so absolute a power to call and induct a rector that the canon which required a certificate of transfer before the plaintiff Broekway could officiate, atad the canon which authorized the defendant to prohibit his officiating, were, as to the plaintiffs, null and void, as being in conflict with the statutes above referred to. I do not understand that this position is now claimed by the plaintiffs to be correct. On the contrary, it is asserted that the affairs of St. James Church must be administered in accordance with the rides, usages and customs of the denomination to which tlic corporation belongs (see § 1, chap. 116, Laws of 1816; People ex rel. Peck v. Conley, 12 Hun, 98, and cases cited), and the plaintiffs claim that the defendant should be compelled to give a certificate of transfer in accordance with the canon on the subject, and that the order of inhibition should be set aside as not justified by the canonical provision. So that, in effect, the action is to compel the observance by defendant of the canons of the church so far as they may affect the right or power of' the plaintiff Broekway to carry out his contract with the other plaintiffs.

The right of civil courts to -interfere in ecclesiastical matters is considerably limited. The general rule is that such right exists only where there are conflicting claims to church property or funds or the use of them, or where civil rights are involved. The question here is whether the right of the plaintiff Broekway to officiate as a clergyman in the diocese of Central New York is such a civil right as to give him a standing in the civil courts.

In most of the cases that are cited in the elaborate brief of the learned counsel for the appellants the question arose between rival claimants to church property or its use, or to the use of trust funds, or in cases brought for a recovery of salary. There are several, however, cited which come nearer to the present case and should be here referred to. In Walker v. Wainwright, Bishop, etc. (16 Barb. 486), a motion was made by plaintiff for an injunction to restrain the defendant from prosecuting a certain sentence of an ecclesiastical tribunal against the plaintiff by pronouncing judgment of displacement from the ministry. In the opinion it is said: u The only ground on which this court can exercise any jurisdiction in this case is that the threatened action of the defendant may affect the civil rights of the plaintiff, for the protection of which he has a proper recourse to the civil courts. The rights which are here invoked., for that purpose, are his exemption from taxation and the performance of certain civil duties. Conceding (though without expressly ruling the point) that here is ground enough for the action of this court, it becomes material to say that the only cognizance which the court will take of the case is to inquire whether there is want of jurisdiction in the defendant to do the act which is sought to be restrained. I cannot consent to review the exercise of any discretion on his part, or at all inquire whether his judgment or that of the subordinate ecclesiastical tribunal can be justified by the truth of the case. I cannot draw to myself the duty of revising their action, or of canvassing its manner or foundation, any further than to inquire whether, according to the law of the association to which both of the parties belong, they had authority to act at all. In other words, I can inquire only whether the defendant has the power to act, and not whether he is acting rightly.” The question was then considered on that basis arid the motion was denied.

In O’Hara v. Stack (90 Penn. St. 477) the plaintiff Stack was a priest in the ministry of the Catholic church, and had been for several years pastor of a church at Williamsport. This was in the diocese of Scranton, of which the defendant O’Hara was bishop. O’Hara undertook to remove Stack from his pastorship, and forbade his exercising any priestly functions in Williamsport. Stack thereupon brought an action in equity to restrain the bishop from removing him as pastor of the church or prohibiting him from exercising priestly functions, and also for a restoration. A decree was made declaring that the removal and prohibition were unlawful, but refusing restoration. The bishop appealed, as a portion of the costs were charged upon him. The court says that the appellant has no just cause to complain of the decree; that the profession of a priest is his property, and a prohibition of the exercise of that profession by bis bishop, without accusation or bearing, is contrary to the law of the land; that a right of a priest to the revenues of his church ■derived from pew rents and voluntary offerings, though uncertain in amount, and there is no specified salary, is a right of property which the law will recognize. Reference is made in the opinion to a statute which expressly gave the Court of Common Pleas, in which the decr.ee was made, the supervision and control of unincorporated societies or associations.'

In Runkel v. Winemiller (4 Har. & McH. 429) it was held that a mandamus was proper to restore to his pulpit a pastor of the Dutch Reformed church who had been wrongfully dispossessed by a portion of his congregation, it appearing that there was attached to the office temporal rights or emoluments. In Union Church v. Sanders (1 Houst. 100; 63 Am. Dec. 187) a mandamus was refused, there being no fees or emoluments attached to the office other than voluntary contributions, and it was said that mandamus lies for enforcement of legal rights only and not for those of a purely equitable character, nor for those of a mere spiritual or ecclesiastical nature, and that the right to the office and its functions being derived from ecclesiastical authority, cannot under any aspect be viewed as temporal rights.

On the part of the respondent our attention is particularly called to the case of Connitt v. The Reformed Prot. Dutch Church of New Prospect (4 Lans. 339; affd., 54 N. Y. 551) and Chase v. Cheney (58 Ill. 527). The latter case was an action in equity brought by Cheney, the plaintiff in the court below, to restrain the defendants therein from proceeding as an ecclesiastical court with the trial of Cheney for alleged offenses and misconduct as a presbyter of the diocese of Illinois and rector of a church in Chicago. The chief reason alleged for the interposition of the civil court was the want of authority in the spiritual court to try him, and a misconstruction of the canons. It was held that the civil courts will interfere with churches and religious associations where rights of proporty or civil rights are involved, but will not revise the decisions of such associations upon ecclesiastical matters merely to ascertain their jurisdiction, and that the decisions of ecclesiastical courts are final as to what constitutes an offense against the discipline of the church; that a rector of the Protestant Episcopal church has not such a vested right in Ms office, such a property in the right to preach, and in the salary and emoluments pertaining thereto, as will authorize the civil courts to interfere upon that ground to restrain an ecclesiastical court in his trial for an alleged offense against the canons and discipline of the church, and that the contract of employment and for his salary must be construed and enforced by reference to the canons which form a part of it, and if the minister be suspended and deposed for any ecclesiastical offense his right to the salary and emoluments is gone. And it was said that the minister, in a legal point of view, is a voluntary member of the association to which he belongs. The position is not forced upon him, he seeks it. He accepts it, with all its burdens and consequences, with all the rules and laws and canons then subsisting, or to be made by competent authority, and can at pleasure and with impunity abandon it.”

