author: Cullen, J.:

text:
    Jacob G. Bahr, Respondent, v. Benjamin Boley, Appellant.

      Trespass on lands — proof of damages to the person, or to personal property, proper.

    In an action to recover damages for trespass on lands the plaintiff can allege and prove all the injuries caused by the trespass, either to his person or to his personal property. In such a case the cause of action will be trespass and the injury to his person and personal property will not be an independent cause of action, but will constitute matter in aggravation of the damage.
    Appeal by the defendant, Benjamin Boley, from an order of the Supreme Court, granted at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 5th day of February, 1895, overruling the amended demurrer interposed by the defendant as frivolous and directing that plaintiff have judgment thereon for the relief demanded in the complaint.

      Louis Wertheimer, for the appellant.

      J. Stewart' Moss, for the respondent.
   Cullen, J.:

This is an appeal from an order of the Special Term overruling the defendant’s demurrer as frivolous.

The action is for a trespass on the plaintiff’s land, ejecting him therefrom and the conversion of plaintiff’s property. The complaint further related that on the said day, after forcibly assaulting and ejecting plaintiff, the defendant maliciously and without cause caused the plaintiff to be arrested and taken through the public streets of the city of Brooklyn to a station house, in charge of a policeman in uniform, and from said station house to a j>olice magistrate, who discharged him.” The defendant demurred on the ground that several causes of action were improjjerly united. There is no doubt that in an action for trespass on lands the plaintiff could allege and prove all his injuries caused by the trespass either to his person or to his personal property. In such case the cause of action would be the trespass, and the injury to person and property will not be an independent cause of action, but aggravations of the damage. We think that the allegation of the complaint cpioted is to bo construed as alleging the continuation of a single trespass. In this view there is but a single cause of action set forth in t-lie complaint. It may be that the question presented by the demurrer was sufficiently debatable to have warranted the court in refusing the application, but as we believe the demurrer untenable it is not worth while to remit the parties to another hearing.

The order appealed from should be modified by granting the defendant leave to withdraw his demurrer and answer on payment of the motion costs, and, as modified, affirmed, without costs of appeal to either party.

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

Order modified by granting defendant leave to withdraw his demurrer and answer on payment of motion costs, and, as modified, affirmed, without costs of appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Charles P. Britton, Plaintiff and Respondent, v. Angeline Bohde, Defendant and Respondent. New York Building Loan Banking Company, Appellant.

      Parties to an action at law — determined by the plaintiff.

    In an action at law the plaintiff has the privilege of determining what parties he will proceed against, and othar parties cannot intrude themselves into the action against his will.
    Appeal by the New York Building Loan Banking Company from an order of the City Court of Mt. Yernon, entered in the office of the clerk of the City Court of Mt. Yernon on the 10th day of January, 1895, denying its application to be made a party defendant herein.

      Williami H Hamilton and Henry R. Richards, for the appellant.

      Frank M. Buck, for the plaintiff, respondent.
   Cullen, J.:

This is an appeal from an order of the City Court of Mt. Yernon denying the application of the appellant to be made a defendant in the action.

The action is to recover the sum of $800 alleged to be due from the defendant on account of a mortgage executed by the plaintiff to her. The appellant seeks to intervene on the ground that this sum of money really belongs to it. We think that this fact, if true, gave the appellant no right to intervene. If the -plaintiff is not the owner of the claim he will be defeated in this action. But even if he should wrongly succeed therein the appellant will nowise be injured. If it has a valid claim against the defendant it may sue for it and the recovery in this action will nowise liar its claim. This action is an action at law, and it is settled by authority that in such actions the plaintiff has the privilege of determining what parties he will proceed against, and that other parties cannot intrude themselves into the action against his will. (Chapman v. Forbes, 123 N. Y. 532.)

The order apyiealed from should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Dyicman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Cullen, J".:

text:
    Caroline Meyer, Respondent, v. Mary Mallon, Appellant, Impleaded with Another.

      Motion to set aside a judgment — laches — proof as to service of the summons and complaint.

    A motion to set aside a judgment of foreclosure and sale and to permit a defendant to answer, made after a lapse of seventeen years, will be denied on tbo ground of gross laches.

    The judgment roll in an action of foreclosure contained an affidavit of the personal service of the summons and complaint upon a defendant, made by the plaintiff’s attorney who had since died.

      Held, that this positive oath should outweigh the statement in such defendant’s affidavit to the effect that, to the very best of her recollection, there was no summons and complaint served upon her.
    Appeal by the defendant, Mary Mallon, from an order of the Supreme Court, granted at the Westchester Special Term' and entered in the office of the clerk of the county of Westchester on the 8th day of December, 1894, denying the defendant’s motion to open, vacate and set aside the judgment of foreclosure and sale hereinbefore entered in this action.

      Normtm A. Lcmlor, for the appellant.

      Martin J. Keogh, for the respondent.
   Cullen, J".:

This is an appeal from an order of the Special Term denying the application of the defendant Mallon to set aside a judgment of foreclosure and sale and permit the defendant to answer.

We think the application was properly denied on the ground of the gross laches of the appellant. The judgment sought to be vacated was rendered on the 9th day of June, 1877. This application was not made until October, 1894, after a lapse of over seventeen years. The judgment roll contains an affidavit of personal service of the summons and complaint upon the appellant, made by the plaintiff’s attorney who has since died. This positive oath should outweigh the statement in appellant’s affidavit, which is simply to the effect that, to the very best of her recollection, there was not any summons and complaint served upon her. The judgment was, therefore, regular, and now, after it has stood for this long period and the sale made under it has remained unchallenged, should not be opened.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

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

Order-affirmed, with ten dollars costs and disbursements.


text:
    Harry Cowdrey, as Agent of Sarah C. Savage, Respondent, v. Lawrence A. Turner, Appellant, Impleaded with Another.

      Sv/nvmmy proceedings, by a purchaser under a statutory foreclosure — .contents of the petition —filing of afiidamts of sale, etc.

    A petition in summary proceedings, instituted by the purchaser at a sale under a mortgage, foreclosed by advertisement pursuant to the statute, must allege the existence of a power of sale contained in the mortgage foreclosed, and that the mortgage had been recorded in the county where the property was situated.

      Summary proceedings cannot be instituted by tbe purchaser under a sale by foreclosure under tbe statute until the affidavits of sale, of publication and of service of the notice have been filed and recorded.
    Appeal by tbe defendant, Lawrence A. Turner, from a judgment of the County Court of. Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of September, 1894, and also from an order of the County Court of Kings county, made on the 27th day of July, 1894, and entered in the office of the clerk of the county of Kings, which affirmed a final order made by a justice of- the peace of the city of Brooklyn.

      John T. Barna/rd, for the appellant.

      F. IT. Cowdrey, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the County Court of Kings county affirming a final order of a justice of the peace in summary proceedings to recover the possession of land.

The respondent is the agent of one Sarah Ohauncey Savage. She was the mortgagee of the premises the subject of these proceedings. That mortgage was foreclosed by advertisement under the statute. Thereupon, under subdivision 2, section 2232, Code Civil Procedure, her agent instituted these proceedings to recover possession of the mortgaged premises from the appellant, who is in possession under the mortgagor.

We think that there are two fatal defects in these proceedings. The petition presented to the justice of the peace was insufficient. It simply stated that Sarah Savage purchased the premises upon a foreclosure of the mortgage by proceedings taken as prescribed in title 9, chapter 17 of the Code of Civil Procedure. Mortgages can be foreclosed under the statute only where they contain a power of sale, and when they have been recorded in the county where the property is situated. These requirements are jurisdictional and should have been averred in the petition. (State ex rel. Dewey et al. v. Burdick et ux., 5 N. Y. Supp. 363.)

The second objection to the plaintiff’s recovery is that it appeared on the hearing that she had not filed and recorded the affidavits of sale, of publishing and of service of notice as prescribed by sections 2396-2398. Under the Revised Statutes and before the Code it was held that where the mortgagee or his assignee purchased it was necessary that the affidavits of sale and publication should be recorded before the title of the purchaser became complete, such affidavits acting as a substitute for the deed which it was impossible for the mortgagee to execute to himself. (Arnot v. McClure, 4 Den. 41; Bryn v. Butts, 27 Barb. 503.)

