text:
    Solomon Newdoll, as Administrator, etc., of Arthur Newdoll, Deceased, Appellant, v. Julia Young and Another, Respondents.

      Burden of proof in am, action to recover damages for the death of the plaintiff’s intestate.

    It is essential to the maintenance of an action, brought to recover damages resulting from the hilling of the plaintiff’s intestate hy reason of the alleged negligence of the defendants, that the plaintiff should establish the freedom of his intestate from negligence which contributed to the result, if the deceased was $wi juris, and if he was non sui juris, the same proof is requisite in relation to Ms parents; the burden also rests upon the plaintiff to prove the violation of some duty by the defendants which they owed to the deceased.
    Appeal by tbe plaintiff, Solomon Newdoll, as administrator, etc., of Arthur Newdoll, deceased, from a judgment of the Supreme Oourt in favor of the defendants, entered in the office of the clerk of the county of Kings on the 26th day of October, 1893, upon the dismissal of the complaint directed by the court after a trial at the Kings County Circuit before the court and a jury.

      Foley ds Powell, for the appellant.

      Horace Graves, for the respondent Young.

      William 8. Oogswell, for the respondent Thatcher.
   Dykman, J.:

This is an action for negligence. The charge in the complaint against the defendant Julia Young is that she carelessly maintained a sand pit or excavation upon her land, and permitted various persons to take and carry away sand therefrom, and allowed the sand to be taken from an overhanging bank without support, without fencing or guarding the same in any way.

The charge against the defendant Thatcher is that he carelessly excavated underneath a portion of the sand pit and left it opened and exposed.

It is then stated that the child of the plaintiff, under seven years-of age, entered the excavation to play in the sand, and was killed by the falling in of the overhanging bank.

The complaint was dismissed upon the trial, and the plaintiff has-appealed from the judgment of dismissal.

It was essential to the maintenance of the action that the plaintiff should establish the freedom of his intestate from negligence which contributed to the unfortunate result, if the deceased was sui juris. If he was non sui juris then the same proof was requisite in relation to his parents, and the burden also rested upon the plaintiff to-prove the violation of some duty by the defendants which they owed to the deceased.

The facts relevant to the first two questions are these: The deceased boy was over six years of age. He went voluntarily upon the premises without inducement or invitation from the defendants,. and entered the excavation to play in the sand. The excavation was deep and large, open and visible, and was overhung by a bank of earth. The dangerous character of the place was evident and apparent. The parents of the child both had knowledge of the existence of the dangerous opening in the earth, and had warned their child of the dangerous character of the place. Nevertheless, the child went directly into the pit and commenced to play in the sand, under the overhanging bank, and was killed as a consequence.

We think the facts make a plain case of contributory negligence against the child or the plaintiff, or both.

Respecting the negligence of the defendant Young, assuming the lot in question to belong to her, it is to be said that she had the legal right to use her land according to her wish and leave it as her interest or her convenience might dictate. The record discloses no circumstance which created any duty on her part to keep the premises in a safe condition. No duty was imposed upon her to protect the excavation. It is true, the public had been permitted to cross the lot, but it was a case of mere permission, and the excavation was old and well known to the deceased and the plaintiff.

As regards the defendant Thatcher, there is not the slightest ground for liability. He neither made the excavation nor controlled it in any way. All he did was to take sand from the pit, as many others had done before him.

Our conclusion is that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

Cullen, <L, concurred; Brown, P„ J\, not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    Frank T. Gilbert, Respondent, v. The Long Island Railroad Company, Appellant.

      Shots presumed to home been found by the jury acam'ding to the prevailing pa/rty’s evidence.

    It will be presumed, upon an appeal from a judgment entered upon tbe verdict of a jury, that tbe jury found tbe facts according to tbe testimony given on behalf of tbe prevailing party.

      Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of November, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order made at the Kings County Circuit on the 9th day of November, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial.

      W. C. Beecher, for the appellant.

      Charles J. Patterson, for the respondent.
   Dykman, J.:

This is an action for the recovery of damages for injuries inflicted by an engine upon the defendant’s road. The accident happened near Ozone Park on Long Island, where the track runs nearly north and south.

The plaintiff, with a man named Styler, was riding in a wagon drawn by one horse. Styler was driving and they were coming from the east towards the west, and as they approached the railroad there was a train passing north. He stopped sixty or seventy feet from the track and waited until that train moved away.

. There were two tracks at that place and the passing train was on the easterly track nearest to the plaintiff.

After the train passed the wagon of the plaintiff started to cross behind it and was struck by the engine of a south-bound train on the westerly track. The plaintiff was thrown from the wagon and received serious injuries. The cause was tried before a jury and the plaintiff recovered a verdict of $7,500.

Prom the judgment entered upon the verdict and from the order denying a motion for a new trial on the minutes of the court the defendant has appealed.

The usual questions in this class of cases were raised upon the trial, and testimony was given in relation to the question of negligence on the part of the defendant and the contributory negligence of the plaintiff, and it was a proper case for the jury.

The case was properly presented by the charge of the trial judge, which is free from error.

¥e must assume that the jury found the facts according to the testimony introduced on behalf of the plaintiff, and that was amply sufficient to sustain the verdict.

The judgment and order should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.

Judgment and order affirmed, with costs.


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    Merritt A. Jones, Respondent, v. The Mail and Express Publishing Company, Appellant. Daniel E. Christie, Respondent, v. The Mail and Express Publishing Company, Appellant.

      Buie for statutory construction — certificate of the payment in full of the capital stock of a corporation — must, under section 37 of chapter 611 of 1875, be recorded in the Secretary of State’s and county clerks offices.

    The fundamental rule for the interpretation of statutes is to ascertain the intention of the Legislature, and courts may interpret imperfect language in a statute so as to carry out what appears to he the general policy of the law.
    Under the provisions of section 37 of chapter 611 of the Laws of 1875, the directors of a corporation are required to record a certificate of the payment in full of the capital stock of such corporation in the office of the Secretary of State and in the office of the clerk of the county in which the principal place of business of the corporation is situated.
    Appeal by the defendant, The Mail and Express Publishing Company, from two interlocutory judgments of the Supreme Court in favor, respectively, of the respective plaintiffs in the above-entitled actions, entered in the office of the clerk of the county of Kings on the 2d day of March, 1891, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrers to. the complaints, and also from two orders entered in said clerk’s office on the 28th day of February, 1891, overruling said demurrers, and also from the decision of the court directing the entry of said interlocutory judgments, with notice of an intention to bring up for review upon such appeal said decision.

      WilUcm, Irwm, for the appellant.

      Henry L. Brcmt, for the respondents.
   Dykman, J.:

These are appeals by the defendant from the decision, order and interlocutory judgment overruling the demurrer of the defendant to the complaint of the plaintiff in each of the above-entitled actions upon the ground that they fail to state facts sufficient to constitute a cause of action.

The purpose of the suit is to enforce the statutory liability of the defendant as a stockholder of the New York Advertising Agency (Limited), for certain debts of that corporation, upon the ground of the failure of the directors of the defendant to file a certificate of the full payment of its capital stock, according to the requirements of section 37 of chapter 611 of the Laws of 1875.

The only question requiring attention is presented in this manner : The complaint alleges the failure of the defendant to file the certificate of the payment of its capital stock, as required by the statute, in the office of the clerk of the city and county of New York, where the principal business office of the defendant was situated, and the defendant contends that the statute contains no such requirement.

Section 37 of the act under which this suit is prosecuted contains these provisions: “ In limited liability companies all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the-amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company has been paid in, and a certificate thereof has been made and recorded as hereinafter prescribed. * * *

The directors of every such company, within thirty days after the payment of the last installment of the capital stock, shall make a certificate stating the amount of the capital so paid in, which certificate shall be signed and sworn to by the president and a majority of the directors, and they shall, within the said thirty days, record the same in the office of the Secretary of State and of the county in which the principal business office of such corporation is situated.”

It is now the contention of the defendant that this statute is satisfied by recording tbe certificate in tbe office of tlie Secretary of State only.

That question is to be settled by a construction of tbe statute according to a few familiar rules, and the fundamental rule for tbe interpretation of statutes is to ascertain tbe intention of tbe Legislature.

It is pver of paramount importance to ascertain tbe purposes of tbe enactment, because tbe courts may interpret imperfect language in a statute so as to carry out wbat appears to be the general policy of tbe law. (McKuskie v. Hendrickson, 128 N. Y. 555.)

“ Tbe legislative intent must govern even where such construction seems to run counter to tbe letter of tbe lawn” (Bixby v. Mayor, 61 Hun, 490.)

That construction must be adopted which will effectuate as far as possible tbe intent ’of tbe framers of tbe statute, and obviate the anticipated evils which were tbe occasion thereof. (Tonnele v. Hall, 4 N. Y. 140.)

It is, obvious from tbe reading of this statute that it does not perfectly express tbe intention of the lawmakers, which evidently was to require tbe recording of tbe certificate in two places, one of which was the office of tbe Secretary of State; the other was some office in the county in which tbe principal business office of the corporation was situated.

Tbe question is, wbat office in tbe county was intended ? There is usually but one office in tbe counties of this State where papers can be legally recorded and filed, and that is the office of tbe county clerk. But few counties in this State have a register’s office, and this law must have a general application.

As, therefore, we reach tbe conclusion that the statute requires the certificate to be recorded in some office in the county, and as there is no county office in all tbe counties of tbe State where the same can be recorded except tbe office of the county clerk, it seems to follow that the Legislature intend to provide for the recording of tbe certificate in tbe office of tbe county clerk.