In the Gonnitt case one of the questions was whether the plaintiff was entitled to his salary as pastor, although the ¡pastoral relation had been dissolved by an ecclesiastical court of the denominatioir to which the church of the plaintiff belonged. The church over which the plaintiff was pastor was attached to the religious denomination known as the Reformed Church in America ” and was under the ecclesiastical order and government of that church. In the churches of that denomination the trustees or consistory call the minister, subject, however, to the approval of an ecclesiastical body called the classis, and this body in a proper case had the power of dissolving the pastoral relation. It was held that the relation of pastor and people was purely ecclesiastical and that ecclesiastical tribunals alone have cognizance of it; that the contract between the particular church and its pastor was conditional and dependent upon ecclesiastical relationship, and being so the salary could not be recovered after the dissolution of the pastoral relation by an authorized church tribunal. It was said: The secular courts have no jurisdiction over the ecclesiastical rights of either pastor or peoyile; neither can resort to those courts for the protection or enforcement of sucl,r rights. The fact that the civil contract is subsidiary to this relation does not serve to bring this within the jurisdiction of the civil authorities. Nothing in the case of Austin v. Searing (16 N. Y. 112), religd upon by the plaintiff, warrants the conclusion that it does. The doctrine of that case is, that the civil courts will not recognize tlie adjudications of voluntary associations upon the property rights of the members of such associations. Now, inasmuch as the relation in question is not a civil one, dependent upon municipal law, but wholly ecclesiastical, and wholly dependent upon ecclesiastical rule, and its administration, by the church judicatories, it is not for this court to review the decisions and judgments of such church judicatories. Over them, and the administration of their rules and usages, we have no jurisdiction. No civil right is infringed by them in dissolving the pastoral relation. Mr. Connitt has no right to the continuance of such relation, cognizable in the civil courts, and, consequently, any wrong done him by the church courts, in its dissolution, is not one cognizable by tlie civil courts, either in an original or appellate proceeding. The right to salary, etc., it is true, is, by contract, made dependent upon the continuance of the pastoral relation. But this does not bring such continuance within the cognizance of the civil courts. They can inquire only into the fact of the continuance. The relation is, nevertheless, controlled by the ecclesiastical authorities; and the fact of their dissolution of it is conclusive.” Upon the affirmance of this case in the Court of Appeals it was held that when ecclesiastical judicatories have jurisdiction, civil courts cannot inquire whether they have proceeded according to the laws and usages of their church or whether they have decided correctly, but their decisions are final and binding upon the parties and courts. It was said that the decision of such tribunals as to their own jurisdiction in ecclesiastical matters, where there is not clearly an absence of jurisdiction, should receive great weight in civil courts.

In Attorney-General v. Geerlings (55 Mich. 562) it was held that the court would not inquire into the validity of the election of a deacon; that the office was ecclesiastical, not statutory, and is controlled by the unincorporated membership of a religious association, the decision of whose tribunals upon the election is final, and that the fact that the deacons are authorized by statute to be ex offieio trustees of the corporation does not put the religious body and its elections under the control of the temporal courts. In McGuire v. St. Patrick's Cathedral (54 Hun, 207) it was held that the question whether a person who was a member of a Roman Catholic church died in communion with that church, and so became entitled to burial in his lot in a Catholic cemetery, was, under the usages and discipline of that .church, to be determined by the ordinary or bishop, and that the decision of that officer adverse to that right, was conclusive in an action by the representatives of the deceased to obtain such burial, although by the rules of the church no provision was made for a hearing, and none took place, and the decision w'as based on information informally acquired. Judge Yan Brunt, in his opinion, says: “ Under our form of government we do not thiqk that courts can be called upon to compel churches to administer religious rights to persons claiming to be its members, or perform an act in any way impressed with that character.”

The controversy in this case is not over the right of the plaintiff Brockway to recover his salary or the possession of his rectorship under some contract he has made. The theory of the action is that the plaintiffs need something more than they now have in order to make and consummate a complete and ojierative contract. In the complaint they seek either to nullify or to have the benefit of the canon as to the transfer of Brockway to the diocese of Central New York. No good reason, however, appears for treating it as A nullity. So, the plaintiffs say, it should be enforced by this court for their benefit, that we should compel tbe defendant to so qualify the plaintiff Brockway that he might be able to consummate his conditional arrangement.

The right of Brockway to be transferred to the diocese of Cen al New York was simply an ecclesiastical right, based on no contract, but on the canons of the church. Have we any right to order the specific performance of the canon, or supervise the action of the proper officer under it? The weight of authority is, I think, against it.

But, assuming that the plaintiffs have a civil right that may be considered here, the order of inhibition is in their way. This order was issued by the officer who, under the canon applicable thereto, had the right and power to issue such an order. He had, as bishop, jurisdiction of the subject-matter, and Brockway, the person to whom it was directed, was within his diocese seeking from him recognition. Brockway had submitted to him his “letter dismissory,” and this had been returned to the bishop who gave h, and the defendant had refused to give a certificate of transfer. Still Brock-way continued to officiate as a rector, although the canon forbade it until he had received a certificate of transfer in a specific form. In fact, Brockway was violating the canon, although, as he alleges, he followed a custom prevalent in that diocese, and had license and authority from the defendant to officiate in St. James Church during the time he did so officiate. He did not have the certificate required by the canon. The circumstances under which Brockway acted might materially mitigate his offense but would not take away the right and duty of the defendant to enforce the canon. The plaintiffs allege that the order was wrongfully and unlawfully issued, but no facts are stated other than those that have been referred to. It is alleged to be in conflict with the law of the State in that it interfered with the pending contract between the plaintiffs, but this ground is not now pressed. No good reason is apparent for treating the canon as unreasonable or in conflict with the law of the State. The order was temporary in its character, having in view the provisions of the canon under which it was stated to be issued. It is not claimed that Brockway was entitled to previous notice. The canon does not require it. Besides, it is evident from tire statements in the opening that Brockway had notice of the objections that defendant had against him. There was correspondence between them, and the order was the culmination of the matter.

It seems to me very clear that the defendant had jurisdiction to make the order, and if so, under the law as laid down in the Oormitt and the Walker cases, we have no right to consider the'merits and determine whether there was just cause for the order. It being valid and binding on the parties and not reviewable here, the plaintiffs are not in a position here to ask the court for relief. They cannot ask this court to aid them in completing their contract when one of the parties to it is not qualified to enter into it according to canons and rules that bind both parties.

The plaintiff Brockway voluntarily entered the ministry of the Episcopal church and thereby became subject to the rules and canons of that church. In case of any dissatisfaction with the manner in which the ecclesiastical affairs of the church were administered, he took the benefit or burden of whatever remedies were provided for within the church. He has not alleged that he has exhausted the remedies within the organization, an allegation which has in some cases been held to be necessary. Nor is it alleged that he has not a complete remedy within the church for any injustice the defendant may have done.