We do not understand the authority of Arnot v. McClure in this respect to have been overruled by subsequent decisions. In Tuthill v. Tracy (31 N. Y. 157) it was held that a sale pursuant to the statute bars the equity of redemption without affidavits being made; but it was also held that until the affidavits are made and filed the title of the purchaser was merely equitable. In Mowry v. Sanborn (68 N. Y. 153) the case of Arnot v. McClure is reviewed. It was there held that common-law proof of the service of the notice of sale could be admitted to supply a defect in an affidavit of service on file. But that decision proceeded on the ground that affidavits of service of notice of sale were not required by the statute, as it then stood, to be filed or recorded.

The question would now seem to be put at rest by the provisions of the Code. Section 2400 provides: The purchaser of the mortgaged premises, upon a sale conducted as prescribed in this title, obtains title thereto, against all persons bound by the sale, without the execution of a conveyance. Except where he is the person authorized to execute the power of sale, such a purchaser also obtains title in like manner, upon payment of the purchase money and compliance with the other terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section but one. But he is not bound to pay the purchase money until the affidavits specified in that section, with respect to the property purchased by him, are filed or delivered, or tendered to him for filing.”

This enactment, that a purchaser other than the donee of the power acquires title without the filing and recording of the affidavits, is equivalent to a declaration that the donee of the power, when the purchaser, must file and record the affidavits to complete his title. That this was the intention of the codifier is plain from the notes of Mr. Throop to this section and section 2396.

The judgment of the County Court and of the justice of the peace should be reversed, with costs and disbursements.

Brown, P. J., and Dyicman, J., concurred.

Judgment of County Court and justice of the peace reversed, with costs.


text:
    Holland Trust Company, as Trustee, etc., Respondent, v. The Consolidated Gas and Electric Light Company of Westchester County and Another, Appellants, Impleaded with Others.

      A receiver of a corporation under a fw'st mortgage, superseding one appointed under a junior mortgage — effect of allegations upon information and belief — payment oves' of money collected.

    In a proper case a receiver should be appointed upon the foreclosure of a paramount mortgage given by a corporation, although a receiver has previously been appointed of the property of such corporation in an action instituted for the foreclosure of a junior mortgage.
    The order appointing such a receiver should not direct the first receiver to pay over to the new receiver the income and money collected by him, but that question should be left for adjudication in a proper proceeding to recover them.
    Upon an application for the appointment of a receiver, a verified complaint, made upon information and belief as to some of its allegations particularly within the knowledge of the defendant, when not met or denied either by answer or affidavits, fully establishes the facts therein alleged and the rights of the parties accruing from such facts.
    Appeal by the defendants, The Consolidated Gas and Electric Light Company of Westchester County and another, from an order of the Supreme Court, granted at the Westchester Special Term and entered in the clerk’s office of the county of Westchester on the 28th day of November, 1894, removing Clarence D. Turney as receiver of the Consolidated Gas and Electric Light Company of Westchester County, and appointing James H. Moran as such receiver, and directing the said Clarence D. Turney to turn over to said James H. Moran all the property and effects of said company.

      Carlisle Norwood and Chandes JB. Reid, for the appellants.

      George M. Van Noesen, for the respondent.
   Cullen, J.:

Tliis is an appeal from an order of the Special Term removing Clarence D. Turney as receiver of the property of the defendant the Consolidated Gas, etc., Company, and appointing James II. Moran receiver.

This action is to foreclose a mortgage of the plant and franchises of the defendant gas company, executed to secure the payment of a series of bonds. A subsequent mortgage was executed on the same property by that defendant to the defendant the American Debenture Company. A foreclosure of this second mortgage was instituted before this action was commenced, and in the earlier action Mr. Turney was appointed receiver.

There seems to be some misapprehension in the minds of the parties as to the character of these receiverships. Mr. Turney appears to have been appointed a general receiver of the corporation, and the order made in this action removes him as such receiver, and appoints as receiver in his stead Mr. Moran, who is also appointed receiver of the mortgaged premises and property. There was certainly no ground alleged in the complaint in this action for the appointment of a general receiver of the corporation, who stands in the nature of a statutory assignee. The case presented falls only within subdivision 2, section 1810, Code. The receiver whose appointment is authorized by this subdivision is only a receiver of the mortgaged property. The practice and power of the court is, therefore, substantially the same as it was in Equity or Chancery before these provisions of the Code. We judge from the papers that such should have been also the character of the earlier receiver. We have, therefore, here the simple case of an application made in the foreclosure of a paramount mortgage for the. appointment of a receiver in that action for the benefit of the plaintiff therein.

If there was a proper case made for a receiver, one should have been appointed in this action, notwithstanding a receiver had been previously appointed in the foreclosure of the junior mortgage, for the earlier receivership inured, not to the benefit of this plaintiff, but solely to that of the junior mortgagee: (Ranney v. Peyser, 83 N. Y. 1.)

In that case it was held that a prior mortgagee, to reach the rents of mortgaged property, must obtain a receiver in his own action, who, when appointed, would supersede the other receiver. This was, therefore, practically an original application for a receiver, and it rested in the discretion of the court as to whom it would appoint. Mr. Turney has no better ground of complaint of the failure to appoint him than any other applicant for the position would have.

The application was made on a verified complaint and affidavits. The complaint set out the mortgage, the issue of the bonds, default in the payment of the interest coupons and an election by the bondholders under the terms of the mortgage to declare the whole principal due. The default and election are alleged on information and belief. The affidavit sets forth the contents of the mortgage. No answer was made to the complaint nor any affidavit presented denying the default. The defendant insists that the allegations of the complaint as to the default and election, being made on information and belief, were insufficient to justify the order. Many cases are cited by counsel to show that allegations in affidavits made on information, without stating the source of the information, are not competent proof of the facts stated. All of these cases have arisen with reference to attachments or orders of arrest and are not in point. ■ The Code requires that these provisional remedies shall be granted only on proof by affidavit of the necessary facts. But by the Code (§ 713) a receiver may be appointed “ on the application of a party who establishes an apparent right to or interest in the property.” We think that a verified complaint, even on information and belief, as to some of its allegations particularly within the knowledge of the defendant, when not met or denied either by answer or affidavits, fully establishes the facts therein alleged and the rights of the parties accruing from such facts. An attachment or order of arrest is granted ex parte ¡ a receiver can be appointed only on notice, thus giving the party proceeded against an opportunity to set up any defense or controvert any claim.

If it be conceded that there should have been positive proof of the election of the bondholders to declare the principal due, that fact would not affect the plaintiff’s right under this mortgage to the appointment of a receiver. The mortgage executed to it expressly pledged not only the property, but the revenues and rents, and provided that, upon filing a bill to foreclose, the trustee should have the right to a receiver of the same. It was, therefore, not necessary that the whole principal should be due to authorize the appointment of a receiver. (Hollenbeck v. Dormell, 94 N. Y. 342.)

So far as relates to the income and moneys collected by the first receiver, it seems fairly debatable whether the plaintiff in this action is entitled to receive them or not. At least the question should not have been determined on this application ; it should be left for adjudication in a proper proceeding to recover them. In this respect, we think, the order below was erroneous.

The order appealed from should be modified by striking out such parts thereof as appoint a receiver of other than the mortgaged property and franchises, and also so much thereof as directs Turney, receiver, to pay over to the new receiver the moneys in his hands, and in all other respects affirmed, without costs of this appeal to either party.

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

Order modified by striking out such parts thereof as appoint a receiver of other than the mortgaged property and franchises, and such part as directs Turney, receiver, to pay over to the new receiver the money in his hands. In all other respects the order is affirmed, without costs.


author: Cullen, J. :

text:
    Philip Wood, Respondent, v. Orlando M. Harper and Another, Appellants.

      Jfinforcement of a mortgage lien — when the equity of redemption has been sold, cmd 'purchase money retained to pay the mortgage — •a single cause of action.