It is a significant fact in aid of this interpretation that this statute in several places mentions the office of tbe Secretary of State and of the clerk of tbe county in which the principal business office of such corporation is situated” conjunctively, as the offices in which various papers are to be filed.

The other questions presented by the appeal were properly determined by the trial judge, and the decision, order and judgment should be affirmed, with costs and disbursements.

Cullen, J., concurred; Brown, P. J., dissenting.

Judgment affirmed, with costs, with leave to defendant to answer on payment of costs.


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    In the Matter of the Judicial Settlement of the Account of John F. James and Another, as Executors, etc., of Mary Ann Harvey, Deceased.

      Term “heir" defined — testatrix not presumed to make bequests which cannot be paid — whole estate presumed to be liable for the payment of legacies.

    In strictness of legal nomenclature the term “heir,” where the common law prevails, signifies one upon whom the law casts his ancestor’s estate immediately upon the ancestor’s death, but, in common parlance, the term “heir”is employed to denote the person who acquires or may receive property, either personal or real, by right of blood relationship.
    A deliberate intention of making bequests, which she knew could never be paid out of her estate, cannot be imputed to a testatrix.
    "Where the legatees named in a will are relatives of the testatrix the court will presume the existence of a desire on the part of the testatrix that all parts of her estate shall be made liable for the payment of such legacies.
    By the last will and testament of a testatrix a number of legacies were disposed of amounting in the aggregate to the sum of $4,000. The will then contained the following provision: “I have two thousand four hundred dollars in the Metropolitan Gas Light Company, Brooklyn; one thousand dollars to go to my niece, Lizzie Lawback, of Hew York, and one thousand dollars to her sister, Mary Ann Keams, of Chicago, Illinois. Four hundred dollars to their brother, John A. McDonald. If my husband survives me these legacies are to be paid after his death, ho having the interest during his life. My husband, James Harvey, shall also have the use of the house we now occupy in Lafayette avenue, Fort Hamilton, during his lifetime; if -not wishing to occupy it, can sell it if he finds it advantageous to do so, but it shall not be rented; if sold, the money to be put to interest, the principal to go to my heirs at his death.”
    Executors were nominated thereby; former wills were revoked, and the executors were authorized ‘ ‘ to sell and dispose of all or any part of my real estate if they shall deem it best for the interest of my estate.”
    The only personal property left by the testatrix was stock in the Metropolitan Gas Light Company of the par value of $3,400, and a -watch and chain. The only other property she had was the house and lot referred to in the will, which was sold by the executors for §4,000.

      Held, that the intention of the testatrix was that the legacies should be paid out of the proceeds of the sale of the house, and the residue, if any, should go to the heirs;
    That the legacies .were a charge upon the land, and the testatrix had given away by her will all the property she possessed.
    Appeal by Francis M. Potter, one of the executors, etc., of James ITarvey, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of the Kings County Surrogate’s Court on the 12th day of March, 1894, judicially settling and allowing the accounts of the executors of Mary Ann Harvey, deceased, and directing the distribution of the said estate.

      William G. Wilson, for Francis M. Potter, executor of James Harvey, deceased, appellant.

      B. 8. Morehouse, for executors of Mary Ann Harvey, deceased, respondents.
   Dykman, J.:

This is an appeal from the decree of the surrogate of Kings county directing the distribution of the estate of Mary Ann Harvey, deceased.

By the last will and testament of the testatrix she first gives to nine persons legacies amounting in the aggregate to the sum of $4,000. • ■

Then follow these provisions : “ I have two thousand four hundred dollars in the Metropolitan Gas Light Company, Brooklyn; one thousand dollars to go to my niece, Lizzie Lawback, of New York, and one thousand dollars to her sister, Mary Ann Kearns, of Chicago, Illinois. Four hundred dollars to their brother, John A. McDonald.

“ If my husband survives me these legacies are to be paid after his death, he having the interest during his life. My husband, James Harvey, shall also have the use of the house we now occupy in Lafayette avenue, Fort Hamilton, during his lifetime; if not wishing to occupy it, can sell it if he finds it advantageous to do so, but it shall not be rented; if sold, the money to be put to interest, the principal to go to my heirs at his death.

“I hereby nominate, constitute and appoint John F. James and James Campbell of the city of Brooklyn, executors of this my last will and testament, hereby revoking all former or other will or wills by me at any time heretofore made, and I do hereby authorize and empower iny said executors to sell and dispose of all or any part of my real estate, if they shall deem it best for the interest of my estate, and to execute, acknowledge and deliver all proper deed or deeds for conveyance of same.

“ In witness whereof, I have hereunto set my hand and seal this 29th day of December, one thousand eight hundred and eighty-eight.”

The only personal property which the testatrix left was the stock of the Metropolitan Gas Light Company, of the par value of $2,400, and the watch and chain. She had no other property except the house and lot, referred to in the will, and that has been sold by the executors for $4,000 under the power of sale contained in the will.

As, therefore, the gas stock and the watch and chain were specifically bequeathed, there remains no fund for the payment of the nine legacies except the proceeds of the sale of the real property, which is just sufficient for their payment.

¥e have, therefore, to determine whether the $4,000 of legacies is'to be paid out of the proceeds of the realty or remain unpaid, and that fund be distributed among the heirs at law of the deceased.

The portion of the will invoked in the contention for the distribution to the heirs is the clause which defers the payment of the legacies until the death of the husband, gives the interest thereon to him during his life, gives him the use of the house during his life, and closes thus: If not wishing to occupy it, can sell it if he finds it advantageous to do so, but it shall not be rented; if sold, the money to be put to interest, the principal to go to my heirs at his death.”

This last clause is quite inartificial and inconsistent with the previous and subsequent provisions of the will. For instance, it would seem to confer upon the husband a power to sell the house, when in a subsequent clause the will confers a full and valid power of sale of the real estate upon the executors.

So in respect to the statement that the principal arising from the house shall go to the heirs of the testatrix after the death of her husband, if that clause is to be construed literally and technicallyj then the general legacies will all remain unpaid.

As this is the only place and time that the term “ heirs ” is used, it will be well to ascertain the sense in which it is employed.

In strictness of legal nomenclature the term “ heir ” in this country and in England, where the common law prevails, signifies one upon whom the law casts his ancestor’s estate immediately upon the ancestor’s death. Under the civil law, however, there were two sorts of heirs, called, respectively, testamentary heirs and heirs at law. (Domat’s Civil Law, p. 2, book 1, tit. 1, § 1, art. 2.)

In common parlance and ordinary phrase the term “ heir ” is often employed to denote a person who acquires or may .receive property, either personal or real, by right of blood relation.

What did the testatrix mean by the use of the term here ? Did she intend to designate her heirs at law as the recipients of the fund arising from the sale of her house, to the exclusion of her relatives, to whom she had given legacies, or did she use that word to emphasize her design that the latter class should not take their legacies until after the death of her husband, and then the principal should go to them %

If we assume the former, then we must infer that she deliberately gave nine different legacies to her relatives, and then subsequently gave to other persons the only property from which such legacies could be paid.

Such an inference would be contrary not only to natural reason and good sense, but also to all the authorities on the subject. We cannot impute to this testatrix a deliberate intention of making bequests which she knew could never be paid. (McCorn v. McCorn, 100 N. Y. 511.)

If, however, we determine the intention of the testatrix to have been that the legacies should be paid, and only the residue of the proceeds of the sale of the house, if any, should go to the heirs, then all .is harmonious. Then the legacies are a charge upon the land, and the testatrix has given away by her will all the property she possessed.

The following cases are authorities in favor of such conclusions: Hiscock v. Fulton (43 N. Y. St. Repr. 738); McCorn v. McCorn (100 N. Y. 511); Am. Bapt. Home Mission Society v. Foot (52 Hun, 310); Scott v. Stebbins (91 N. Y. 605); Hogan v. Kavanaugh (138 id. 417).

It is claimed by the respondents, however, that it was necessary to show affirmatively by positive proof that the deficiency of personal property existed at the time of the execution of the will.

The will was made about a year before it was proven. The testatrix specified the stock which she had, her watch and chain and her house, and we think it a fair presumption that she knew what she had and specified all her property.

The presumption is in favor of a continuance of her condition as to property. The scheme of this will is obvious.

The testatrix was a woman with a small estate; she knew precisely what property she had, for she described it with accuracy in her will. She gave nine legacies to nine of her relatives, which amounted to §4,000. The legacies were doubtless graded by design so as to amount to that sum.

She then gave away all the personal property she had by specific legacies ; she knew, therefore, that the general legacies could not be paid from her personal property. Then, in a clause of the will in Avhich she gave her husband the interest on the legacies during his life, and the right to elect avIiether he Avoirid use the house for his residence, or consent to a sale of the same and take the use of the proceeds, she says the principal is to go to her heirs at his death.

Noav, the respondents claim that the word lt heirs,” as here used, changes the scheme of the will in relation to the general legacies, and gives the fund of §4,000 to the heirs at lawr of the testatrix, and leaves the legacies unpaid.

If that conclusion was the necessary result of the use of the word “ heir,” Ave might be obliged to adopt it. But it is not; we have already seen that the word might have been used to designate the collateral relatives of the testatrix to whom she had bequeathed the legacies. That vieAV is much more natural than the conclusion that she intended to give to others the only property she had undisposed of from which the legacies could be paid.

After all, we do not attach much importance to the use of the term heirs, as it is here employed. It may as well mean those who AArere interested in the estate by reason of the provisions of the will. (Hoyt v. Hoyt, 85 N. Y. 151.)