But the plaintiffs say that they have a complete cause of action in which this court has jurisdiction, in the following allegations : “ That by reason of the aforesaid wrongful and unlawful conduct and acts of the defendant, and because of his said wrongful and unlawful refusal to give the plaintiff Albert A. Brockway said certificate of transfer, and because of his said wrongful and unlawful act in issuing said order of inhibition or prohibitory letter, the plaintiffs are wrongfully and unlawfully prevented from performing and fullfilling upon their respective parts the aforesaid agreement and contract made by them for the services of the plaintiff Albert A. Brockway as rector of St. James Church.” These are rather conclusions from the other facts stated, and are not to be deemed admitted. (Bogardus v. New York Life Ins. Co., 101 N. Y. 337; Coffin v. Grand Rapids Hydraulic Co., 61 N. Y. Super. Ct. 65 and cases cited; Schroeder v. Becker, 22 Wkly. Dig. 261; Moak’s Van Santvoord’s Pl. [3d ed.] 184.) If by these allegations the defendant is sought to be made personally liable for a wrongful act, that is not within the scope of the action. It cannot in this way be turned into an action at law for damages.

The foregoing considerations lead to the conclusion that a case is not presented by the plaintiffs which entitles them in this court to any relief, and that, therefore, the judgment of the Special Term is correct.

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

Judgment affirmed, with costs.


author: JVIeRwiN, J.:

text:
    Julia R. Duane, Respondent, v. Clinton F. Paige and Others, Respondents; Martha J. Clark and Others, as Executors, etc., of Charles Seymour, Deceased, and Another, Appellants.

      Purchase of real estate by an executor upon the foreclosure of a moi'tgage belonging to Ms testator’s estate — witness incompetent under Code of Civil Procedure, % 829 — ■ release to the executor —parol proof to vary it, incompetent — when an executor is a necessary party under section 452 of the Code of Civil Procedure.

    Upon the trial of an action "brought for the purpose of having determined the rights of various persons in certain real estate, one of the defendants, who was interested in the event of the notion, was called by the plaintiff as a witness, and testified that he was present at a mortgage foreclosure sale of the property described in the complaint, and that one Lewis, since dead (who was at that time one of the executors of the estate which owned the mortgage-thus foreclosed), bid the property in at such sale. The question was then asked, “Did Mr. Lewis pay the §2,400 to the plaintiff’s attorney in the action ?” The question was objected to on the ground that under section 829 of the Code of Civil Procedure the witness was not competent to testify as to the transaction, in that he was personally interested in the case, and was testifying in his own interest as to a personal transaction with a deceased person against that person’s representatives in interest. The objection -was overruled and an exception was taken, and the witness answered, “He did not.”

      Held, that such ruling was erroneous;
    That, although the witness was called by the plaintiff, if he was, in effect, examined as a witness in his own behalf or interest, and his evidence would necessarily operate to his own benefit, his testimony would not, by reason of his being called by the plaintiff, escape the prohibition contained in section 829 of the Code of Civil Procedure;
    That, as the witness was present at the foreclosure sale as one of the parties to that action, he was, in reality, if the money was paid in his presence, a party to the transaction;
    That the fact that the answer of the witness was in the negative, did not affect the inadmissibility of the testimony under section 829 of the Code of Civil Procedure.
    Where the executor of an estate buys real estate at a sale, under the foreclosure of a mortgage owned by the estate of which he is the executor, and does not pay any consideration therefor, the legal title to the land is in the executor, but as between him and the legatees, next of kin and creditors of his testator, it is' personal estate, and he holds it as the representative of the deceased. It is immaterial whether the deed to the property is taken in the name of the executor as such, or in his individual name, and the heirs or devisees of the testator cannot question the title of a purchaser from the executor under such circumstances.

      A release was given "by the persons interested in the estate of a 'decedent to the executor thereof, who had in his own name purchased real property upon the foreclosure of a mortgage owned by the estate without paying any consideration therefor, and who took the deed thereof in his own name, which release was in the following terms :
    "Stipulated that Frederick Lewis be and hereby is fully discharged from all liability for all money, property and choses in action and property rights which came to his hands as the property of the estate of Hazard Lewis, and a decree of Surrogate’s Court of Broome county fully discharging him may be entered at any time without further notice; and his acts as executor of the will of Hazard Lewis, deceased, are closed and settled, and he is fully discharged as such executor from all further liability.
    "And a decree to this effect, making it a final decree so far as the liability of said Frederick Lewis is concerned, may be entered at any time. Sept. 7th, 1887.”

      Held, that the expression “all money, property and choses in action and property rights which came to his hands as the property of the estate of Hazard Lewis,” was broad enough to include the property purchased by such executor on the foreclosure sale, which was to be deemed personal property,
    'Where a release is general in its terms, and’there is no limitation by "way of recital or otherwise, the releasor may not prove an exception by parol; the instrument itself is the only competent evidence of the agreement of the parties unless avoided for fraud, mistake or duress, or some like cause; and if the words of the release fairly import a general discharge, their effect may not be limited so as to exclude a demand simply upon proof that at the time of its execution the releasor had no knowledge of the existence of the demand.
    Although when a writing does not contain the whole agreement, the balance of the agreement may be shown by parol, the parol agreement must not be inconsistent with or vary the terms of the written part.
    Where the plaintiff in an- action seeks to reach assets, which, if they exist at all, primarily belong to the personal representative of a decedent, and are to be by him administered upon, such representative is a necessary party to the complete determination of the controversy, and, under section 452 of the Code of Civil Procedure, he should be brought in as a party thereto, although the objection of a want of proper parties to the action is not taken.
    Appeal by the defendants, Martha J. Clark and others, as executors, etc., of Charles Seymour, deceased, and another, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Broome on the 14th day of June, 1893, upon the report of a referee.
    By the judgment appealed from a sale was directed of certain real estate in the town of Fenton in the county of Broome, and the proceeds, after paying therefrom certain costs, were directed to be paid, one-lialf thereof to the plaintiff, one-fourth thereof to the plaintiff as the administratrix of Patrick II. Drake, deceased, and one-fourth thereof to the defendants Clinton E. Paige and Jane L. Boss, as administrators of Caroline L. Paige, deceased.

      Edward K. Olcork, for the appellants.

      Millard & Stewart, for the respondent.
   JVIeRwiN, J.:

On the 3d day of July, 1863, Hazard Lewis, a resident of Binghamton, N. Y., died leaving a will which was duly proved in Broome county on the 15th of July, 1863, and letters testamentary issued to Frederick Lewis, Clinton F. Paige and Horace S. Griswold, the executors therein named. The decedent left him surviving his widow, Maria Lewis, and three children, Frederick Lewis, Jane E. Drake, wife of Patrick II. Drake, and Caroline L. Paige, wife of Clinton F. Paige. By the will, after certain general bequests and devises were made, all the residue, after the payment of debts and expenses, was devised and bequeathed to the wife and the three children equally, one-fourth part thereof to each.