    A complaint in an action brought for the foreclosure of a mortgage, in addition to the usual allegations contained in a complaint in foreclosure, alleged the conveyance by an owner of the equity of redemption of a part of the mortgaged premises to one of the defendants; the retention by that defendant, out of the purchase money, of a sum to discharge the plaintiff’s mortgage, and the assignment, by the grantor in such conveyance, of his claim for the unpaid portion of the purchase money. It demanded judgment for a sale of the premises, and that out of the proceeds of sale the plaintiff’s mortgage be satisfied.

      Held, that such allegations were averred only to show that the portion of the mortgaged land sought to be sold in the action was in equity primarily liable for the mortgage debt, and that but one cause of action was stated in the complaint.

      Appeal by the defendants, Orlando M. Harper and another, from an order of the Supreme Court, granted at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 26th day of November, 1894, denying the motion of the defendants to compel the plaintiff to make his complaint more definite and certain by separately stating or numbering the several causes of action therein set fortín
    The complaint, after setting forth the execution of the bond and mortgage in question; the conditions thereof; that certain payments had been made thereon, and the assignment of said bond and mortgage to the plaintiff, contained the following other allegations:
    “ VII. That after the date of the said mortgage set forth in the second paragraph of this complaint, and before the assignment thereof to the said Elizabeth H. Cook, set out in the fourth paragraph of this complaint, the said Charles McCaffrey, who had in the meantime become seized of said mortgaged premises as trustee, by an instrument in writing under his hand and seal, dated the 3d day of September, one thousand eight hundred and ninety-two, and recorded in the office of the clerk of Suffolk county on the 6th day of September, 1892, in Liber 378 of Conveyances, page 75, in consideration of the sum of seven thousand seven hundred dollars expressed to be paid by tlie defendant Orlando M. Harper to the said Charles McCaffrey, duly conveyed to the said defendant Orlando M. Harper part of the said mortgaged premises. * * *
    “ The said property so sold and conveyed to the said Orlando M. Harper was sold subject to an existing mortgage thereon to the Riverhead Savings Bank to the extent of three thousand two hundred dollars, and interest from the date of the said deed, and subject also to the mortgage to Hewlett Scudder, set out in the second paragraph of this complaint, to the extent of one thousand dollars then and still due thereon; which last-mentioned mortgage has been assigned to the plaintiff in manner hereinbefore appearing. And the said Orlando M. Harper deducted from the purchase money expressed in the said deed the said sum of one thousand dollars so remaining due on the said last-mentioned mortgage, and retained the same in his hands to meet the lien of said last-mentioned mortgage, as more fully appeal’s by a letter on the subject written by John Larkin, the attorney of the said Orlando M. Harper, and addressed to the said Charles McCaffrey, of which the following is a copy:
    “‘Ernest G. Stedman Counsellor at Law, 7 Nassau Street.
    “ ‘New York, Septeynber 9, 1892.
    “ ‘ Dear Sir.— The Title Guarantee and Trust Company have just informed me that the second mortgage held by Mr. Hewlett .Scudder is in the sum of six thousand dollars and not in the sum of one thousand dollars as represented when we closed the title.
    ‘“We must insist now that you produce a release of the tract conveyed to us by you, and Mr. Harper will pay the balance of the consideration agreed upon, to wit, one thousand dollars, as heretofore arranged, which was retained to cover the mortgage to that amount on said premises.
    “ ‘ Yours truly,
    ‘“JOHN' LARKIN.
    “‘To Charles McCaffrey, Esq., 29 Pearl Street, New York City.’
    “ YIII. That by an indenture, made on the 24th day of September, 1894, between the said Charles McCaffrey, as trustee, party of the first part, and this plaintiff of the second part, the said Charles McCaffrey, for the considerations in said indenture mentioned,' granted, bargained, sold, assigned, transferred and set over to the plaintiff all that sum of one thousand dollars, part of the unpaid purchase money retained by the said Orlando M. Harper on the sale to him by the party of the first part of the premises hereinbefore described, and for the considerations aforesaid the said Charles McCaffrey assigned and set over to this plaintiff all that the lien of the said Charles McCaffrey on said premises for the unpaid purchase money thereof so retained by the said Orlando M. Harper thereout as aforesaid, together with the interest due and to grow due thereon, to hold the same to this plaintiff, his executors, administrators and assigns, forever.
    “ IX. That all of the property comprised in the mortgage set forth in the second paragraph of this complaint, which mortgage has been duly assigned to this plaintiff in manner hereinbefore appearing, has been released from the lien thereof, except the lands and premises conveyed by the said Charles McCaffrey to the defendant Orlando M. Harper, as set forth in the sixth paragraph of this complaint; and this plaintiff claims and alleges that the whole of the said sum of one thousand dollars still remaining due on the said mortgage set forth in the-first paragraph of this complaint, by operation of the conveyance to the said Orlando M. Harper set forth in the sixth paragraph of this complaint, and by his retention of the said sum of one thousand dollars out of the purchase money, became and still is a lien on the lands and premises described in the conveyance to the said Orlando M. Harper exclusively.
    “ X. And the said plaintiff further shows that the said defendants have failed to comply with the condition of the said bond and mortgage by omitting to pay the sum of one thousand dollars, the balance now due on the mortgage so executed by the said Charles McCaffrey to the said Hewlett Scudder in the manner aforesaid, which became due and payable on the seventeenth day of June, in the year one thousand eight hundred and eighty-nine, and there is now justly due to the plaintiff upon the said bond and mortgage the sum of one thousand dollars, and interest thereon from the third day of September, 1892, and the plaintiff further shows that no proceedings have been had at law or otherwise to his knowledge or belief for the recovery of the said sum secured by the said bond and mortgage, or any part thereof, and that no other action has been brought to recover any part of the mortgage debt.

      “ XI. The plaintiff further shows the defendants have or claim to have some interest in or lien upon the said mortgaged premises, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage.
    “ The plaintiff, therefore, demands judgment that the defendants, Orlando M. Harper and Kathleen L. Harper, his wife, and all persons claiming under them or either of them, subsequent to the commencement of this action, may be barred and foreclosed of all right, claim, lien and equity of redemption in such part or parts of the said mortgage or premises as were so sold and conveyed by the said Charles McCaffrey, as trustee, to the said Orlando M. Harper, as appears by the seventh paragraph of the complaint; that the said premises mentioned and described in the seventh paragraph of this complaint may be decreed to be sold according to law; that the moneys arising from the sale may be brought into court; that the plaintiff may be paid tlie amount due on said bond and mortgage, with interest to the time of such payment and the costs and expenses of this action, so far as the amount of such moneys properly applicable thereto will pay the same; and that the plaintiff may have such other or further relief, or both, in the premises as shall be just and equitable.”

      Steelman c& Larhin, for the appellants.

      John II. Stoutenhurgh, for the respondent.
   Cullen, J. :

This is an appeal from an order of the Special Term denying defendants’ motion to' direct the plaintiff to separately state and number the several causes of action stated in the complaint.

We think that there is but one cause of action stated, that is for the foreclosure of a mortgage. The allegations of the complaint in reference to the conveyance by an owner of the equity of redemption of a part of tlie premises mortgaged to the defendant Harper, the retention by that defendant out of the purchase money of a sum to discharge the plaintiff’s mortgage, and the assignment by the grantor in such conveyance of his claim for the unpaid portion of the purchase money are averred only to show that the portion of the mortgaged land sought to be sold in this action is in equity primarily liable for the mortgage debt. The judgment prayed for asks only the sale of these premises and out of the proceeds of sale the satisfaction of the plaintiff’s mortgage. The allegations above referred to as to the conveyance to the defendant Harper may have been unnecessary to support or establish the plaintiff’s cause of action, but, nevertheless, they are to be in no sense considered as stating an independent cause of action.

The defendants’ motion was, therefore, properly denied.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J..

text:
    Jeremiah F. Sheehan, Respondent, v. Israel Golden, Appellant, Impleaded with Another.