Where, as in this case, the legatees are relatives of the testatrix, the courts presume a desire that all parts of the estate shall be made liable for the payment of such legacies.

In this case no mention is made of any debts of the testatrix, and, ■therefore, the sole purpose of the power of sale must have been to enable the executors to pay the legacies which were payable after the death of the husband.

Inasmuch, therefore, as all the legatees in this case were blood relatives of the testatrix, whose legacies she must have intended to have paid; as she knew she had already disposed of all of her personal property, and the legacies could only be paid from the proceeds of the real estate; and as the power of sale was bestowed to enable the executors to pay the legacies, which were to remain unpaid until the death of her husband, we think the legacies were charged upon the real estate notwithstanding the absence of an expressed intention so to charge them. Hoyt v. Hoyt (supra) and Kalbfleisch v. Kalbfleisch (67 N. Y. 362) are authorities for the foregoing conclusions.

The decree should be reversed, with costs, payable from the fund, and the proceeds of the real property applied to the payment of the general legacies.

Brown, P. J., and Cullicn, J., concurred.

. Decree reversed so far as it directs the proceeds of the real estate to be paid to the heirs at law of the testatrix, and such proceeds are ordered to be applied to the payment of legacies, with costs to both parties payable out of the fund.


author: Dykman, J::

text:
    The Jewelers’ League of the City of New York, Plaintiff, v. Ellen B. De Forest, Appellant; Anna B. De Forest, Respondent.

      Duress — contracts, when set aside — what is, and what is not, duress.

    The nullification of instruments obtained by fraud, duress or undue influence is a well-recognized head of equity jurisprudence; contracts when procured by fear or undue influence will also be set aside by the civil law. -
    When a person does an act or makes a contract while he is under the influence of extreme terror or apprehension short of duress, relief will be administered, for in such cases the person doiDg the act or making- the contract has no free will but stands in vinaulis.

    It is essential, in order to disaffirm a contract as having been made under duress, to show that the person making the same was either placed under apprehension of injury or subjected to intimidation.
    At the solicitation of the widow of a decedent, his mother executed to her at St. Louis an assignment of her interest in a life insurance policy, for §5,000, upon the life of the deceased. After the execution thereof the mother and widow and a friend of the widow started for the east'with the body of the deceased. Upon reaching Albany the widow and her friend desired the mother to acknowledge the execution of the assignment, and upon her hesitating to do so, they threatened to take the body back to St. Louis for interment. Thereupon the mother made the acknowledgment. Two days afterward the mother executed a power of attorney to the friend of the widow, authorizing the pursuit of the proper measures for the collection of the money, and on the following day (December thirtieth) an agreement was made between the parties that the mother should receive $500 of the insurance fund and the widow the rest. The mother then executed an instrument in writing by which, in consideration of that sum, she agreed to facilitate the widow in the collection of the money.

      Held, that the deceased’s mother was not at any lime subjected to such influence as would overcome her free agency ; she was never terrorized in any way and never was intimidated by the apprehension of any serious evil, neither was there any constraint over her person nor was she placed in terror of any personal injury ;
    That the agreement of December thirtieth was a ratification of the former assignment as thereby modified.
    Appeal by the defendant Ellen B. De Forest from that part of a judgment of the Supreme Court in favor of the defendant Anna B. De Forest, entered in the office of the clerk of the county of Kings on the 14th day of March, 1894, upon the decision of the court gendered after a trial at the Kings County Special Term which directs the payment of certain moneys to Anna B. De Forest.

      Abel Groo7c, for the plaintiff.

      Rochfort c& Stayton, for defendant, appellant.

      Charles N. Juclson, for defendant, respondent.
   Dykman, J::

This is an action of interpleader brought by a mutual benefit association to determine conflicting claims to the sum of $5,000, the amount clue upon a certificate of membership of one Charles S. De Forest, who died, in December, 1892.

In his application for membership ho designated his mother, Ellen B. De Forest, as the beneficiary to whom the money was to be paid. Subsequently he so far modified that designation as to provide that his wife, Anna B. De Forest, should receive the money if his mother predeceased him.

The mother and wife are both defendants in this action, and each claims the money, the mother as the designated beneficiary, and the wife as the assignee of the fund under an assignment made by the mother. The mother now repudiates the transfer and alleges that it was obtained from her by duress and undue influence.

The assignment of the money was executed at St. Louis, December 25, 1892, and down to that time only solicitation had been employed for its procurement. After the execution the parties started for the east with the body of the deceased, and upon reaching Albany the wife and a friend who accompanied her desired the mother to acknowledge the execution of the assignment. Upon her hesitating to do sO the wife threatened to take the body back to St. Louis for interment if she did not do so, and thereupon the mother made the acknowledgment. That was December 27, 1892.

The party then proceeded to Birmingham, in Connecticut, where the body was buried December 28, 1892, as we gather the dates.

The next day the mother executed a power of attorney to the friend of the wife, authorizing the pursuit of the proper measures for the collection of the money. On the 30th day of December, 1892, an agreement was made between them that the mother should receive $500 of the fund and the wife the rest, and the mother then executed an instrument in writing by which, in consideration of that sum, she agreed to facilitate the wife in the collection of the money.

The nullification of instruments obtained by fraud, duress or undue influence is a well-recognized head of equity jurisprudence, and the civil law also sets aside contracts procured by fear or undue influence. (Domat Civil Law, book 1, tit. 18, § 2, arts. 1-10.)

Judge Story says relief is administered in such cases to a party “ where he does an act or makes a contract when he is under duress or the influence of extreme terror, or of threats or apprehensions short of duress. For in cases of this sort he has no free will, but stands in mneulis.” (1 Story Eq. Juris. [10th ed.] § 239.)

We do not find that the mother in this case was at any time subjected to such influence as would overcome her free agency. She was never terrorized in any way, and she never was intimidated by the apprehension of any serious evil. There was no constraint over her person, and she was not placed in dread of any personal injury.

At St. Louis, where the first paper was signed, there was no threat of any kind made to her. At Albany the only threat was to take the body of the dead son back to St. Louis. If that operated upon her affections it could not have operated upon her fears or constrained her will. She was neither placed under apprehension of injury nor subjected to intimidation, and that seems to be essential within all the authorities.

Independent of the foregoing, the agreement of December 30, 1892, seems to have been entirely consensual and voluntary, and must be deemed a ratification of the former assignment with the modification Avhich secured $500 of the fund for the mother.

The leading case on the subject in this State is Eadie v. Slimman (26 N. Y. 9), and the latest case is Adams v. The Irving National Bank (116 id. 606).

Both of those cases manifest the severity with which courts of equity scrutinize transactions in which covenants or written instruments have been obtained by threats or undue influence, but the facts in this case do not bring it within the scope of the decision in either of the cases.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    In the Matter of the Application of Jonas Litt, Respondent, for a Peremptory Writ of Mandamus, against Z. Taylor Emery, M. D., as Commissioner of the Department of Health of the City of Brooklyn, Appellant.

      Commissioner of the department of health of the city of Brooklyn — the time within which he map summarily remove an employee cannot he extended, hy agreement.

    By no arrangement or agreement between a commissioner of tbe department of health of the city of Brooklyn and his subordinates can the powers of the commissioner be increased, nor can the time be extended within which he may remove any subordinate summarily and without cause; the limit of time within which he may remove an employee is prescribed by statute not only for the benefit of the employee but also to preserve the efficiency of the service in such, department.
    Appeal by the defendant, Z. Taylor Emery, M. D., as commissioner of the department of health of the city of Brooklyn, from •an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of May, 1894, granting the petitioner’s prayer that a writ of mandamus issue to the said Emery as commissioner of the ■department of health of the city of Brooklyn, requiring him to restore tlie petitioner to the position of meat inspector in the department of health of the city of Brooklyn.
    The opinion of the justice upon the granting of a peremptory writ of mandamus was as follows:
    Cullen, J.:
    “ The statute prescribes the period after his appointment, during which the head of a city department may remove a subordinate summarily and without cause. This ■ limitation is prescribed not merely for the benefit of the employee but for the efficiency of the service in the city departments. It will not do either for the commissioner or for the courts to say that the period is too brief. It is sufficient to say that it is the time fixed by the statute. Therefore, by no arrangement or agreement between the commissioner and his subordinates, can the time be extended or the powers of the commissioner be increased. The same principle has been decided in the matter of salaries. In the case of People ex rel. Satterlee v. The Mayor (75 N. Y. 38) the relator was appointed a police surgeon by a resolution fixing fiis compensation at $1,500 a year, which lie-accepted., The statute fixed the salary at $2,250. Held, that the relator was entitled to recover the difference. It was said by the Court of Appeals : ‘ The law does not recognize the principle that a board of officers can reduce the amount fixed by law for a salaried officer, or that the official can make a contract to that effect. The doctrine of waiver has no application to any such case.’ The same rule was held to apply to a mere employee of the State, a fireman at work in the capitol. (Kehn v. The State, 93 N. Y. 291.) Surely, if a contract cannot modify the salary of a public employee in contravention of the statute, much less can it affect his tenure of employment.
    “ It may be claimed that though the employee could revoke his resignation, it was the subject of acceptance till revoked. The frankness of the respondent in his affidavit disposes of such claim. The paper was in no sense a resignation except in form. It was given by the relator, not for the purpose of withdrawing from his employment, but as condition of securing its continuance. The respondent makes affidavit, ‘that said Jonas Litt (the relator) well knew if he did not give this deponent said letter of resignation, deponent had the power to and would dismiss him at once from said department.’ This frankness of statement shows that the respondent acted in entire good faith in his belief as to his powers, but, nevertheless, the action is wholly illegal. Motion granted, with $10 costs.”