The testator at the time of his death owned a bond and mortgage given by Freeman Bandall to secure the payment of $3,500, and the principal and some interest thereon was then unpaid. The mortgage covered about 201 acres of land.in the town of Fenton. The bond and mortgage passed into the hands of the executors, and were included in the inventory made and filed by them. On the 17th of July, 1867, there then being due on the bond and mortgage about the sum of $4,191, an action was- commenced in the Supreme Court in the names of the executors as such as plaintiffs for the foreclosure of the mortgage, and such proceedings were had that, on the 10th of August, 1867, a judgment of foreclosure and sale in the usual form was 'entered. In pursuance of the judgment the premises were sold by the sheriff on the 26th of November, 1867, and were bid in by Frederick Lewis for the sum of $2,400, and at the same date the sheriff executed and delivered to him a deed, it being recited therein that the bid had been paid by the party of the second part, and the receipt thereof was acknowledged. The deed did not run to Lewis as executor. It is alleged in the complaint that Lewis paid no part „ of the consideration or bid, but in taking the deed to himself made himself the trustee of the owners of the residuary estate. Mr. Gris-wold, one of the executors, was the plaintiff’s attorney on the foreclosure, and he drew the deed to Lewis, and it was duly recorded on November 27,1867. On the 6th of January, 1868, the three executors, as such, united in a deed to one Wilcox of 64 acres, part of the 201 acres conveyed to Lewis by the sheriff. The consideration of this deed as stated therein is $1,700, and it was recorded January 6, 1868. On the 31st of June, 1873, Frederick Lewis and Maria A., his wife, executed to Patrick II. Drake a mortgage upon an undivided one-fourth of the balance of said premises, being about 137 acres. This mortgage covered a large amount of other real estate, and was given to secure the payment of $60,000. It was afterwards foreclosed by Drake and the premises bid in by him, the affidavits of sale being recorded February 11,1876. The jilaintiff as the representative of Drake, who died in 1882, claims by virtue of this foreclosure to be the owner of an undivided fourth in the said premises.

In August, 1870, Griswold, one of the executors, died. On the 25th of August, 1873, Frederick Lewis resigned as executor, under what authority does not appear. He died on the 4th of March, 1890, after the commencement of this suit. After the resignation of Frederick, Patrick II. Drake seems to have acted as executor under an order of the Supreme Court. He died in November, 1882. On the 28th of May, 1885, Frederick Lewis and Maria A., his wife, duly executed and delivered to Charles Seymour a mortgage on the premises in question, for the sum of $600, being money loaned by Seymour to the mortgagors at the time of the execution of the same. This mortgage was recorded.. The papers do not disclose the date of the record, though it may, perhaps, be inferred that it was recorded at or about the time of its execution. Previous to this, and on the 3d of June, 1884, Frederick Lewis conveyed the premises to one Van Name, and he on June 6, 1884, conveyed the_ same to Maria A. Lewis, the wife of Frederick. The purpose of these deeds was to pass the title to the premises or whatever interest Frederick might have therein to his wife, and the consideration was a precedent debt. The deed to Van Name was recorded November 22, 1887, and the deed to Mrs. Lewis on December 18, 1888.

Jane E. Drake, one of the residuary legatees, died in May, 1883, leaving a will, by which all of her property was given to her two children, tlie plaintiff and Yirginia M. Drake. The latter died in 1884, leaving a will giving her property to her sister, the plaintiff. The plaintiff, as the owner of the residuary interest of Jane E. Drake, claims an undivided fourth interest in the premises in question or their proceeds.

Maria Lewis, the widow of Efazard Lewis, was adjudicated a bankrupt on October 31, 1873, and on May 24, 1877, her assignee in bankruptcy executed and delivered to J ane E. Drake a deed purporting to convey among other pieces of property an undivided one-quarter of the premises in question. Under this the plaintiff, as the successor in interest of her mother and sister, claims an undivided one-fourth interest in the premises or their proceeds.

Caroline L. Paige, the other of the residuary legatees, died in June, 1878, intestate, leaving her surviving her husband, Clinton E. Paige, and three children. Clinton F. Paige and Jane L. Paige, now Boss, were afterwards duly appointed administrators. Prior to the commencement of this action all the debts of Hazard Lewis and funeral and testamentary expenses were paid.

This action was commenced March 25, 1889, for the purpose of having determimed the rights of the respective parties in the premises, the plaintiff claiming to be owner of a three-fourths interest therein. The plaintiff, as administrator of Patrick Ií. Drake, deceased, is not a party, nor is Clinton E. Paige, as surviving executor of Hazard Lewis, deceased, a party, nor are Clinton F. Paige and Jane L. Boss, as administrators of Caroline L. Paige, deceased, parties. No objection is raised by the answers of the defendants that there is .any defect of parties.

It is found by the referee that Frederick Lewis, in the foreclosure sale, purchased the premises for the benefit of the estate, and paid no part of the purchase price ; that after he ceased to be executor in 1S73, he could not convey the premises or any interest therein, and that the deed to Maria A. Lewis through Yan Name, as well as the mortgage to Seymour, was inoperative; that the plaintiff, individually, apd as administrator of Patrick H. Drake, was the owner of .a three-fourths interest in the property, and that the administrators of Caroline F. Paige owned the other one-fourth.

The referee also found, at the request of the appellants, that the premises in question have not been in the actual possession of any person within the past twenty years; thg,t no action appears to ha ye been taken by any persons interested in the estate of Hazard Lewis to set aside the deed from the sheriff to Frederick Lewis until the beginning of the'present action in March, 1889 ; that the premises in question were to be treated as personal assets in the hands of Frederick Lewis so far as the heirs and legatees of Hazard Lewis are concerned.

It also appears that prior to May, 188Y, there was a proceeding in the Surrogate’s Court of Broome county entitled, “ In the matter of the intermediate accounting and judicial settlement of the .accounts of Frederick Lewis, Clinton F. Paige and Patrick H. Drake, as executors of the will of Hazard Lewis, deceasedand on the sixteenth of May a decree was made whereby it was adjudged, among other things, that Clinton F. Paige pay Maria Lewis the sum of $1,691.03; that Clinton F. Paige and Frederick Lewis, jointly, as such executors, pay “to Maria Lewis the sum of $11.128.39, and that the executor Frederick Lewis pay to her the sum of $1,288.29, amounting in the aggregate to the sum of $14,10Y.Y1. By the same decree it was adjudged that Clinton F. Paige, either alone, or jointly with Frederick Lewis, pay to Julia H. Duane, the plaintiff herein, either as administrator of Jane E. Drake or of Patrick Ii. Drake, sums in the aggregate amounting to $9,688.69.