      Action of replevin, dismissed — one defendant ‘may not insist that judgment be for a rebwm of the property to his co-defendant.

    In an action of replevin, where the goods in question have been taken by the plaintiff, and thereafter a judgment has been rendered dismissing the plaintiff’s complaint and for costs, a defendant who is alleged to have obtained the goods by false representations, and who sets up in his answer that such goods were levied upon by the sheriff, his co-defendant, under an execution against him, and who consequently is not entitled to a return of the replevined property to himself, is not in a position to insist that the judgment should direct the return of the property to the sheriff, his co-defendant, who has not asked for it.
    Appeal by the defendant, Israel Golden, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 13th day of April, 1894, upon the verdict of a jury rendered by direction of the court after a trial a"t the Erie Circuit dismissing the plaintiffs complaint upon the merits and for costs.

      E. L. Jellvneh, for the appellant.

      Wallace Thayer, for the respondent.
   Dwight, P. J..

The action was replevin for a quantity ©f goods alleged to have been obtained by the defendant Golden from the plaintiff by means of fraudulent representations. The goods were taken by the replevin process from the possession of the defendant Beck, sheriff of Erie county, who had previously seized them by virtue of an execution against the defendant Golden. The goods were not reclaimed pending the action, and the defendant Beck made default. The defendant Golden answered, denying the fraud charged against him and alleging that at the time of the levy by the sheriff the goods were the property of him, the defendant Golden, and that by virtue of such levy the defendant Beck had acquired all his, Golden’s, right, title and interest therein. He demanded judgment for the return of the goods with damages for their taking and detention, besides costs.

On the trial it appeared that the plaintiff did not discover the alleged fraud until after the levy by the sheriff and, of course, had taken no step to rescind the contract of sale nor indicated his intention so to do until after such levy; and, thereupon, the court at the Circuit, under the case of Wise v. Grant (140 N. Y. 593), directed a verdict of no cause of action. With this the defendant was not content, but asked for the direction of a verdict to the effect that the defendant Beck was entitled to a return of the property. This was refused and the defendant excepted, and tliat exception is the ground of his appeal from the judgment dismissing the complaint and for costs, which he caused to be entered on the verdict directed as above.

It is conceded that the action could not be maintained, under the doctrine of Wise v. Grant (supra); the question is whether — such being the case — the defendant Golden was entitled to a judgment for the return of the property to the defendant Beck. Of course lie was not entitled to have it returned to himself. By his answer he had expressly disclaimed for himself all right and title and interest therein after the levy by the sheriff. This disclaimer was probably too broad; lie .had at least a reversionary interest in case the goods sold for more than the amount of the execution. But he had no right to the possession of the goods. Tliat was vested in the sheriff by the levy, and it was for the sheriff to defend, or to relinquish if he saw fit not to defend it. He must be supposed to have had.his own reasons for not defending his possession of the property and demanding its return to him. In failing to do so he has acted upon liis own responsibility, and the rights of others, probably, need not suffer by his default. But in this action it is not apparent that anybody else can interpose to obtain for him what he has declined to aslc for himself.

The question is not free from difficulty, and the result indicated presents some anomalies. We are inclined to think the case is one omitted to be jirovided for in all the infinite detail of the statute which gives the “ action to recover a chattel.” Certainly we find nothing in the statute which favors the proposition that a defendant who is not entitled to a return of the property to himself, can have judgment for its return to another defendant who has not asked for it.

The merits of the case are all with the plaintiff. The defendant did not attempt to meet the case, made on the trial, of his fraudulent procurement of the goods. His sole dependence was upon a technical construction of the statute which prevented the plaintiff from maintaining his action.

We are of opinion that the court at the Circuit correctly decided to dismiss the complaint in this action and leave any party aggrieved to such further remedy as he may be advised to pursue.

The judgment appealed from should be affirmed.

Lewis and Bradley, JJ., concurred.

Judgment affirmed.


author: Dwight, P. J.:

text:
    Ellen Soper, Respondent, v. Elmer Halsey, Appellant, Impleaded with Another.

      Ma/i'riage — presumption as to —election to accept a conditional provision in a will — when unnecessary — what does not amount to the forfeiture of a benefit therein granted — services as a compensation therefor.

    Where there was neither a marriage ceremony nor any contract of marriage between a man and woman, and no agreement to live together as husband and wife, but only an agreement to live together, the man never having held the woman out to the world as his wife, nor she being reputed to be his wife, the general repute being to the contrary, the facts do not create a presumption, as a matter of law, that the marriage relation exists between the parties.
    A clause contained in the will of a testator was in the following words:

      “And I further will and direct that my said son Elmer shall have a home on my farm where I now reside during his natural life, if he shall so elect, and shall remain unmarried, but he shall have no right to bring a wife on said farm to live in case of his marriage.”

      Held, that the testator’s son Elmer would not -forfeit his interest in the farm by-failing to indicate that he elected to claim it;
    That, he was entitled to the benefit of the provision of the will in his favor whenever he chose to demand the same;
    That in order to give a proper construction to such clause and to the intention of the testator, reference must be had to and dependence largely placed upon facts aliunde the provision itself.
    It appeared that while the testator lived, Elmer had received from him ¡¡>200 a year and his board for his services.

      Held, that if he demanded the benefit of the provisions of the will in his favor, he should render to those charged with furnishing him his living such services on the farm as were appropriate as compensation therefor.
    Appeal by tbe defendant, Elmer Halsey, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Seneca on tbe 30tli day of March, 1893, upon tbe decision of the court rendered after a trial at tbe Seneca Special Term construing a certain provision in the will of Luther H. Halsey* deceased.

      J. H. Hammond, for tbe appellant.

      F. L. Manning, for the respondent.
   Dwight, P. J.:

Tbe action was to obtain a judicial construction of tbe following clause in tbe will of Luther H. Halsey, deceased, viz.:

And I further will and direct that my said son Elmer shall have a home on my farm where I now reside during bis natural life, if be shall so elect, and shall remain unmarried, but be shall have no right to bring a wife on said farm to live in case of his marriage.”

The testator made bis will in 1881 and died in 1883 at tbe age of seventy-five years. Tbo defendant, Elmer, bis only son, bad always remained at home and worked on tbe farm, and, although somewhat addicted to drink, was — in tbe language of the witnesses — very attentive to the farm as a rule,” and “ was bis father’s principal dependence for work for a great many years.”

During tbe last ten years of his father’s life Elmer maintained relations with a woman named Tallman, which the court at Special Term finds constituted marriage within the meaning of the testamentary provision in question. This finding we regard as altogether unsupported by the evidence. There was never any marriage ceremony nor any contract of marriage; there was no agreement to live together as husband and wife, but only to live together. He had never held the woman out to the world as his wife, nor was she reputed to be such, but the general reputation was to the contrary. The facts were not such as to constitute the'relation of marriage in the eye of the law, and clearly they did not constitute that relation within the intention of the testator, because, with the facts well known to him, he makes the provision in question for his son to continue so long as he shall remain ” unmarried.

Whatever the purport or effect of that provision, we have no hesitation in saying that it was not forfeited or defeated by the existence of the relation between Elmer and Elizabeth Tallman.

The remaining problem in the case, viz., to give its due construction and effect to the provision in question, according to the intention of the testator, is perhaps not so easy of solution; it must depend largely upon facts alwmde the provision itself, some of which, in addition to those already stated, are as follows :

The wife of the testator died before the will was made ; Elmer and Ellen, the plaintiff, were the only ones of his children who remained at home with him — the latter as his housekeeper and the former as his main dependence on the farm. The farm consisted of 160 acres of good land and was considered by the testator when he made his will' to be worth $16,000. He gave it, free of incumbrance, except the provision in question for Elmer, to Ellen, together with all the household effects and the live stock, except the horses. To two other unmarried daughters he gave $5,000 each, absolutely, and his residuary estate, whatever that should be. To three grandchildren he gave $1,000 each, absolutely, and to a son George, who is not otherwise mentioned anywhere in the case, the sum of $1,000, “ provided he shall call for the same within ten years after my death.’ The case affords no explanation of the curious proviso attached to this gift, but, in itself, it indicates something peculiar in the status of this son •— possibly that he had long since disappeared from home and from the knowledge of his father, and that it was even doubtful whether he was still alive. But whatever the ease in this respect, we think the son George may be dismissed from the account when a comparison is made of the several provisions for the children of the testator. To Elmer he gave $500 absolutely, and the income, annually, of $5,000, which sum he gave to his executors in trust, for that purpose, besides the working horses and farm implements on the farm at the time of his decease.