      Alexander II. Van Oott, -for the appellant.

      Joseph G. Gray, for the petitioner, respondent.
   Dykman, J.:

This is an appeal from an order directing the issuance of a peremptory writ of mandamus requiring the commissioner of the department of health of the city of Brooklyn to restore Jonas Litt to the position of meat inspector in that department.

Our conclusion is that the order should be affirmed on the opinion of the judge who made it.

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

Order affirmed on opinion of Special Terra.


author: Brown, P. J. :

text:
    Joseph Weil, Respondent, v. Aaron Levy, Appellant.

      Interlocutory judgment directing an accounting — is appealable under Oode of Civil Procedure, § 1349 — when the plaintiff is entitled to it.

    An interlocutory judgment, in an action brought to compel an accounting by the defendant as a mortgage trustee, which adjudges that the plaintiff is entitled to an accounting, and refers the matter to a specified referee to hear and determine it, is appealable under the provisions of section 1349 of the Code of Civil Procedure.
    An assignment of a chattel mortgage was executed and delivered, for the benefit of the holders of two promissory notes secured thereby, to a person who took possession of the mortgaged property.

      IIeld, that the holders of such notes were entitled, in an action brought to compel an accounting, to a judgment directing such assignee to account, and appointing a referee to hear and determine the matter.
    Appeal by the defendant, Aaron Levy, from an interlocutory, judgment of the Supreme Court in favor of the plaintiff, entered in: the office of the clerk of the county of Kings on the 15th day of January, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term directing that the plaintiff have judgment for an accounting by the defendant for certain chattels, and referring the matter to a referee to hear and determine.
    Upon August 1, 1892, John J. Goodwin made two promissory; notes in which Joseph C. Coggeshall was named as payee. As col-, lateral security for the payment of the notes, he delivered to Cogge-, shall a chattel mortgage executed by him. Before the maturity of the notes Coggeshall transferred one of them to Aaron Levy, and thereafter he transferred the other to Joseph Weil. Thereafter, and before the maturity of such notes, by an instrument in writing, Cogr, geshall executed and delivered to Aaron Levy an assignment of such chattel mortgage, of which the following is a copy :
    “Know all men by these presents, that I; Joseph C. Coggeshall,,, of the city, county and State of New York, party of the first part, in consideration of the sum of valuable consideration in dollars lawful money of the United States to me in hand paid by Aaron Levy,., of the city of Brooklyn, county of Kings and State of New York, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, haye granted, bargained, sold, assigned, transferred and set over and by these presents do grant, bargain, sell, assign, transfer and set over unto the said party of the second part, a certain chattel mortgage bearing date the first day of August, in the year one thousand eight hundred and ninety-two, made by John D. Goodwin of the said city of Brooklyn to me to secure the payment of the sum of one thousand dollars and filed in the office of the register of Kings county on August 4th, 1892, at 9.40 o’clock a. m. and the money due and to grow due thereon with interest, to have and to hold the same unto the said party of the second part, his executors, administrators, and assigns forever, subject only to the proviso in the said chattel mortgage mentioned and I do hereby make, constitute and appoint the said party of the second part my true and lawful attorney irrevocable in my name or otherwise, but at his proper costs and charges to have, use and take lawful ways and means for the recovery of the said money and interest and in case of payment to discharge the same as fully as I might or could if these presents were not made.
    “ In witness whereof, I have hereunto set my hand and seal the 13th day of January, in the year 1893.
    “ JOSEPI-I C. COGGESHALL. [l. s.]
    “ Sealed and delivered )
    in the presence of )

      “ Isaac Lublin.”
    Thereafter this action was commenced by Weil against Levy, the complaint in which alleged the conversion by Levy of the property covered by such chattel mortgage for his own use, and demanded judgment that he be required to account to the plaintiff for the same.

      M. L. Towns, for the appellant.

      J. Stewart Toss, for the respondent.
   Brown, P. J. :

The interlocutory judgment in this action is appealable. (Code Oiv. Proc. § 1349.) Upon the evidence in the case the defendant was a trustee of the chattel mortgage for the payment of the two notes held by himself and the plaintiff. The complaint alleged that it was given as collateral security for the payment of said two notes,” and that allegation was admitted by the answer. Ooggeshall, the payee of the notes and the mortgagee, testified that the agreement at the time of the assignment was that defendant was to pay his own note and turn the balance over to him for the payment of plaintiff’s note, and this was substantially corroborated by Mr. Lublin, who drew the assignment. After defendant took possession of the mortgaged property, the evidence tended to show bad faith in relation to the sale thereof. But whether there' was bad faith or whether there was a bona fide sale, are questions which have not been determined.

The court, in its decision, did not find that there had not been a sale, but it refused, on defendant’s request, to find that there had been one, and this question is left to be determined by the referee.

It did decide, however, that the assignment of the mortgage was executed and delivered to defendant for the benefit of the holder of said two notes secured thereby, and that, defendant had taken possession of the mortgaged property.

This entitled plaintiff to an accounting, and that is all that the interlocutory judgment has determined.

The value of the mortgaged property, and whether there was a bona fide sale thereof, and what sum defendant received or is to receive therefor, are questions to be determined by the referee appointed by the judgment.

The appellant claims that as his note matured before that held by plaintiff it carried with it a fro tanto and not a fro rata interest in the security. This proposition is not now before us. The trial court did not decide to the contrary, and no exception presents the question for review. It will be determined by the final judgment that will be entered upon the referee’s report, and until that is rendered, discussion of the question is premature.

The judgment is affirmed, with costs.

All concurred.

Judgment affirmed, with costs.


author: Brown, P. J.:

text:
    The People of the State of New York ex rel. J. Esler Eckerson and Others v. The Board of Trustees of the Village of Haverstraw and Others.

      Constitutional jury — opening of highways — waiver by a lam-downer of constitutional provisions — any assessment, if allowing of review, is sufficient — chapter 291 of the Latos of 1870, as amended by chapter 694 of the Laws of 1893.
    The term “jury,” as used in the Constitution of the State of New York of 1846, is descriptive of a body of jurymen drawn in the ordinary mode of drawing-juries. The jurors must, as provided by the Code of Civil Procedure, be male citizens and residents of the county in which they are qualified to serve, of a designated age, and possessed of certain property qualifications, not infirm or decrepit, of fair character, approved integrity, sound judgment and well informed.
    A jury selected under the provisions of chapter 291 of the Laws of 1870, as amended by chapter 694 of the Laws of 1893, in proceedings to open a highway, does not meet the requirements of the Constitution, and in the absence of any other provision for the assessment of damages except that contained in the amendment of 1893, the award made by them would not be binding upon the property owners interested in the proceedings.
    An assessment may be made in the first instance in any manner directed by the Legislature, provided that an unqualified and unfettered right of appeal be given to the landowner under which he is entitled to have his damages assessed in the manner provided by the Constitution.
    In condemnation proceedings, it is always permissible for a landowner to waive a constitutional provision in his favor, and under the provisions of chapter 291 of the Laws of 1870, as amended by chapter 694 of the Laws of 1893, he may accept the award of the jury or may take his appeal and have his damages assessed by a lawful tribunal.
    The provision of such statute, which requires a bond and imposes costs on the landowner in case he fails to increase the jury’s award, relates to the procedure only and does not violate any constitutional right, nor does the fact that application is to be made to the county judge, instead of to the County Court, deprive the landowner of any constitutional right, as he may always make his application at a term of the County Court.
    The provision that the trustees of a village may take possession of land, condemned for the purpose of opening a highway, upon the filing of the report of commissioners of appraisal, and make payment therefor to the landowner within a year, is entirely legal.
    Certiorari issued out of the Supreme Court and attested on the 24th day of February, 1894, directed to the board of trustees of the village of Haverstraw and to John ~W. Furman, village clerk, commanding them to certify and return to the said court at the office of the clerk of the county of Rockland the award of the jury in relation to the assessment of the damages of the relators and the proceedings of the said board of trustees in relation to certain proceedings brought to lay out a highway.

      Calvin Frost, for the relators.

      William MoCauley, Jr., and Alonzo Wheeler, fox the respondents.
   Brown, P. J.:

The relators attack the award of damages made to them by the jury in the proceeding to open the highway, on the ground that the provision of section 2 of title 7 of the act for the incorporation of villages (Chap. 291, Laws of 1870), as amended by chapter 694, Laws of 1893, is in violation of that provision of the Constitution which directs that the compensation for jnivate projierty taken for public use, shall, when it is not to be made by the State, be ascertained by a jury, or by not less than three commissioners, appointed by a court of record.

Section 2 of title 7 in the original act provided that in case damages were not determined by agreement between the trustees and the landowner “the board shall * * * meet and cause a jury

of six freeholders to be summoned to determine and award said damages.”

The amendment of 1893 added to the original section the following : “ The said jury shall be selected as follows : The said board of trustees shall prepare a list of the names of twelve freeholders of the village, in no wise of kin to the applicants, owners or occupants, or any or. either of them, and not interested in the lands proposed to be taken.” They shall prepare a copy of said list with a notice of meeting to be held, etc., etc. “At the time and place mentioned in - said notice the board of trustees shall meet, and the owners of the land may strike from the said list not more than six names, and of the number which remain, the six names standing first upon the list shall be the jury.”