On the Yth of September, 188Y, after divers negotiations, the parties interested in the estate executed and delivered an instrument of which the following is a copy:

“STATE OF NEW YOKK — Surrogate’s Court, BrooME CouNTY.
“ In tlie matter of the accounting and judicial settlement of the accounts of Frederick Lewis, Clinton F. Paige - and Patrick II. Drake, as executors of the will of Hazard Lewis, deceased.
Stipulated that Frederick Lewis be and hereby Is fully discharged from all liability for all money, property and choses in action, and property rights which came to his hands as the property of the estate of Hazard Lewis, and a decree of Surrogate’s Court of Broome county fully discharging him may be entered at any time without further notice, and his acts as executor of the will of Hazard Lewis, deceased, are closed and settled, and he is fully discharged as such executor from all further liability.
“ And a decree to this effect, making it a final decree so far as the liability of said Frederick Lewis is concerned, may be entered at any time. Sept, 7th, 1887.”

This was signed by the attorneys for Clinton E. Paige, by Clinton E. Paige and Jane L. Paige, as administrators of Caroline L. Paige, by the plaintiff herein, Julia R. Duane, and her attorney, and by Elaria Lewis. At the same date, and as a part of the same transaction, Maria Lewis and Maria A. Lewis, who claimed as assignee of Maria Lewis to own the interest of Maria Lewis in the estate and in the amounts awarded to her in the decree, executed and delivered a satisfaction of the decree. No money was paid them, except the sum of $1,950 furnished by Frederick Lewis by means of an insurance policy. The delivery of this satisfaction was the consideration of the release. It is found by the referee that the parties executing the release did not intend to include therein the premises in question, or the avails thereof, and that there was no agreement or understanding that the title of Frederick Lewis and Maria A. Lewis to the premises in question should not be questioned, and he held that neither Maria A. Lewis nor the holder of the Seymour mortgage could derive any benefit in this action from the release.

1. Upon the trial the plaintiff called as a witness the defendant. Clinton F. Paige. Among other things, he testified that he was. present at the foreclosure sale in 1867; that the other executors,. Griswold and Lewis, were there, and that Lewis bid off the property and that Griswold was the attorney who brought the suit. The-question was then asked him : Did Mr. Lewis pay the $2,400 to the plaintiff’s attorney in the action ? ” This had reference to the bid for the 201 acres. The objection was made by the appellants that, under section 829 of the Code, the witness was not competent, to testify as to the transaction, in that he was personally interested, in the case, and was testifying in his own interest to a personal transaction with a deceased person against that person’s representatives in interest. The objection was overruled and exception taken, and the witness answered “he did not.” Mr. Paige w'as a party and interested in the event of the action. If the subject of the action was to be deemed real estate, he was tenant by the curtesy of the share of his deceased wife, and if personal property, then he ■was interested, as his wife died intestate, and he would be entitled to a distributive share of her personal estate. Although called by ¡the plaintiff, he was in effect examined as a witness in his own behalf or interest, as the position of the plaintiff and of the witness as to the character or effect of the foreclosure was the same, and his evidence would necessarily operate to his own benefit. Mr. Lewis was then dead. But it is suggested that the question did not call for a ■communication or transaction between witness and the deceased, and that to be objectionable it must appear that the witness participated in the conversation or transaction. The witness was at the foreclosure sale as one of the parties to the action, and if the money was paid in his presence he was in reality a party to the transaction. 'The fact that the answer was negative does not affect the point. 'The latest expression of the Court of Appeals that we have noticed, upon the subject of the participation of the witness in the conversation or transaction, is found in Matter of Bernsee (141 N. Y. 392), where it is said: “ If active participation in the conversation was necessary to exclude an interested witness, and he should as an observer be permitted to testify to transactions in form between the •deceased and third persons, although such transactions were in his interest, it would furnish ’an easy and convenient method in every ■case of evading the statute. The'decisions have enforced the spirit of tlfe statute by excluding such evidence, and have treated transactions between the deceased and third persons in the presence of •interested parties as if the witness actually participated therein.” The exception was, we think, well taken.

The referee also received in -evidence, over the objection and exception of the appellants, statements made by Frederick Lewis in January, 1888. This was after the rights of Maria A. Lewis and of .’Mr. Seymour had accrued, and his declarations as against them were .not competent. They related to what occurred at the foreclosure ¡sale and the conduct of Lewis afterwards, and tended to support the plaintiff’s theory on the subject. Statements of Lewis made after this suit was commenced,, and shortly before his death, were also received in evidence over proper objection and exception. They related to tbe extent of tbe interest be or those claiming from him bad in tbe property. We do not see bow these rulings can be ■sustained.

It is, however, claimed that tbe rulings referred to, if erroneous, were harmless, and did not affect tbe result. That is 'not entirely clear.

2. A more important question arises as to tbe effect to be given to the stipulation or release of September 7, 1887. And in considering this question we may assume that Frederick Lewis did not by tbe transaction upon tbe foreclosure become individually tbe owner of tbe property, but that be held tbe title for tbe benefit of tbe estate. In such a case, as said in Lockman v. Reilly (95 N. Y. 64, 70): “ Tbe legal title to tbe land is in tbe executor or administrator, but as between him and tbe legatees, next of kin and creditors of tbe deceased party it is personal estate, and be bolds it as tbe legal representative of tbe deceased.” On page 71 of tbe Lookmcm case it is said : “ That land bought in by executors on a foreclosure of a .mortgage belonging to tbe estate is to be treated as personal property, which tbe executors may sell, and for which they are accountable as such, has been frequently decided, and it is immaterial whether tbe deed is taken in tbe names of tbe executors as such, or in their individual names. (Clark v. Clark, 8 Paige, 152; Schoonmaker v. Van Wyck, 31 Barb. 457; Valentine v. Belden, 20 Hun, 537; Cook v. Ryan, 29 id. 249.) In all these cases land thus purchased by an executor or administrator is regarded as a substitute-for tbe mortgage foreclosed, and takes its place for all purposes as between tbe executor or administrator and tbe parties interested in tbe estate. It is not to be treated as land belonging to tbe testator. His heirs' or devisees take no direct interest in it, and cannot dispute tbe title of a purchaser from tbe executor, though no power of sale be contained in tbe will. Tbe heirs of an intestate cannot question the title of a ourcliaser from bis administrator who has purchased land under such circumstances. (Long v. O'Fallon, 19 How. [U. S.] 116; Williams on Executors, p. 650, note d.)” In Clark v. Clark (supra) it is said that if upon an accounting tbe land so bid in remains unsold, tbe surrogate may direct a sale thereof and a distribution of tbe proceeds as a part of tbe estate.