The disparity in the provisions, thus far, for Elmer and Ellen, was very great, while, so far as appears, both had deserved alike from their father. The effect of the additional provision here in question was to lessen, in some degree, that disparity, by laying a burden upon the one for the benefit of the other. It was also intended, no doubt, to have the effect of continuing the relations of the two to each other, and to the home which had been theirs in common for so many years. By the terms of the will Elmer, on certain conditions, was to have a home on the farm during his natural life, and. Ellen was to have the farm subject to the interest of Elmer. The precise question here is what the term “ home,” as here employed, was intended to include.

The court, at Special Term, said it meant only a lodging place, for which.Elmer should pay what it was reasonably worth.

We are not at all satisfied with this exposition. We think it falls short of the benevolent intention of this prudent father towards his somewhat wayward but always faithful son. It is impossible to restrict the meaning of the word “home,” as here employed, to mere shelter and a bed. Elmer had always had ahorne on the farm, and it included subsistence; and so, we are satisfied, was the home intended, to do which his father provided for him by his will.

But we do not suppose that it was intended that his sister, or her grantees of the farm, should support him in idleness. While his father lived Elmer had earned his living, and more, by his labor on the farm. He had received from his father $200 a year, besides his board, for his services. And when his father provided for him a continuance of his living on the farm, we think it fair to assume tliat it was intended he should continue to render corresponding-services in return therefor.

A similar vie-w was taken of a similar provision in a will in the case of Lyon v. Lyon (65 N. Y. 339). That was the ease of provision by a father of a home for a daughter on premises devised to sons. The daughter had been accustomed to render the usual services of a daughter in the home of her father, and the court held that under the provision in question she was entitled to a home, including support and maintenance, and was bound, in return, to render appropriate services in the home therefor.

In this case it cannot be required that Elmer should do the work which he did on his father’s farm, by which he earned $200 a year besides his board and lodging; but we think it is in keeping with the spirit of the provision made for him that he should render to those charged with furnishing him his living, such services on the farm as are appropriate as a compensation therefor.

The contention that the defendant had forfeited his “ interest in the farm ” by failing to indicate that he elected to claim it, is not to be maintained in this case. No time is fixed by the provision in which the election shall be made, and we suppose he is entitled to the benefit whenever he elects to demand it.

The judgment in this case should be modified in accordance with the views here expressed, and as so modified affirmed, without costs of this appeal to either party.

Lewis and Bradley, JJ., concurred.

Judgment modified as indicated in opinion, and as modified affirmed, without costs.


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    Eugenia Stowers, Respondent, v. Thomas Gilbert, Appellant.

      Injunction and damages for trespass — burrden of establishing the division line between adjoining lots — the judgment in an equitable action, modified upon appeal.

    In an action brought to obtain an injunction restraining an alleged trespass and for damages, tlie trespass consisted in the cutting off of the edge of the proj ecting eaves of the plaintiff’s house and in some slight interference with other portions of that structure, in the erection by the defendant of the wall of a new structure on his own lot adjoining that of the plaintiff.

      Held, that the. defendant was bound to establish with precision, by affirmative proof, the exact location of the division line between the two lots, or he could not justify his interference with the possession of the plaintiff.

      A survey made by tlie officials of tlie city iu which such premises were located, if made many years after tlie premises were laid out and their division line established, is not infallible authority, and is, alone, insufficient to overcome the evidence afforded by monuments theretofore existing.
    The judgment rendered in an equitable action is subject to modification upon appeal.
    Appeal by tlie defendant, Thomas Gilbert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of IVIonroe on the 17th day of April, 1894, upon tlie report of a referee.

      F. A. Mcmn, for the appellant.

      G. M. Allen, for the respondent.
   Dwight, P. J.:

The action was for an injunction to restrain an alleged trespass and for damages. The trespass described consisted in tbe cutting off tbe edge of projecting eaves of the plaintiff’s bouse and some slight interference with other portions of that structure, in the erection by tlie defendant of tlie wall of a new structure on his own lot adjoining that of the plaintiff. The question involved was — as might he supposed — the exact location of the division line between the two lots. This the defendant was bound to establish, with precision, by his own affirmative proofs, or lie could not justify his interference with the obvious and unquestioned possession of the plaintiff. This the referee finds he has failed to do, and we agree with him in respect to the effect, or rather non-effect, of the defendant’s proofs. Those proofs, in effect, ignore the existing and ostensible landmarks which indicated the actual location of, the line in question and seek to establish a new line in accordance with a certain survey made for tlie city of Rochester, to fix the lines of the two streets upon which tlie premises in question were bounded. But tliat survey was made many years after tbe premises in question were laid out and tlie line in question was established. Of course no infallible authority was to be ascribed to that survey although made hv an official surveyor, and tlie monuments erected in accordance with it could, of themselves, have no effect to overcome the evidence afforded by monuments already existing. Tlie burden was still upon tlie defendant to prove that the new monuments were, in fact, correct, and the earlier ones not in accordance with the true and original location of the line. This was manifestly not accom'plished by the evidence on the part of the defendant. Indeed, he made substantially no attempt to justify the location of the city monuments but relied upon them as the basis of his own survey to fix the location of the line in question. Such being the case, we agree with the referee that he failed in his defense.

But, upon the evidence relating to the extent of injury done to the plaintiff’s premises, it seems to us that the award of damages was excessive. The amount of land embraced in the encroachment was inconsiderable, and for it the plaintiff still has her action of ejectment; and the value of her entire house was fixed by. the evidence in her own behalf at $500, which was the sum awarded for the damage done to it, which we think would be fully covered by the award of one-fifth of that amount.

The action being an equitable one the judgment is subject to modification on appeal.

We are of opinion that it should be modified by reducing the amount of the recovery for damages to the sum of $100, and as so modified affirmed, without costs of this appeal to either party.

Lewis and Bradley, JJ., concurred.

Judgment modified by a reduction of the recovery to $100, and as so modified affirmed, without costs.


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    Thomas J. Reynolds, Appellant, v. Empire Lumber Company (Limited), Respondent.

      Debtor and creditor — use by a creditor of a check for less them his claim — when it operates as a full payment.

    A debtor sent to bis creditor a cbeclc for a certain amount in full of tbo amount be claimed was due from him to bis creditor. Tbe creditor refused to accept tbe check in full payment of tbe account, stating that there was a balance over and above the amount of tbe check still due from the debtor. Each of the parties Insisted upon the correctness of his own version of their mutual account.
    The creditor finalty notified the debtor that he credited him with the amount of such check on account, not recognizing it as a full settlement of the account as indicated by the check.

      Held, that although the amount due on the account might be larger than the amount of the check, yet the creditor by using the check accepted it in full payment of the claim in dispute between the parties.
    Appeal by the plaintiff, Thomas J. Reynolds, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the cleric of the county of Monroe on the 14th of May, 1894, upon the report of a referee dismissing the plaintiff’s complaint upon the merits and allowing a counterclaim in favor of the defendant.

      F. A. Wash, for the appellant.

      H. M. Hill, for the respondent.
   Dwight, P. J.:

The sole question made on this appeal relates to the allowance of a counterclaim of twenty-seven dollars and seventy-five cents, and whether that counterclaim was properly allowed depends upon the question whether a certain payment by check, made by the plaintiff to the defendant was, or was not, in full of a small balance of indebtedness concededly due from the former to the latter, the amount of which was unliquidated.