The requirement that compensation for property taken for public use must be ascertained by a jury or by commissioners, appears for the first time in the Constitution of 1846. Under the second Constitution of the State the mode of ascertaining damages belonged to the Legislature, and it could select the tribunal and provide the manner of its formation. (Livingston v. The Mayor, 8 Wend. 85.)

In construing the term “jury,” as used in the Constitution of 1846, the Court of Appeals, in Cruger v. H. R. R. R. Co. (12 N. Y. 190), held that it was “ descriptive of a body of jurymen drawn in the ordinary mode of drawing juries,” and this conclusion was based upon the meaning which the term had acquired in the law from long legislative usage, and which the court presumed w^s known to the convention and adopted by it.

The qualifications of jurors are provided by the Code of Civil Procedure, and they must be male citizens, and residents of the county in which they are qualified to serve, of a designated age, and possessed of certain property qualifications; not infirm or decrepit; of fair character, approved integrity, sound judgment, and well informed.

The jurors provided for in the act under consideration are only required to be freeholders of the village, and,- excepting that they shall not be next of kin to the applicants for the road or to the landowner, and not interested in the land to be taken, no other limitation is put upon the trustees in their selection.

They may be of any age or of either sex, and possessed of none of the qualifications named in the Code.

Moreover, they are to be selected by the trustees, who, as the damages were assessable on the whole village property, are parties to the proceeding to open the street, representing interests adverse to the landowner. A jury selected in such a manner, does not, we think, meet the requirements of the Constitution. I have examined all the laws cited by Judge Johnson in his opinion in Gruger's case, and many others enacted before and immediately after the adoption of the Constitution of 1846, and I have been unable to find one that did not provide that the jury should be drawn from the jurors selected in the towns for duty in the courts.. Generally they are to be drawn from the list of grand jurors, but occasionally from the petit jurors. Such was the provision of the Highway Law of 1847 for the re-assessment of damages, and it has been continued in all subsequent amendments down to the recent revision of the statute. The laws invariably required the jury to be drawn by or in the presence of a public officer, generally the county judge, but occasionally by the vice-chancellor, or a justice of the peace, and I think this will be found to be the first instance in which they were to be drawn by a party to the proceeding.

If the Tillage Law made no other provision for the assessment of damages except that contained in the amendment of 1893, we should hold that the mode prescribed was not in conformity to the Constitution, and that the proceedings had in this case were invalid. A jury, within the meaning of the Constitution, must be drawn or selected from the jurors, designated in the manner required by the Code. The Constitution has not limited its number, or the particular manner in which it shall be drawn, but it has designated the class of persons from whom alone it mnst be selected.

But the Tillage Law has not made the award of the jury final, but by section i of title 7 it has given to the landowner the right of appeal to the county judge of the county in which the village is situated. (Chap. 59, Laws 1878, § 8.)

Upon such appeal there is to bo a hearing upon notice to all parties interested, and the judge is required to appoint three commissioners to determine and award the damages to the person so appealing, and such commissioners have power to compel the attendance and the examination of witnesses, to view the. property, hear the proofs of parties, and make such award as they shall deem just.

The appeal stays all proceedings, and the trustees may not enter upon the land until the award of the commissioners becomes final and conclusive as provided in the statute.

This mode of ascertaining the compensation to be made to the landowner is certainly in compliance with the Constitution of the State, and removes the objection to the statute which would exist if no appeal were authorized.

It lias been repeatedly decided that an assessment may be made in the first instance in any manner directed by the Legislature, provided that an unqualified and unfettered right of appeal be given to the landowner, under which he is entitled to have his damages assessed, in the manner provided by the Constitution. (Lamb v. Lane, 4 Ohio St. 167; Des Moines v. Laymam, 21 Iowa, 158; Beers v. Beers, 4 Conn. 535; Dillon Mun. Corp. [5th ed.] § 618, and notes; Tiecleman Mun. Oorp. § 245, and notes.)

In Massachusetts the Supreme Court decided that a statute authorizing a magistrate to try a defendant without a jury, and pass sentence in a criminal case, ivas not unconstitutional, as impairing the right of trial by jury, when the defendant was given an unqualified right of appeal, and a trial by jury in the appellate court, subject only to the requirements of giving bail for his appearance. (Jones v. Robbins, 74 Mass. [8 Gray] 329; see, also, Dillon Mun. Corp. § 439; Cooley Const. Dim. [5th ed.] 507, and cases cited in notes.)

While a different view was expressed by Judge Buatciiford in Dana’s Case (7 Benedict, 1), the Supremo Court of the United States, in Callan v. Wilson (127 U. S. 540), referred to Jones v. Robbins without disapproval.

But, whatever the rule may be in criminal cases, I have no doubt of its correctness in proceedings fen1 taking private property. It is always permissible in such cases for the landowner to waive the constitutional provision in his favor.

He may accept the award of the jury if he chooses, or he may take his appeal and have his damages assessed by a lawful tribunal. The provision which requires a bond and imposes costs on the landowner, in case he fails to increase the jury’s award, relates to the procedure only, and does not violate any constitutional right. Similar provisions in relation to costs have always existed in the Ceneral Railroad Law.

Neither does the fact that application is to be made to the county judge instead of to the County Court, deprive the landowner of any constitutional right, as he may always make his application at a term of the County Court.

The provision that the trustees may take possession of the land upon the filing of the commissioners’ report, and make payment to the landowner within a year, is entirely legal. (People v. Hayden, 6 Hill, 359; Rexford v. Knight, 11 N. Y. 308.)

The damages awarded are, by section 5 of title 7, made assessable upon and payable from the whole taxable property of the village, and thus certain and adequate provision is made by which the landowner can coerce payment .of his award, and this provision fulfills the requirements of the Constitution. (Dillon Mun. Corp. § 615.)

The learned counsel for the relators lias not referred in lfis argument to the provisions of the statute wliicli I have quoted, giving the right of appeal to the landowner, and we have not had the benefit of his views as to their effect upon the question of the constitutionality of the general scheme provided by the statute for the assessment of damages.

But we have no doubt that the right of appeal removes all objection that would exist to the assessment by a jury selected under section 2, as amended by the act of 1893, provided that section stood alone. The award of the jury is made conclusive upon the landowner in twenty days after service upon him of a copy of such award, provided no appeal is taken.

We are of the opinion that the relators have not been deprived of any of their constitutional rights, and the award must be affirmed, with costs.

Cullen, J., concurred; Dykman, J., dissented.

Award affirmed, with costs.


author: Cullen, J.:

text:
    Frank A. Bennett, as Receiver, etc., of Henry C. Quinn, Respondent, v. Edward G. Wolfolk and Another, Appellants.

      Injuries to real estate■ — a cause of action therefor is assignable — the amount of damage to be determined by the jury, not by witnesses.

    All causes of action for injuries to rights in property survive to personal representatives, and are, therefore, 'assignable.
    It is not proper for witnesses to testify, in an action brought to recover damages for injury to real estate, what would be a fair compensation for the inconvenience resulting from having posts and cables in the dooryard and stones obstructing the sidewalk in front thereof. That question should be decided by the jury.
    Appeal by the defendants, Edward G. Wolfolk and another, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of April, 1894, upon the verdict of a jury, and also from an order made on the 10th day of February, 1894, and entered in said clerk’s office, denying the defendants’ motion for a new trial.

      Wm. J. Marshall, for the appellants.

      Franh A. Bennett, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the County Court, entered upon the verdict of a jury. The action is for trespass on the lands of one Quinn, by digging holes in his dooryard, anchoring there cables for defendants’ derricks, and piling stones on the sidewalk. In supplementary proceedings against Quinn the plaintiff was appointed receiver.

But one exception was taken on the trial, that to the refusal to dismiss the complaint. The motion was based on the ground that the cause of action was not assignable, and did not pass to the receiver. This is plainly untenable. All causes of action for injuries to. property rights survive to personal representatives, and are, therefore, assignable. (Code, § 1910 ; 2 B. S. 447, 448; Byxbie v. Wood, 24 N. Y. 607.)

It is now objected that there was no evidence to show the amount of the damage. These damages were not justly the subject of expert testimony. It was not for the witnesses, but for the jury, to say what would be a fair compensation for the inconvenience of posts and cables in the dooryard and stones obstructing the sidewalk.

The judgment and order denying new trial should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


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    The D. G. Burton Company, Respondent, v. Stuart W. Cowan and Others, Appellants; Edward W. Heinsohn and Others, Respondents.

      Decision of a referee on the facts — not interfered with by the appellate court — an action is not pending until process is served— a separate action by each lienor may be commenced under tlj.e Mechanics' JAen Daw — ■agreement between an owner and a contractor as to damages sustained by delay — when not conclusive.

    An appellate court will not set aside the decision of a referee on a question of fact, rendered upon conflicting evidence, as against the weight of evidence [even though the appellate court might have reached a different conclusion itself], unless the preponderance of evidence in favor of the party against whom the judgment was rendered is so great that it can bo said, with reasonable certainty, that the findings of the referee are erroneous.
    An action brought to foreclose a mechanic’s lien is not pending as against a person named therein as a defendant until he is served with process.
    Under the Mechanics’ Lien Law (Chap. 343 of 1885) each lienor may commence his separate action for the foreclosure of his lien, subject to the right of any party to move to consolidate the actions as provided for by that statute.
    Although i lie owner of real estate and the contractor erecting a building thereon, may have agreed as to the amount of damages sustained by the former from an alleged delay in the completion of the work, such agreement is not conclusive on the subject where the consideration therefor was a stipulation by the owner relative to deposits of money and contests of liens, which he failed to comply with; such default on the part of the owner avoids the agreement.
    Appeal by tire defendants, Stewart W. Cowan and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the comity of Westchester on the 3d day of November, 1893, upon the report of a referee directing the foreclosure and sale of certain real estate under a mechanic’s lien.
    . Stewart W. Cowan, for appellants Cowan, Beach & Field.