Tbe expression in the release, “ All money, property and dioses in action, and property rights which came to bis bands as tbe property of the estate of Hazard Lewis,” is broad enough to include the property in question. It came to his hands, for he took the title to himself individually, and he did not, when he resigned, transfer it to his co-executor. It remains still in his hands to be accounted for as personal assets. That being so, the release applies, unless for some good reason this property is to be excepted from its operation. Tn this line it is found that it was not the intention of the parties to include this in the release. If by this it is meant to be found that there was a mutual mistake in making the language so broad, then the evidence does not, I think, warrant that conclusion. The evidence does not show that Maria A. Lewis, or her assignor, Maria Lewis, who together furnished practically the consideration of the release, did not intend the release should include the property in question. On the contrary, there is evidence that Maria A. Lewis relied on the fact that this property would be released. Neither they nor Frederick Lewis agreed that it should not be. The attorneys for the plaintiff and for Mr. Paige testify that nothing was said in the negotiations about this property, and that they did'not know that Frederick Lewis had the title in his own name. It, however, appears that Mr. Paige had known of it for several years, and the plaintiff had brought a suit of partition, including this property as a part of the real estate owned in common, so that she or her attorney must have known that the mortgage had been foreclosed and the title bid in by some one, and the record showed who took the title, and that a mortgage had been afterwards given thereon. It is not claimed that any of the parties when they signed the release did not fully know its contents. It is said, on the part of the plaintiff, that all that Frederick Lewis wanted was a discharge of the decree. Still, plainly, the release is more than that, and it is presumed that all parties knew it when they signed it. Nor does the evidence show that as between Maria Lewis, Maria A. Lewis and Frederick Lewis of the one side and the other parties who signed the release upon the other side, there was any agreement except such as is indicated by the papers themselves. There was, therefore, no mutual mistake, and it is not claimed there was any fraud.

“ Where a release is general in its terms, and there is no limitation by way of recital or otherwise, the releasor may not prove an exception by parol; the instrument itself is the only competent evidence of the agreement of the parties, unless avoided for fraud, mistake, duress or some like cause. So, also, if the words of a release fairly import a general discharge, their effect may not be limited so as to exclude a demand simply upon proof that at the time of its execution the releasor liad no knowledge of the existence of the demand.” (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.) The rule that when the writing does not contain the whole agreement the balance may be shown by parol does not help the plaintiff, for the parol agreement must not be inconsistent with or vary the terms of the written part. (Chapin v. Dobson, 78 N. Y. 80.)

There is no question about the consideration. (Farmers’ Bank v. Blair, 44 Barb. 641; Morehouse v. Second Nat. Bank, 98 N. Y. 510.) It was a stipulation in the Surrogate’s Court which was intended to furnish a basis for a final settlement and discharge of the executor, Frederick Lewis.

We are of the opinion that the release upon its face covered the claim in question, and that no sufficient ground or reason appears in the case to restrict its operation, and that, therefore, the referee erred in not giving it effect.

3. Clinton F. Paige is the surviving executor of the estate of Hazard Lewis. Lie is not a party to the action in his representative capacity, and is not as such bound by the result. (Rathbone v. Hooney, 58 N. Y. 467; Landon v. Townshend, 112 id. 93; Hall v. Richardson, 22 Hun, 444.) The plaintiff in this case seeks to reach assets which, if they exist at all, primarily belong to the personal representative and are to be by him administered upon. It would seem that the executor as such was a necessary party to a complete determination of the controversy, and that under section 452 of the Code of Civil Procedure he should be brought in, although the objection of want of proper parties is not taken. (Osterhoudt v. Board, etc., 98 N. Y. 239; Peyser v. Wendt, 87 id. 322; Bear v. Am. R. Tel. Co., 36 Hun, 403.) There has been no final.settlement of the estate.

The judgment must-be reversed and new trial ordered, costs to abide the event.

HaediN, P. J., concurred; MaetiN, J., not sitting.

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


author: MerwiN, J.:

text:
    John D. Higgins, Appellant, v. Georgianna M. Kingsley, Respondent.

      Judgment restraining the building of a fence, constn'ued — division fence, liow built.

    A judgment was entered in an action brought to restrain the defendant therein, from placing any fence or obstruction on the plaintiff's land westerly of the boundary line thereof as claimed by the plaintiff, in pursuance of an offer of the defendant, the adjoining owner, which fixed the location of the division line and perpetually restrained the defendant from placing any fence or obstruction on the plaintiff’s property westerly of such boundary line as therein located. The question as to how a division fence should be built, or whether one should be built at all, was not involved in the action.

      Held, that the judgment should not be so construed as to prevent tho defendant-therein from building on the true boundary line a proper division fence.
    A division fence, when properly built, is said to be in contemplation of law upon the line between the adjoining lots. Such fence should be built equally upon the lands of each of two adjoining owners; and if more than half is built upon the land of one party, without his consent, he is entitled to relief.
    When a division fence is built on the boundary line between the lots of two-adjoining owners, so that the posts thereof are two inches on the land of each, if the fence between the posts is built flush with one side of the post, it is improperly constructed, and the owner of the lot, two inches of which has been, thus taken, is entitled to relief in the absence of proof that a proper division fence cannot be built which will be equally on the lands of each party.
    Appeal by the plaintiff, John D. Higgins, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 20th day of December, 1892, upon the decision of the court rendered after a trial at the Oneida Circuit, before the court, without a jury, dismissing the plaintiff’s complaint upon the merits.
    The action was in ejectment to recover a strip of land two inches wide and 105-£ feet long. It was tried at Circuit before the court without a jury, and upon the decision of the court the judgment appealed from was entered.

      D. E. Wager, for the appellant.

      J. 81 Balcer, for the respondent.
   MerwiN, J.:

The parties to this action own adjoining lots in the city of Rome. The defendant undertook to build her portion of the division fence and claims tliat she has placed it along the line equally on the lands of each owner. The plaintiff claims, first, that the defendant had no-right to place any part of it on his land; and, second!, that if she had such right, she has not placed it equally on the land of each, but has by it improperly taken into her own' possession the strip here sought to be recovered.