The referee finds the amount of that indebtedness on the 1st day of January, 1889, to have been $106.43. On the ninth day of February the plaintiff sent to the defendant a statement of the account exhibiting a balance due from him of eighty-five dollars and thirty-seven cents, and inclosed his cheek for that amount in the following terms:

“No. 11,348. Rochester, N. Y., Feb. 9, 1889.
“Banking House oe S. G. Woodruff, Livonia, N. Y.
“ Pay to the order of Empire Lumber Company, Lt’d, in full, eighty-five and -£¡\ dollars.
“ $85^. T. J. REYNOLDS.”

The check was received by the defendant in due course of mail, and on the eleventh day of February the defendant wrote the plaintiff as follows:

“ Ridgeway, Pa., FeVy 11th, 1889.
“ T. J. Reynolds, Esq.:
“'Dr. Sir- — Yours of the 9th, enclosing check for $85.37, purporting to be in full for acc. between us, reed. In reply we cannot accept it in that way, as you owe us $39.45 yet to balance acc. to Sep’t. 19th, 1888, and on receipt of same, in addition to check of $85.37 rec’d, will balance acc. and receipt to you.
“Truly,
“EMPIRE LUMBER CO., .
“A. M. McClain, Treas.”

On the eighteenth day of the same month the defendant again wrote the plaintiff, inclosing this time its statement of the account, exhibiting a balance due defendant to date of $142.20, after crediting the check of $85.37, and again declining to accept the check in full settlement of the same. To this letter the plaintiff replied, on the twenty-third of the same month, pointing out what he asserted were errors in the defendant’s statement of the account, and insisting upon the correctness of his own.

There seems to have been no further reference to the check in the correspondence of the parties until the ninth day of September, when the defendant wrote the plaintiff as follows :

“ Ridgeway, Pa., Sept. 9th, 1889.
“ T. J. Reynolds, Esq.:
“ Dear Sir — Referring to your last, Eeb’y 9th, enclosing check $85.37, purporting to be in full, would say we to-day credit the. check on acc. and use same; we cannot recognize it as a full settlement of acc. as the check indicates.
“Truly, etc.,
“EMPIRE LUMBER CO., LT’D.”

Upon these proofs the referee found, as matters of fact, “ that on the 9th day of February, 1889, the plaintiff paid defendant upon account the sum of $85.37,” to which finding the plaintiff excepted. The plaintiff also excepted to the refusal of the referee to find, on request, that the payment of $85.37 was in full of any claim of the defendant against the plaintiff.

We think the two exceptions were well taken. The principles involved and the rule applicable to cases of this character have been recently discussed by this court and the Court of Appeals in two cases in which the facts were soinewhat different and the results different, accordingly. (See Fuller v. Kemp, 138 N. Y. 231, and Nassoiy v. Tomlinson, 65 Hun, 491.) The discussion, pro and con, in those eases was so full that we do not deem it necessary to ■repeat it in this case. "We think we need only say that we find the present case to conform in its essential facts to the former of these eases, in which it was held that the payment there made and accepted was to be regarded as a payment in full of the claim in dispute between the parties. And so we hold in. this case.

It follows that the judgment appealed from must be reversed unless the defendant consent to its modification by striking out the recovery on the counterclaim.

Lewis and Bradley, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event, unless the defendant within twenty days stipulates to deduct the amount of the counterclaim, twenty-seven dollars and seventy-five cents, from the judgment. In that event the judgment be so modified, and, as so modified, affirmed, without costs of this appeal to either party.


author: Bradley, J.:

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    In the Matter of the Widening of South St. Paul Street on the West Side, North of and Adjoining Court Street, in the City of Rochester, N. Y. Alanson Douglas Miller and Others, Appellants; City of Rochester, Respondent.

      Award of commissioners under chapter 14 of 1880, as amended by cha/ptm' 190 of 1892 — powers of the County Court — cman’d modified on appeal to the Supreme Court — a direction that the taxes be deducted, stricken out.

    The fact that chapter 190 oí the Laws of 1892 provides that certain commissioners of appraisal of property in proceedings to widen a street shall be appointed by the County Court, to which court power is given by the act to amend defects or informalities in the proceeding and make all necessary orders and give proper directions to carry into efirect the object and intent of the act, does not authorize the County Court to set aside an appraisal and report because of error in the result.
    The statutory method of review in such case is by appeal from the report, within thirty days after its confirmation, to the Supreme Court, which will consider and examine fill questions of law or fact, and confirm or annul the report as it shall deem just.

      Tlic award oí commissioners oí appraisal appointed under the provisions oí chapter 14 oí the Laws oí 1880, as amended by chapter 190 of the Laws of 1892, wherein one gross award is made for two distinct parcels of property, and the amount of “all taxes and assessments which may he a lien upon the lands ” is to he deducted from the award, will he modified, upon a review of the report of such commissioners, hy striking therefrom the provision in regard to the deduction of the amount of the taxes from the amount of the award, if it appears that the tax lien was not considered in the appraisal, any further than to make such provision in the report.
    Appeal by Alanson Douglas Miller and. others from an order of the Monroe County Court, entered in tlie office of the clerk of the county of Monroe on the 12th day of February, 1895, denying the appellant’s motion to vacate and set aside the report of commissioners of appraisal in the matter of widening South St. Paul "street in the city of Rochester.

      Joseph W. Taylor, for the appellants.

      A. J. Bodenbeck, for the respondent.
   Bradley, J.:

The commissioners, in the proceedings for appraisal, awarded to the appellants for the land in question $1,800, deducting therefrom “ all taxes and assessments which may be a lien upon the lands.” The objection is to the charge so made of taxes upon the award. Upon the hearing before the commissioners there was no evidence of any tax liens upon the property, nor does anything to that effect appear in the papers here upon the appeal from the commissioners’ report. But in the affidavits upon which the motion to set aside their report was made, and which constitute a portion of the papers on the other appeal, it appears that there is a tax lien of $1,000 upon a portion of the land in question and other lands, and that on the part of the city it is required that the full amount of it be deducted from the award. The motion in the County Court was not considered on the merits, but was denied for the reason there given of want of power to entertain it.

The city charter provides that the commissioners be appointed by the County Court, and to it is given certain powers to amend defects or informalities in the proceedings, to make all necessary orders and give proper directions to carry into effect the object and intent of the act, but this does not include power to that court to set aside the appraisal and report for error in its result. (Laws 1892, chap. 190, §16.) ,

The commissioners are required to report to the common council, and it is vested with the power of confirmation of the report. (Laws 1880, chap. 14, § 178, as amended by Laws 1892, chap. 190, § 18.)

The statutory method of review is by appeal from the report, within thirty days after its confirmation, to the Supreme Court (Laws 1880, chap. 14, § 183), and the court shall thereupon consider the appeal and examine all questions of law or fact and confirm or annul the report as it- shall deem just. (Laws 1892, chap. 190, § '21.)

It is urged that the motion in the present case was analogous to a like motion to set aside a report of commissioners under the General Railroad Act, and in support of that view is cited Matter of N. Y. C. & H. R. R. R. Co. (64 N. Y. 60).

But it may be observed that under that statute the commissioners’ report is made to the court, and the matter of its confirmation is for its determination. The court, in that case, is not only given jurisdiction over the appointment of the commissioners and their proceedings preliminary to their award, but their report is made the subject of consideration by the court. In the present case there is no charge of miscbnduct of the commissioners. The motion was founded Upon an alleged error merely.

The premises in question are described in the commissioners’ report as two adjoining parcels, to one of which the appellants have the legal title, and in the other they have an estate for years under a lease made by the city of Rochester, which lease will expire in April, 1969. The award was for the whole as an entirety. And it is said that the tax referred to is a lien upon only one of those parcels, and that such ’parcel constitutes but a very small portion of the land on which it is a lien. We think that the County .Court had no power to entertain a motion to set aside the report on the merits, and, therefore, it was properly disposed of by that court. The facts above mentioned in relation to the tax lien do .not'appear in the papers presented by the appeal from the commissioners’ report. The only question here is whether they properly inserted in it the provision to the effect that all taxes which were a lien upon the premises were to be deducted from the award.