      Walter J2. Beach, for appellants Rich & Storms.

      Milo J. White, for respondent I). G-. Burton Co.

      Joseph S. Wood, for respondents Heinsohn & Maxwell.

      Isaac N. Mills, for respondents Benson and others.

      Da/oid 0. WilTAmns, for respondents Duprie and others.
   Cullen, J.:

Tliis is an appeal from a judgment in favor of the plaintiff and certain of the defendants against the other defendants, entered on the report of a referee.

The action is brought by the plaintiff, which furnished material for the erection of certain buildings, against the owners of the premises and certain other lienors, to foreclose a mechanic’s lien. The contractors abandoned their contract before completion, and the buildings were finished by the owners. After deducting the cost of completion from the contract price there concededly remained a large sum applicable to the liens, but there was a bitter dispute as to what that sum was, although the amount of the difference between the parties was comparatively small. The question of the cost to the owners of completing the contract, and the allowance to be made on one side for defects and delay, and on the other side for extra work, was solely one of fact. We are not justified in interfering with the decision of the referee in this respect, even though we might have reached a different conclusion ourselves, unless the preponderance of evidence in favor of the defendants against whom judgment ^vas rendered was so great that it can be said with reasonable certainty that the findings of the referee are erroneous. (Burnard v. Gantz, 140 N. Y. 249.) A review of the evidence shows that there was a sharp conflict of testimony, but no such clear preponderance as to bring the case within the rule cited.

One of the defendants, a lienor prior to the commencement of this action, began an action in the County Court to foreclose his lien, filing complaint and lis pendens, and serving the summons on the defendant owners. He did not serve the plaintiff in this action, although the plaintiff here was there named as a party defendant. On these facts the defendant owners set up the plea of another action pending. This was overruled by the referee, on the ground that the claim of this plaintiff exceeded in amount the jurisdiction of the County Court. It is not necessary to express any opinion on the ground of this ruling, as we think the ruling was correct for other reasons. The action was not pending as against this plaintiff till he was served with process. (Warner v. Warner, 57 N. Y. St. Repr. 764; Haynes v. Onderdonk, 5 T. & C. 176.)

We are also of opinion that under the Mechanics’ Lien Law any lienor may commence his separate action subject to the right of any party to move to consolidate the actions as provided for by that statute.

The agreement between the owners and the contractors fixing the amount of damages for alleged delay, made at the time of the abandonment of the work, was not conclusive on that subject. As the consideration for that agreement and allowance the owners made stipulations on their part relative to deposits of moneys and contests of liens, which they wholly failed to comply with. This default on their part avoided the agreement.

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    William H. Neff, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Trespasser on a railroad — liable for damages — a superstructure oner the, track is not per sc a nuisance —failure to use ‘ ’ tell-tale ” signals — who is liable therefor.

    If a trespasser on a railroad causes an injury to the employees or passengers of the railroad company the trespasser will he liable for the damages he has thus caused.
    A superstructure across the tracks of a railroad, of a height insufficient to allow brakemen on freight trains passing under it to stand on the top of the freight cars, is not per se illegal.
    If it he conceded that the use of “tell-tale” signals on a bridge is so general that a failure to maintain them may he deemed negligence, even in the absence of a statute requiring their use, the duty of maintaining them devolves upon the railroad corporation whose tracks run under the bridge, and not upon the corporation whose tracks are upon the bridge.
    , Appeal by tlie plaintiff, William li. Neff, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of tlie county of Orange on tlie 8tli day of December, 1893, upon the dismissal of tlie complaint, directed by tlie court after a trial at the Orange Circuit, before the court and a jury.

      John W. Lyon, for the appellant.

      AsKbel Green and A. K Gassedy, for the respondent.
   Cullen, J.:

This is an. appeal from a judgment entered upon a nonsuit at Circuit. The plaintiff was a brakeman in the employ of the Erie Railway Company. At a point some short distance west of Jersey City, in the State of New Jersey, the "West Shore railroad, which is leased and operated by the defendant, crosses the Erie railway on a bridge which is eighteen feet above the rails of the last-named road. There were no tell-tales ” on the bridge. The plaintiff was on the top of a refrigerator car in a train on the Erie road, and,, while the train was passing under the bridge, was struck by it and severely injured. For this injury he has sued the defendant.

The theory upon which it is sought to enforce a liability against the defendant is that the bridge was per se a nuisance, and that the-defendant was guilty of maintaining a nuisance. "We think this-proposition cannot be sustained. The duty of maintaining its railroad reasonably safe for operation by its servants rested on the Erie Company, not on the defendant. Undoubtedly, if any trespasser on a railroad caused an injury to its employees or passengers, the trespasser would be liable. But there was no proof or claim that the defendant was a trespasser. On the contrary, it must be assumed (premising that defendant’s road was constructed after the Erie railway) that the bridge was built with the assent of the Erie Company. The question then is whether a structure across a railroad, of height insufficient to allow brakemen to stand on the top of freight cars, is per se illegal. There is no statute to be found in this State, nor proof of any in the State of New Jersey, to show that such is the law. The New York statute (Chap. 439, Laws of 1884), directing that railroads shall place warning signals at every low bridge or structure which crosses the track, recognizes the legality of such bridges and structures. R is a matter of common knowledge that the vast majority of bridges and tunnels are of height insufficient to permit persons to stand on the cars while passing under or through them. The reports are full of cases of. injuries to railroad employees arising from such bridges or structures, yet, with one-exception, to be commented on hereafter, we cannot find any authority for the claim that it is illegal or negligent to maintain ,such a structure. In Wallace v. Central Vermont R. R. (138 N. Y. 302) (the latest case on the subject), where a nonsuit was reversed, the negligence of the defendant was placed on the condition and location of the warning signals, but no suggestion was made that the bridge itself was improper.

The principal authority relied on for the plaintiff is Dukes v. Eastern Distilling Company (51 Hun, 605). In that case the jrlaintiff, a brakeman on the Long Island railroad, was injured by a bridge placed by the defendant over the railroad. The case was affirmed by the Court of Appeals without opinion. In the opinion at General Term it is said : “ The bridge was built with the consent of the railroad company, and has been enlarged some with like consent. This consent was no defense to the construction of a dangerous nuisance.” These isolated expressions would doubtless sustain the plaintiff’s claim, but they were entirely obiter. A reference to the printed appeal book shows that there was no such point in the case. At Circuit the exact contrary was assumed to be the law. The trial judge charged, “ but before the plaintiff can recover, you must be satisfied that the structure was unlawfully there; that is to say, that the company never consented that it should be put there, and if it did consent, it subsequently revoked that consent, and notified the distillery company to remove it.” The dictum of the distinguished presiding justice in the Dulces case would seem in conflict with his own opinion in Ryan v. Long Island R. R. Co. (22 N. Y. St. Repr. 654) where the defendant was held not liable for failure to place warning signals on the interior bridges of a group of five low bridges.

As to the abseuce of “tell-tales” on firebridge, no statute of New Jersey was proven making it a duty to maintain such signals. If it be conceded that the use of such signals is now so general that a failure to maintain them may be deemed negligence, even in the absence ■of statutory requirement, we think the duty of such maintenance •devolved upon the Erie Railroad Company, not upon the defendant.

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. Peter J. Langan v. Henry I. Hayden, as Commissioner of Police and Excise of the Police Department of the City of Brooklyn.

      Brooklyn police — technical accuracy not required in charges against an officer thereof.

    Technical accuracy is not requisite in proceedings brought before the commissioner of police of the city of Brooklyn against a member of the police force thereof ; it is sufficient if the charge fairly apprises the accused of the offense with which he is charged.
    The specification contained in a charge against a member of the police forcé of the city of Brooklyn, to the effect that the person charged was engaged in a fight with certain named persons, “during which he is accused of attempting to shoot George Myer,” although technically defective, in not charging that the accused in fact attempted to shoot Myer, is sufficient in a proceeding before the police commissioner of such city.
    Certiorari issued out of tbe Supreme Court, and attested on tbe 23d day of March, 1893, directed to Henry I. Hayden, as commissioner of police and excise of tbe police department of the city of Brooklyn, requiring the return of tbe rules and regulations of tbe police department of tbe city of Brooklyn, and of all proceedings, decisions and actions bad and made in tbe matter of tbe removal of tbe relator from tbe police force, together with tbe record thereof.
    Tbe relator was charged with having engaged in a figlit in a saloon and having drawn a pistol and attempted to shoot one George Myer.

      Baldwin F. Strauss, for tbe relator.

      Jacob Br&rmer, for tbe respondent.
   Cullen, J.:

This is a certiorari to review a decision of the respondent dismissing the relator from the police force of tbe city of Brooklyn for alleged misconduct.

We think there was no legal error committed on the trial of tbe relator. Tbe second charge at least set out a substantial offense, to wit, that of being engaged in a fight with certain named persons, “ during which he is accused of attempting to shoot George Myer.”