The first position of plaintiff is based upon a judgment between, the same parties entered shortly before the fence was built. The defendant owned a strip of land twenty-two feet wide adjoining the-easterly side of plaintiff’s lot. There was a dispute between them, as to where the division line was, and the defendant was about to-build a fence westerly of the line as claimed by plaintiff and on the plaintiff’s land as he claimed it. Thereupon the plaintiff brought, an action against the defendant and her husband to restrain them from placing any fence or obstructions on plaintiff’s land and west of the line as plaintiff claimed it. Thereafter, in pursuance of an offer made by the defendants, a judgment was entered fixing the location of the division line and perpetually restraining the defendants “ from placing any fence or obstruction on, or cutting trees from,, lot 14 in block 12, in the city of Nome, N. Y., westerly of the strip of 22 feet, as above located and described, and to remove any such fences or obstructions (if any) placed thereon.” The question as to how a division fence should be built, or whether one should be built at all, was not involved in the action. The defendants were in the attitude of taking more than they were entitled to, as the plaintiff claimed, and the plaintiff sought to stop them. The question in that case was as to where the dividing line in fact should be located. The judgment should not, I think, be construed to prevent the defendant from building on the true line a proper division fence.. (Shaw v. Broadbent, 129 N. Y. 114.) The parties evidently contemplated that a division fence would be built and had agreed upon, the part that each should build. A division fence, when properly built, is said to be, in contemplation of law, upon the line between. the adjoining lots. (Ferris v. Van Buskirk, 18 Barb. 397.)

Was the fence properly built? Posts about four inches in diameter were set about fifteen feet apart along the line. The posts wer® connected with rails which were set into the westerly or plaintiff’s side of the posts and flush with that side. Then upon the westerly side of the posts and rails a wire netting about a quarter of an inch thick and about five feet higb was placed along the whole distance. The posts with the wire netting on were four inches thick, two inches of the posts being on defendant’s land, and the balance of the posts, together with the netting and rails, being on plaintiff’s land. The netting operated to exclude. from the possession of plaintiff, and include upon the defendant’s side of the fence, two inches in width of plaintiff’s land, the whole distance, except as occupied by the posts. This is the space that plaintiff seeks to recover.

There is no doubt of the rule that a division fence should be made equally upon the lands of each. (Warren v. Sabin, 1 Lans. 79 ; Ferris v. Van Buskirk, supra ; Carpenter v. Halsey, 60 Barb. 47; Newell v. Hill, 2 Metc. 180; Pettigrew v. Lancy, 48 Mo. 380.) If more than half is built upon the land of one party without his consent, he is entitled to relief. (Sparhawk v. Twichell, 1 Allen, 450 ; Leprell v. Kleinschmidt, 112 N. Y. 364.)

In this case the trial court has held that the fence was built equally on the lands of each. There is no evidence of any custom to build a division fence in the manner this was built. The plaintiff objected to it in time. Clearly the fence is not equally on each. The defendant has, in effect, appropriated to her own use a certain portion of plaintiff’s lot, small, it is true, but the plaintiff has a right to assert his ownership. (Countryman v. Lighthill, 24 Hun, 407, and cases cited.) There is no evidence that a proper division fence cannot there be made that will be equally on each party.

Ye think the court erred in holding that the fence was built equally on lands of each party, and for that reason the judgment should be reversed.

HaediN, P. J., and MaetiN, J., concurred.

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


author: HaediN, P. J.:

text:
    William Rowe, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Personal injuries — contributory negligence not presumed — when a verdict will not be set aside by the &eneral Term as excessive.

    When it is shown, upon the trial of an action brought to recover damages for personal injuries, that the injury clone to the plaintiff was caused by the failure of the defendant to comply with chapter 565 of the Laws of 1890 (requiring trains to stop at grade crossings), if no negligence is shown to have existed on the part of the plaintiff, it will be assumed that he was free from contributory negligence. Where a question of fact has been fairly submitted to a jury by atrial judge who has listened to the testimony and exercised his power of supervision over the verdict, his action in the premises is entitled to influence with an appellate court in reviewing his refusal to set aside a verdict, and it is not the province of the General Term of the Supreme Court to interfere with the verdict under such circumstances, unless the amount thereof is so great as to indicate that the jury was influenced by passion or prejudice.
    Appeal by the defendant, Tlie New York Central and Hudson River Railroad Company, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tbe clerk of the county of Oneida on tlie 20th day of October, 1893, upon the verdict of a jury rendered after a trial at tlie Oneida Circuit, and also from an order entered in said clerk’s office on the 12th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said order.
    The Rome, Watertown and Ogdensburgh Railroad Company (owned and occupied. by the defendant) crosses at right angles and grade the Ontario and Western railroad at Central Square, Oswego county, A signal is erected for the use of both roads to denote when the crossing is clear. It was the custom of each road, on approaching the crossing, to stop at a distance of some 800 feet from the crossing at a post and whistle for a signal and wait until it received a signal from the operator denoting that the road was clear. About ten o’clock at night of the 2d of September, 1892, the plaintiff took his seat in the smoking car of the Ontario and Western railroad, and the train, when it reached the grade crossing at Central Square, stopped and called for a signal, and, upon receiving a signal denoting that the road was clear, proceeded to cross; and while the-smoking' car in which the plaintiff was seated was standing at the crossing an engine drawing a freight train of cars for the defendant approached without stopping or waiting for a signal from the operator and ran into and collided with the smoking car in which the plaintiff was a passenger, causing the injuries complained of, at about twelve o’clock at night. Extensive evidence on each side was given as to the nature and extent and character of the injuries claimed to-have been sustained by the plaintiff, and the appellant claims that the verdict is excessive and ought not to have exceeded in any event the sum of $500.

      O. D. PresooU, for the appellant.

      Timothy Owrtin, for the respondent.
   HaediN, P. J.:

Chapter 565 of the Laws of 1890 (Art. 2, § 36) provides that “ all trains and locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hundred or more than eight hundred feet from the crossing, and shall then cross only when the way is clear and upon a signal from a watchman stationed at the crossing.” The evidence discloses that the defendant did not comply with the statute, and by reason thereof the.accident occurred. Its train, at the time of collision, was going at the-rate of "about ten miles an hour. No negligence was shown on the part of the plaintiff, and it was properly assumed at the trial that he-was free from contributory negligence. (Chapman v. N. H. R. R. Co., 19 N. Y. 341; Masterson v. N. Y. C. & H. R. R. R. Co., 84 id. 256; Bagley v. Bowe, 105 id. 171.)