It is said by the respondent’s counsel that without regard to the provision to that effect in the report the amount of the tax lien upon the premises is to be deducted from the amount of the award. That may be so, and in that view' there would be no difficulty about it if the tax lien covered only those premises. But suppose that it is only upon a small portion, or a distinct parcel of them, and extended over other lands, how are they to be .apportioned so as to give the owner of the lands taken the benefit of the award, less the part of the tax properly chargeable upon it ? Should the entire amount be deducted from his award and he be compelled to seek his remedy against the persons wdio own the other premises upon which the portion or the greater part of the tax is a lien, or should that be a matter to be adjusted by affirmative action on the part of the city ? Our attention was called to no provision of the charter or to any other statute on the subject. The tax lien, so far as appears, was not considered. in the proceeding any further than to make the provision in the report as before mentioned. Here were lands described in two parcels. Assuming that the tax lien was upon one of them only (and on that with other lands), it would seem to be a hardship to include the damages for taking both parcels in one award and make it subject to the amount of the entire tax lien, and the injustice of it would be more palpable' if the parcel upon which the tax lien is was of but little value as compared with that of the other. Such might be the consequence when one only of two distinct parcels is subject to the tax lien and the award, a gross sum for both. The statute does not seem to render it necessary to subject the landowner to such embarrassment. The consequences of including the taking of both parcels in a single award is not, upon the record, necessarily the" subject of consideration on this review. So far as appears the commissioners did not deem it necessary to inquire whether or not any tax lien existed on the premises. If there is any, the disposition of it had better be left for such application and adjustment as the rights of the parties may require without direction in the report of the commissioners.

It does not seem that a modification of it by striking such provision from the report will be unduly prejudicial to the city. The order of the County Court should be affirmed, and the report of the commissioners should be annulled unless the respondent stipulates to strike from the report the provision for the deduction of tax liens from the award, and in that event the report be so modified, and as modified confirmed.

Lewis and "Ward, JJ., concurred.

The order of the County Court affirmed, with ten dollars costs and disbursements; the report of the commissioners appealed from annulled, unless the respondent within twenty days stipulates to strike from the report the provision for the deduction of tax liens from the award, and in that event the report be so modified, and as modified confirmed.


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    Mart J. Linneman, Respondent, v. Charles E. Bieber and Another, Appellants, Impleaded with Others.

      Mechanics’ lien — the taking and assignment of a note for the claim, — right to thereafter' file a lien— the fraudulent intent of a grantor shifts the burden of proof to the gremtee — credibility of a party.

    The right to make a mechanics’ lien available is not lost or defeated by the creditor’s taking a note payable by the debtor before the time to enforce the lien by action has expired.
    A note taken by a creditor from his debtor and thereafter assigned by the creditor bj indorsement before the maturity thereof, which was not given in satisfaction of the claim, does not prevent the filing by the creditor of a mechanics’ lien and the assignment thereof to and its enforcement by the holder of the note.
    In an action brought to set aside a conveyance of real estate, where the plaintiff has shown the fraudulent intention of the grantor, the burden is upon the purchaser to relieve herself from the effect of the fraudulent intent of her grantor by proving that she was a purchaser for a valuable consideration.
    The credibility of the testimony of a party to an action, given upon the trial thereof, is a matter for the consideration of the referee before whom the action is tried.
    Appeal by tlie defendants, Charles E. Bieber and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of June, 1894, upon the report of a referee directing the foreclosure and sale of certain premises under a mechanics’ lien.

      Edward O. Randall, for the appellants.

      Stone c& Stone, for the respondent.
   Bradley, J.:

The purpose of the action was to foreclose a mechanics’ lien on certain premises on Michigan street in the city of Buffalo for materials and work employed there pursuant to contract with Charles E. Biebei’, and to set aside as fraudulent a conveyance of the premises made by him to his wife, the defendant Mary J. Bieber.

The contract Avitli Mr. Bieber to furnish the materials and erect the building was made and performed by John F. Linneman, and the price agreed upon therefor was $3,508.

In the outset it was necessary to make provision for funds to enable Bieber to complete the payment for the lot and to make payment to Linneman. This was done by a $6,000 mortgage made by Bieber and wife to the German Bank. Thereupon, with the proceeds of a note made by one of them, indorsed by the other and Linneman, and discounted by the bank, the land was paid for. After-wards, on May 12, 1893, Bieber’s note to Linneman for $1,000 was discounted by the bank and the proceeds placed to his credit, and on the first of June following, another note from Bieber to him for $2,000 Avas discounted at the same bank and the proceeds placed to his credit. So far there is no controversy about the facts. The notice of lien Avas filed October 10, 1893. The referee found that •there Avas then due to Linneman for work and materials done and furnished by him upon that lot, $1,256.08. This is disputed by the defendants, and they insist that the payments before mentioned reduced the amount due Linneman to $508. And such would be the fact if the contract price included the entire amount of the claim, and if the entire sum of $3,000 was applicable to it. But the referee has found that Linneman did some other work on the lot in removing a building from the front to the rear of it, and that such sendees were worth $123.08. This AAas not within the terms of the contract, but may be deemed to have been necessary to the performance of it, and there is some evidence in support of that finding and the allowance of that sum to Linneman.

The referee found that out of the proceeds of those two notes so placed to his credit Linneman paid to and for Bieber $625, leaving a balance of $1,256.08 due him for what he did upon the Michigan street lot. This conclusion of fact, although not required, was permitted by the evidence. And that is here treated as the situation when the work was completed. There were some other matters of account between Linneman and Bieber. And on July 28,1893, the latter'gave Linneman his note of that date for $1,700, payable to his order six months after its date. Linneman then gave his receipt to Bieber to the effect that he had received that amount on account of settlement of all matters open between them, including full settlement of all sums due, or to grow due, for work and materials on the Michigan street store, with the stipulation added that he would hold Bieber harmless in respect to any liens which might be filed against that store, and satisfy and discharge any lien that should be filed against it, and then followed the statement that this payment is not in full settlement of the accounts between us; said accounts remaining to be adjusted finally.” Immediately after this note was given Linneman indorsed and transferred it to his wife, the plaintiff.

It is urged that this note was made and taken as payment and in satisfaction of the claim for work, etc., on the Michigan street lot. There is some force in that contention in view of what appears in the receipt, and of the fact that the work on that lot was not then entirely completed. But the referee found that the note was not given or accepted as payment of that amount, and the circumstances go in support of that conclusion.

The right to make a mechanic’s lien available is not lost or defeated by taking a note payable by the debtor before the time to enforce the lien by action expires. (Miller v. Moore, 1 E. D. Smith, 741; Althouse v. Warren, 2 id. 657.) As the note was held by the plaintiff at the time the notice of lien was filed by John F. Linneman it is contended that no lien was effectually created. It would have been futile if the note had been taken in satisfaction of the debt, and such would have been the effect if he had then ceased to have any relation to the note, because he then would have no interest to protect. Nor could lie enforce tlie lien without relieving the debtor from liability arising from the making of the note and upon it. (Teaz v. Chrystie, 2 E. D. Smith, 621; 2 Abb. Pr. 109.) Mr. Linneman was contingently liable as indorser of the note, having the right at its maturity on default in payment by the maker to take up and hold it against him.

The agreement before mentioned, to indemnify Bieber against liens and to discharge any which should be put upon the property, evidently had relation only to the assertion of liens by others than the contractor Linneman, as the note to him was intended to cover the full amount remaining unpaid for work and materials which he undertook to supply to complete the building upon that lot. Mr. Limjeman did not repossess himself of the note, and until he did so he could not institute proceedings in his name to enforce the lien. But before the note became due, and on January 8, 1894, he assigned to the plaintiff who held the note the mechanics’ lien which he had created by filing the notice in October, 1893, the cause of action on which it was founded and all moneys derivable from it. This lien was security for the payment of the debt and for his protection against liability to pay the note, which relation contingently existed when the lien was filed. Our attention is called to no reason why he could not transfer it with the claim upon which it was founded, as was done by him.

And afterwards, after the maturity of the note and within due time, the plaintiff brought this action to foreclose the lien. Upon the trial the note was delivered to the defendant Bieber, by whom it was made.