The criticism on this specification, that it does not charge that as a matter of fact the relator did attempt to shoot, but merely that he was accused of attempting to shoot, is technically well taken, and probably such an allegation in an indictment would be bad. But technical accuracy is not requisite in these proceedings. It is sufficient if the charge fairly apprises the relator of the offense of which he is accused. This the specification did. Though the report of the •captain of the precinct made on an examination of the relator’s ■alleged misconduct is attached to the charges, and found in the return, we cannot find that it was put in evidence on the trial. ■On the contrary, the captain was sworn as a witness on the trial and ■examined. No error was, therefore, committed in the receipt of evidence.

That the relator was engaged in a broil in the saloon in which the alleged offense was committed and drew his pistol, was undisputed. Whether the relator was the aggressor and at fault, or whether he acted in self-defense, was a question sharply contested, and the witnesses on one side flatly contradicted those on the other as to the ■details of the occurrence. To which set of witnesses credence was to be given depended largely on the appearance of the witnesses, and the manner of their testifying. The commissioner had the advantage of seeing and hearing the witnesses. We have not those means of judging of the credibility of their testimony and the evidence on its face shows no such clear preponderance as justifies our interference with the determination of the commissioner under the settled rule applicable to these cases. (Barnard v. Gantz, 140 N. Y. 249.)

The proceedings should be affirmed, with costs.

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

Order affirmed, with costs.


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    Anna G. Pilcher, Appellant, v. Bernard Levino and Another, Respondents, Impleaded, etc.

      Fraudulent pwrchase of property — liability of the co-conspirators of the purchaser — excessive price —sale in fraud of pm'ties furnishing materials and labor for a building. <■
    Tile purchase of property with a preconceived intention not to pay therefor constitutes fraud; and where sueli a purchase is made by one person, and others are parties to his intention, and aid him in carrying the scheme through, they are liable equally with him.
    There is no fraud in selling property for an excessive price, even though the effect- of the purchaser’s incurring the obligation on the purchase is such as to prevent him from paying his creditors.
    It is a fraud, for which an action will lie, for a person to induce a sale of real estate to him as part of a fraudulent scheme, to which the vendors and vendee are parties, to defraud those who may become the creditors of the vendee, by furnishing material or labor on the buildings to be erected on such real estate, of which the co-conspirators of the purchaser of such material and labor are to reap the benefit. -
    It is a fraud for a creditor to conspire with his debtor that the latter shall purchase goods on credit from other persons in order that the creditor may seize such goods on execution to satisfy his own claim, even though such claim be entirely valid.
    Appeal by tbe plaintiff, Anna 0. Pilcher, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 14th day of March, 1894, upon the decision of the court rendered at the Kings County Special Term, sustaining the defendants’ demurrer to the amended complaint.

      William Q. Ooohe, for the appellant.

      Chas. H. Otis, for the respondents.
   Cullen, J.:

This is an appeal from an interlocutory judgment sustaining a demurrer to thfe complaint.

While the complaint is inartificially drawn and justly subject to the criticism of the leai’ned judge below, as presenting a confused statement of facts, we think it sets out a single good cause of action for deceit and fraud. Stripped of unnecessary allegations and verbiage, it states that the three defendants, for the purpose of enabling the defendants' Levino and .Bailey to obtain an excessive price for certain real property, and designing to cheat and defraud the plaintiff’s assignors and such other persons as should furnish labor or material for the buildings to be erected on the property, for which labor and materials the defendants did not intend to pay, agreed that Levino and Bailey should convey the property to the defendant Bedell; that Bedell should erect buildings thereon, the defendants Levino and Bailey taking mortgages back for the purchase money and their advances ; that defendant Bedell was wholly irresponsible, and that thus the other defendants would obtain through their mortgages the value of the mortgaged premises enhanced by' the improvements thereon; that in pursuance of such agreement the defendant Levino falsely and fraudulently represented to plaintiff’s assignors that the defendant Bedell was financially responsible ; that, relying on such statement, said assignors furnished on credit to Bedell the stone for the buildings erected on the premises, amounting in value to §5,100; that Bedell failed to pay such claim, and that the property was sold to satisfy the mortgages held by the defendants Levino and Bailey. In this statement are two allegations sufficient to maintain an action for deceit. The false statement of Levino as to the financial responsibility of the defendant Bedell would certainly uphold the action as against him, and the allegation that it was made in pursuance of an agreement between all the defendants to cheat and defraud plaintiff’s assignors would uphold the action as against the others. (Moorehouse v. Yeager, 71 N. Y. 594.) But the real gravamen of the complaint lies in the other allegation. The purchase of property with the preconceived intent not to pay therefor is fraud. (Nichols v. Michael, 23 N. Y. 26; Hennequin v. Taylor, 24 id. 139.)

Even if it be claimed that the purchase was made by the defendant Bedell alone, still, if the other defendants were parties to his intention, and aided him in carrying through the scheme of fraud as alleged in the complaint, they are equally liable. It is urged that there is no fraud in selling property for an excessive price, even though the effect of a purchaser incurring the obligation on the purchase is such as to prevent him paying his creditors. This is unquestionably true. But such is not the gist of the complaint. It is not that a sale was made to Bedell for an excessive price, bnt tliat it was so made as a part of a scheme [to wliicli all tbe defendants have been alleged to have been parties], that Bedell should defraud those who might become creditors by furnishing material or labor on the buildings, and the other defendants reap the benefit of the fraud. That for such a fraud an action will lie is settled by authority. (Moore v. Tracy, 7 Wend. 229; Place v. Minster, 65 N. Y. 89.) So, also, it is a fraud for a creditor to conspire with his debtor that the latter shall purchase goods on credit from other persons in order that the creditor may seize them on execution to satisfy his own claim, even though such claim be entirely valid. (Clark v. Exchange Printing Co., 74 Hun, 71.)

The judgment appealed from should be reversed, and judgment rendered for plaintiff on demurrer with costs, with leave to defendants to answer on payment of costs.

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

Judgment reversed, and judgment rendered for plaintiff on demurrer, with costs, with leave to defendants to answer in twenty days on payment of costs.


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    Margaret G. Westerfield, as Executrix, etc., of Joseph H. Westerfield, Deceased, Respondent, v. Henry F. Price, as Administrator, etc., of William M. Price, Deceased, Appellant.

      Accounting between partners speculating in real property.

    Upon tie trial of an action brought for an accounting, it was shown that the plaintiff’s testator and the defendant’s intestate, together with one O’Neill and another, entered into a pool or joint speculation for the purchase and sale of oil lands in the State of West Virginia, and that the only assets of such pool were two pieces of land (in which the plaintiff was entitled to a one-quarter interest), the title to one of which pieces was taken in the name of Jayne, a clerk of the defendant’s intestate, and was subsequently conveyed to the defendant’s intestate, and the title to the other of which was taken in the name of O’Neill and the defendant’s intestate.
    Held, that it was error on the. part of the referee to charge the defendant with the amount contributed by the plaintiff’s testator to the cost of the piece of land held in the name of O’Neill and the defendant’s intestate, as there was no principle on which the purchase could be disclaimed by the plaintiff, and no obstacle which would prevent his obtaining his full share or interest in such land.

      Appeal by the defendant, Henry F. Price, as administrator, etc., of William M. Price, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 21st day of November, 1893, upon the report of a referee.
    B. Burnhu/Db Moffat, for the appellant.

      E. II. Westerfield, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiff entered upon the report of a referee. The original parties to this action, the testator of the plaintiff and the intestate of defendant, with one O’Neill and another, in 1865 entered into a pool or joint speculation for the purchase and sale of oil lauds and options thereon. The plaintiff’s testator was to have a fourth interest, and the defendant’s intestate was to be manager of the pool. Jayne, a clerk of Price and his partner O’Neill, was sent to West Virginia to purchase the land. He bought some options, and in two instances the fee of the land outright. Plaintiff’s testator was furnished with two statements of the outlay by Jayne, which, however, did not enumerate the property acquired, and paid Price his quarter of such expenditure. Shortly .after, the bubble burst. The options were suffered to lapse, and the pool was left with the two pieces of real estate in West Virginia, its only assets. The title of one of these pieces was first taken in the name of Jayne, and then subsequently conveyed to Price. The title of the other piece, a tract of twenty-five acres, was taken in the name of O’Neill and Price. Both pieces still remain unsold. In 1886, Westerfield brought this action against Price for an accounting. It is unnecessary to review the details of the account, as the referee has found that all the moneys contributed by the plaintiff’s testator were applied to the purpose of the co-partnership or pool. But he has charged the defendant with $3T5, plaintiff’s testator’s contribution of one-quarter, to the cost of the twenty-five acre plot, because the title to that plot was taken in the name of Price & O’Neill, and the propriety-of the decision as to this item is the only question in dispute on this appeal.

We are of opinion that the learned referee erred. His decision in regard to this tract of twenty-five acres was in direct conflict with his decision as to the other tract. The latter tract stood in the name of Price, and the twenty-five acre tract in the name of Price & O’Neill. The plaintiff was entitled to own a one-quarter in these lands. The theory upon which the defendant was charged with plaintiff’s testator’s contribution to the twenty-five acre purchase was, that the title standing partly in the name of O’Neill, there could be no accounting as to that tract in an action in which O’Neill was not a party, and that the heirs of Price could not convey to plaintiff the legal title to his share. We cannot see why the heirs of Price, holding title to an undivided half, could not convey to the plaintiff an undivided quarter.