The car in which the plaintiff was seated was struck by the defendant’s engine, and a hole knocked in it, and, on the occasion off the collision, the car in which the plaintiff was seated was thrown off the track and apparently with sufficient force to overturn the freight house. The engine and smokestack and cowcatcher, after leaving the track, were severed from the tender of the engine, and evidence was given tending to show that the plaintiff was thrown, from the seat he was sitting upon, striking upon his left hip and sidey and that he was thrown across the car, which was tipped over on its» side, and on tlie morning of the accident the plaintiff found bruises on his left hip and side and several other places on his back, and he on that day procured liniment of Dr. Lindslay and applied it to the injured parts, and there is some evidence tending to show that the morning he arrived home he was lame, looked pale and haggard, and subsequently thereto was obliged to carry a cane for several months, and that prior to the injuries he was a strong healthy man, about twenty-five years of age; that he had theretofore never received any injuries or been ailing ; that his usual weight was from 185 to 190 pounds, and that his weight at the time of the trial (October 9, 1893) was 161 pounds. Upon the trial several physicians, in behalf of plaintiff, testified in effect that the plaintiff’s left limb is shorter than the right, and that there is a curvature of the spine in the lumbar regions; that the left side of the pelvis was let down or lowered and that the buttock on the left side was smaller than the right, and that the left limb near the hip was smaller and the flesh flabby, and measured less than the right, and that the right shoulder was lowered, and that a deformity exists which is quite observable. Numerous hypothetical questions were propounded to the physicians called on either side, and their opinions somewhat differ as to the physical condition of the plaintiff at the time of the trial and as to the causes which induced the conditions found upon an examination of the plaintiff, and as to whether the injuries will be of short duration, recovered from within a limited period, or whether they" will be permanent. One of the physicians testified that “ a degree of inflammation severe enough to produce permanent changes in the length of the limb would be attended by heat, pain, swelling and a much restricted function or ability to move the joint; a limitation of motion.” Dr. Sutton, one of the defendant’s physicians, testifies: “ I don’t think he (plaintiff) could have been injured in the accident sufficiently to have produced any shortening of the limb, which I say was the basis of the other trouble, without having been disabled for some considerable time ; ” and Dr. Flandrau testified : “ The obliquity of the spine and all that sort of thing results from the shortening of the limb; it is wholly compensatory,” and the physicians in their opinions seem to indicate that if the plaintiff had been sufficiently injured in the accident to have produced the shortening of his left leg as stated, that he would have been iminediately and continuously disabled, and the defendant gave evidence from several witnesses tending to establish a declaration made by the plaintiff after the accident that he had not received any injuries of any importance. The defendant produced considerable evidence tending to show the habits and practices of the plaintiff and his acts and doings subsequent to the injuries with a view of indicating that he had received no such injuries as were detailed by him and his witnesses. Among other circumstances disclosed by the evidence of the defendant it appears that the plaintiff attended a raising of a church bell at West Monroe and aided in placing the same in the belfry, and that the plaintiff volunteered to aid in properly placing it; that he climbed a ladder and went over the roof into the belfry, and that this occurred within a month of the accident, and that some two months and a half after the accident the plaintiff attended a barn raising; aided in elevating the timbers and went on top of the beams and drove in the pins to the frame, and that at about the same time he was at Danforth’s cider mill two hours shovelling apples into a hopper, feeding the mill that ground the apples, and that he aided also in filling the barrels with cider from the vat and in hauling poles in the fail, and that in the early spring, after the accident, he went spearing fish, wading in the water and holding a lantern, and that on one occasion he bought a wagon and tested it by lifting it; that he attended a picnic and engaged in selling fakir wares; ” that he did some harrowing and hoeing, and chopped wood for family use, and drove in a wagon around the country buying chickens, and that he drove on two occasions to Syracuse, some twenty miles from his residence, and that apparently he walked without impediment when he desired to, and also furnished evidence of various other acts performed by him, and also called witnesses describing his appearance and condition tending to indicate that he had received little or no injuries. One of the witnesses called testifies: “ The state that I found him in was caused from natural conditions; that they were congenital.” Some of the incidents to which allusion has been made were disputed and explained by the plaintiff as a witness upon the stand, and it is pointedly urged by the learned counsel for the appellant that the acts and circumstances disclosed, to which, in part, allusion has been made, “ are wholly inconsistent with the fact of a serious injury at the accident,” and that there is no testimony that warrants the amount of the verdict in this case; ” and the learned counsel calls our attention to Kummer v. Christopher & Tenth Street R. R. Co. (50 N. Y. St. Repr. 332), where it was held: “ It, is the right and duty of the General Term on appeal from an order denying a new trial to reverse the order when in its opinion, upon the evidence, the case of the respondent is a fabrication,” and to the case of Hamilton v. Third Ave. R. R. Co. (53 N. Y. 29), and Smith v. Ætna Life Ins. Co. (49 id. 211), which support the same doctrine and recognize and assert the power of the General Term to review the evidence and set aside a verdict not satisfactory to the judgment of the court. In considering the argument of the learned counsel for the appellant we must bear in mind that where a question of fact has been fairly submitted by the trial judge to the jury, and he has listened to the testimony and exercised his power of supervision over the verdict, his action in the premises is entitled to have some influence with an appellate court in reviewing a verdict which he has sanctioned in refusing an order to set it aside, and it is not the province of this court to interfere with a verdict under such circumstances, unless the amount is so great as to indicate that the jury was influenced by passion or prejudice. (Valentine v. Broadway & Seventh Ave. R. R. Co., 16 N. Y. St. Repr. 602; Quinn v. Long Island R. R. Co., 34 Hun, 334; Harding v. N. Y., L. E. & W. R. R. Co., 36 id. 73; Ehrgott v. Mayor, 96 N. Y. 279.)

In Dougherty v. R., W. & O. R. R. Co. (45 N. Y. St. Repr. 154; S. C. affd., 138 N. Y. 641) this court sustained a verdict of $4,750 as not being excessive where it appeared that the plaintiff “ was confined to bed eight weeks, suffered much pain, and his leg was permanently shortened and his nervous system affected.”

Hpon a review of the evidence found in the case now in hand it appears there is a conflict in respect to the many essential facts relating to the extent and character of the plaintiff’s injuries, and there is considerable evidence tending to indicate that there has been an exaggeration on the one side, and many facts offered on the other tending to belittle the extent of the injuries sustained by the plaintiff ; and, perhaps, if the question was an original one, and we were at liberty to follow that line of evidence which makes most favorable for the defendant, we might reach a'different conclusion from •the one* pronounced by the jury as to the extent of the injuries sustained by the plaintiff. However, we regard it as within the province of the jury to determine where the truth is when the evidence is conflicting, and that the verdict under the circumstances is not such an one as indicates partiality, prejudice or corruption, and, therefore, we reach the conclusion that within the authorities that .are applicable to such situations it is the duty of the court to sanction the verdict of the jury.

The judgment and order must be affirmed, witli costs.

MabtiN and Meewin, JJ., concurred.

Judgment and order affirmed, with costs.