Rut avc think the Avhole theory erroneous. Plaintiff Avas given a receipt from O’Neill and Price showing that he had a quarter interest in the lands acquired. These lands Avere acquired, not to hold, but for speculation, for quick sale. Price was to be the manager of the pool. Assuming (which I am not prepared to concede) that the legal title should have been taken in the name of all the parties in interest, Westerfield knew from Price’s letters that the title was not so held. Westerfield never asked for a conveyance of his share; though he appears to have been anxious for an actual partition, Avhicli Price opposed, and there were negotiations between the parties for that purpose, Price never repudiated the trust or denied plaintiff’s interest. The referee has expressly found that this tract AAras purchased for the pool or partnership. We see no principle on Avhicli the plaintiff can now disclaim that purchase, and no obstacle which will prevent him from obtaining his full share or interest in the lands.

The judgment appealed from should be reversed and a new trial ordered, costs to abide event.

Rroavn, P. J., and Dykman, J., concurred.

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


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    Joseph N. Phillips, Respondent, v. The New York and New England Railroad Company, Appellant.

      Crossing over a train standing on a highway crossing — it is for the jury to say if it be negligence — direction to cross given by a brakeman on a railroad train.

    Under ordinary circumstances it is negligence for a person to attempt to cross over a freight train standing on a highway crossing; and even if the highway is improperly obstructed, prudence would require him to wait a reasonable time for the train to pass on; but it cannot be said as a matter of law that he should remain indefinitely on the highway along which he is journeying, or that he is bound to turn back and seek some other highway crossing.
    Where a traveler on a highway applies to a brakeman to.leazm how long a tz'ain standing across the highway is to remain on the crossing, and is told to climb “ right across the train,” it is for the jury, upon the trial of an action brought to recover damages for injuries sustained by such person while attempting to cross such train, to determine whether he was guilty of negligence in attempting to cross between the cars and whether the defendant was guilty of negligence in starting the train without first looking to see if any traveler on the highway, whom it had put to an extraordinary and unusual means of crossing the tracks by reason of the long obstruction of the highway, would be in danger. A brakeman on a railroad train has not necessarily the'power to inform the public and bind the railroad company as to the movements of its tz'ains, and it is error for a trial couz-t to charge that if a brakeman, or one operating a train, tells a person that he can safely cross the train, the railroad company is liable for the damages he may sustain while crossing such train, through the sudden movement thereof.
    Appeal by the defendant, The New York and New England Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of December, 1893, upon the verdict of a jury rendered after a trial at the Dutchess Circuit, and also from an order made at the Dutchess Circuit on the 22d day of December, 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 all questions of law and fact.

      Milton A. Fowler, for the appellant.

      Wood & Morsoha/um\ for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the plaintiff entered upon the verdict of the jury at Circuit.

Tlie action is to recover damages for personal injury. According to the plaintiff’s story, a freight train of the defendant stood across a highway near Hopewell in Dutchess county for from a half to three-quarters of an hour, completely preventing passage along the highway. The plaintiff desired to cross. After remaining this length of time for the train to move clear of the highway crossing, he applied to a brakeman to learn how long the train was to remain. He was told to climb “right across the train.” Hpon this he attempted to cross between the cars. While he was on the platform or bumpers of the car, in the act of crossing, the engine started and the plaintiff’s foot was injured. There was evidence tending to show that crossing either in front of or in rear of the train would have been difficult. The facts as to the invitation to cross, and the length of time during which the train had blocked the highway, were denied by the defendant, it insisting that the train had remained in its position for two minutes only.

On these facts we think that the motion for a nonsuit was properly denied. That, under ordinary circumstances, the act of the plaintiff: would have been negligent, is unquestionable. Even if the highway was improperly obstructed, common prudence would have required him to wait a reasonable time for the train to pass ón. Rut, according to his testimony, he had already waited a long period. It cannot be said as a matter of law that he should have remained indefinitely and have abandoned liis journey along the highway, nor that he was bound to turn back and seek some other highway crossing possibly miles away. If he had crossed in front of the engine, the criticism might as well have been made that such conduct was reckless, as it is now made in reference to the place where he did attempt to cross. Either crossing was safe (except for the probable requirement of agility in climbing between the cars) while the engine did not move. If the engine moved, each place was dangerous. In this, the case at bar differs wholly from that of Solomon v. Manhattan R. R. Co. (103 N. Y. 431). The plaintiff ajjplied to one of the train hands for information as to the movement of the train, and received the answer already stated. On these facts it was for the jury, if it believed the plaintiff’s evidence, to find whether the plaintiff was guilty of negligence in attempting to cross between the cars, and whether the defendant was guilty of negligence in starting the train without first looking to see if any traveler on the highway whom it had put to extraordinary and unusual means of crossing the tracks, by reason of the long obstruction of the highway, would be in danger.

The learned judge at Circuit charged, in effect, that the length of time during which the highway had been obstructed was immaterial. That if the brakeman or one operating the train told the plaintiff that he might safely cross the defendant was liable. To this the defendant excepted. We think the charge in this respect erroneous. A brakeman would not necessarily have the power to inform the public and bind the company as to the movements of its trains. It was not a question of law hut one of fact whether, under the circumstances of the case — the great delay of the train and the probable danger — t-lie plaintiff was justified in relying on the brakeman’s statement, and whether he should have crossed in the manner suggested or in some other way. Fqr this error the judgment must he reversed.

Judgment and order denying new trial reversed. A new trial ordered, costs to abide event.

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

Judgment and order reversed and new trial granted, costs to abide tlie event.


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    In the Matter of the Application of Eliza Tyler for Revocation of Letters of Administration upon the Estate of Owen Tyler, Deceased. Eliza Tyler, Respondent, v. George A. Tyler, Appellant.

      Subsequent marriage, by a wife guilty of adultery who has been deserted — pi'oof of desertion and as to the residence of the husband, required.
    Assuming that a wife whose adultery causes her husband to leave her, can, after the expiration of five years, bring herself within the provisions of the statute protecting subsequent marriages, where the wife has been deserted by her husband, something more than the mere act of desertion by the husband must be shown; it must be shown where the husband went to reside, or that diligent inquiry in that respect had proved unavailing; that he had abandoned his former resorts or occupations, and, if his residence was discovered, that he had after-wards abandoned such residence without leaving any trace of where he had gone.

      Appeal by George A. Tyler from a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of the Kings County Surrogate’s Court on the 1st day of November, 1893, vacating and revoking the letters of administration issued to George A. Tyler on the goods, chattels and credits of Owen Tyler, deceased.

      Arthur L. Imermore, for the appellant.

      Gha/rles M. Stafford, for the respondent.
   Cullen, J.:

This is an appeal from a decree of the surrogate of Kings county, revoking letters of administration to the appellant, and confirming the issue of such letters to the respondent. The appellant is a son of the deceased; the respondent claims to be the widow of deceased.

The only question is as to the respondent’s marriage with Owen Tyler, which issue the learned surrogate decided in her favor.

The marriage claimed by the respondent was unceremonial. It is not necessary to review the evidence by which it was sought to be established, for in our opinion on the case made by her she was unable to contract the marriage. Concededly Eliza Tyler was married to one Roland Parker, and, as found by the surrogate, resided with him as his -wife till the year 1880. Previous to that time the respondent had formed an adulterous connection with the deceased, which relation continued (adulterous or lawful) up to the latter’s death. In 1880 Parker left the respondent. In 1886 a son of Parker and the respondent was shot, and his death feared. At that time respondent sent Tyler for her husband. lie found Parker and brought him to the house where Tyler and respondent were living. There is no evidence as to Parker’s existence or whereabouts since that time. The respondent has made no inquiry concerning him, or endeavored to discover him since then. On these facts the surrogate found that for more than five years prior to the alleged marriage of 1891, Roland Parker had absented himself from the petitioner without being knowii to her to be living during that time; that she never heard whether he was living or dead ; that at the time of the marriage she believed him to be dead.

The provision of law which protects subsequent marriages where a party has been deserted by a husband or wife, is as follows: “ If any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority.” (2 R. S. 139, § 6.)

The person desiring to avail himself of this statute should be required to act in perfect good faith. “He cannot shut his eyes and ears and justify a second marriage because for five years he did not hear of his wife. Did he try to hear of her ? Did he honestly believe she was dead ? Did he make inquiry ? * * * Was he excused from inquiring by a false report of her death?” (Gall v. Gall, 114 N. Y. 109.)

Judged by this rule, we think that the finding was erroneous. There was certainly no moral or legal duty upon Pai’ker to continue to reside with his wife and her paramour. On the contrary, such conduct on his part would have been unmanly and indecent. His mere leaving his former residence under such circumstances would not constitute an absenting himself within the statute. Assuming that a wife whose adultery causes her husband to leave her can bring herself within the protection of this statute, something more than the mere leaving her by the husband should be shown. It should be shown where the husband went to reside, or that diligent inquiry in that respect had proved unavailing; that he had abandoned his former resorts or occupation ; if his residence was discovered, that he afterwards had abandoned such residence without leaving trace of where he had gone. This case is barren of such proof. It is not proven where Parker went to reside when he left his wife in 1880, or where he was at work at that time. In 1886 there was apparently no difficulty in finding him to bring him to his invalid son. It does not appear that any effort has been made since to find him or to find information concerning him. The respondent’s story is that she and deceased agreed that Parker was a bad man, and that they should live together till deceased could marry her. If such was the agreement, she did not want to hear of her hmsband. - She cannot wait passively the lapse of five years without making inquiry, and then claim the protection of the statute.

The decree appealed’ from should be reversed; but as new evidence may be supplied on another hearing and possibly Parker be shown to have died before the time of the alleged marriage in dispute, a new trial should be had before the surrogate, costs to abide event.

Brown, P. J., and Dtkman, J., concurred.

Decree reversed and new trial granted before the surrogate, costs to abide the event.