By the action the plaintiff seeks priority over a deed of conveyance of the premises made by the defendant Bieber to the defendant Bieber, his wife, on July 10, 1893, on the alleged ground that it was made in fraud of the creditors of the grantor. No question as to the remedy on such ground is specifically raised. And such relief is here treated as available in an action to foreclose a mechanic’s lien. (Gross v. Daly, 5 Daly, 540; Tisdale v. Moore, 8 Hun, 19.)

The conveyance was recorded eighteen days after it bears date, and on the same day that Bieber made his note to Linneman.

"Whether or not the conveyance by Bieber to his wife was made with the intent to delay or defraud his creditors, was upon the evideuce a question of fact. Tlie business relations between him and his wife were the subject of the testimony of Mr. Bieber, which was to tlie effect that the conveyance was made on account of his indebtedness to her.

The referee, however, found that the deed was not made to her in good faith, but for the purpose of hindering'and delaying Linn'eman in the collection of the amount due or to become due 011 liis contract for work, etc., and was, therefore, void as to him and the plaintiff.

It is urged upon the part of the defendants that as the finding of the referee does not, impute to Mrs. Bieber any want of good faith in taking the conveyance,- or any failure of consideration for its support, the conclusion that the deed was ineffectual as against Linneman, was not warranted. The fact that a conveyance of property is made with intent on the part of the grantor to defraud his creditors, does not as to them defeat the title of the grantee if he is a purchaser in good faith for a valuable consideration. (Zoeller v. Riley, 100 N. Y. 102.)

The statute, however, provides, that a. conveyance made, with intent to hinder, delay or defraud creditors shall .be void... : (2 R. 137, § 1.) But that such provision shall not be construed in any manner to impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of'the fraudulent intent of his grantor. (Id. § 5.)

The fact as found by the referee is all that was requisite within the statute to render the conveyance invalid as against the creditor. The burden was upon the purchaser to relieve herself from the effect of the fraudulent intent of her grantor by proving that she was a purchaser for a valuable consideration. (Starin v. Kelly, 88 N. Y. 418.)

The referee did not find that she was a purchaser for a valuable consideration or that she did not have previous notice of the fraudulent intent of her husband. Mrs. Bieber was not a witness on the trial. The relation of her husband to the controversy rendered the credibility of his testimony a matter for the consideration of the referee. •

In view of that fact, and upon all the evidence bearing on the subject, the conclusion of the referee seems to have been permitted and supported.

Other questions raised require no expression of consideration. There was no error to the prejudice of the defendants in the rulings at the trial or in the findings or refusals to find as requested.

The judgment should be affirmed.

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

J udgment affirmed, with costs.


text:
    Mary E. Riddell, Appellant, v. Le Roy Riddell, Respondent, Impleaded, etc.

      JEtrnl estate of a copartnership —judges charge to the fwry in an action for dower, as to the effect of a release thereof.

    So long as the affairs of a co-partnership remain unsettled, its real estate, like all other assets of the firm, is equitably pledged to the payment of the claims of its creditors and'liable to be absorbed and disposed of in the process of liquidating the firm debts, and in satisfying the claims of the respective partners as against each other.
    Widows are not dowable in real estate so situated.
    In an action of ejectment brought by a widow to recover her dower in the real estate left by her husband, the defendant offered in evidence a deed purporting to have been executed and acknowledged by the plaintiff, whereby the plaintiff released her dower right in the premises in question. The plaintiff admitted that the signature to the deed was hers, but denied that she had ever acknowledged or delivered the same.
    The court, in submitting to the jury the question as to whether the plaintiff had executed, acknowledged and delivered the deed in question, charged that it was immaterial for the purposes of the action whether the plaintiff understood the import of the deed or not, the action not being based upon any theory of fraud or deceit in procuring the deed, but being a strict legal action to enforce the plaintiff’s legal rights, and that if she signed the deed, she could not in such an action escape the consequences on the ground that she did not know its contents.

      IVeld, that, as there was neither allegation nor proof upon which the plaintiff could avoid the deed, if it had been in fact executed by her, the instruction was correct.
    Appeal by the plaintiff, Mary E. Riddell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Steuben on the 26th day of March, 1894, upon the verdict of a jury rendered after a trial at the Steuben Circuit dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 26th day of March, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Eli Soule, for the appellant.

      DeMerville Page, for the respondent.
   Dwight, P. J.:

The action was ejectment for dower in seven distinct parcels of land of which the complaint alleged that George Riddell, the husband of the plaintiff, died seized.

In respect to three of the parcels the answer averred that they were partnership property bought by and held for the partnership uses of the firm of George Riddell & Co., which firm consisted of the deceased, George Riddell, and the defendant Le Roy Riddell; that the business and affairs of the co-partnership had never been settled and that it was still indebted to divers persons to a large amount. These facts were established by uncontradicted evidence, and the court thereupon dismissed the complaint. as to the three parcels of land so situated.

This disposition was undoubtedly correct. (Fairchild v. Fairchild, 64 N. Y. 471; Greenwood v. Marvin, 111 id. 423.) “ So long as the partnership affairs remain unsettled, like all other assets of the firm, its real estate is equitably pledged to creditors and liable to be absorbed and disposed of in the process of liquidating the firm debts and satisfying th'é claims of the respective partners as against each other.” (Per Ruger, Ch. J., in the case last cited.) "Widows arc not dowable in real estate so situated. (Sage v. Sherman, 2 N. Y. 417.)

Some of. the evidence in support of the above-mentioned averments of the answer was objected to by the plaintiff, but they were sufficiently 'supported by other evidence of unquestioned competency and equally uncontradicted.

In respect to the remaining four parcels-of land involved in the action the defense was made that the plaintiff had released her dower therein to the defendant by her deed duly executed, acknowledged and delivered to him during the lifetime of her husband. In support of this defense the defendant produced a deed bearing what purported'to be the signature of the plaintiff and a certificate of her acknowledgment in due form, signed by a justice of the peace of the' county. The. defendant testified that on the date of the deed and its acknowledgment it was executed, acknowledged and delivered to him by the plaintiff. The plaintiff was at first disposed to deny that she had executed such a deed, but, upon being shown the signature, virtually admitted that it was liers, and still denied that she ever acknowledged the deed or delivered it to the defendant. Upon this conflict of evidence ■ — • if it was such ■— the court submitted to the jury the single question whether the plaintiff executed, acknowledged and delivered to the defendant the deed in question; and, in doing so, remarked to the jury, in substance, that it was immaterial, for the purposes of this action, whether the plaintiff understood the import of the deed or not; that the action was not based upon, any theory of fraud or deceit in procuring the deed; that there was no allegation of. fraud -or deceit in the case; that the action A^as a strict legal action to enforce the plaintiff’s legal rights, and that if she signed this deed she cannot escape the consequences, in this action, on the ground that she did not know its contents. To the charge, including this instruction, there was but a single exception, which presents the only remaining question in the case. The exception was “ to the charge that it made no difference whether the plaintiff knew it was a deed.”

The instruction as given was, manifestly, correct. There Avas neither allegation nor proof upon which the plaintiff could avoid the deed if it Avas in fact executed by her. Neither Avas there any offer of proof or request to charge which propounded such a cause of action on the part of the plaintiff. The only question put to the plaintiff which even remotely suggested such a proposition was when she had virtually admitted her signature, she Avas asked : “ If you ever did sign this deed did you know what you were signing ? ” The question was objected to and, the objection being sustained, no exception was taken to the ruling. There Avas, in short, neither allegation, proof, nor offer of proof which tended to support the contention made on this appeal — and apparently on the motion for a new trial — that the deed of the plaintiff might be avoided for fraud or any other cause if actually executed and delivered by her.

We find no exception in the case which points to error in the trial or disposition of the case, and conclude that the judgment and order appealed from must be affirmed.

Lewis and Bradley, <TJ., concurred.

Judgment and order affirmed.


author: Ward, J.:

text:
    Charles S. Ellis, Respondent, v. Mary E. Filon and Others, as Executors, etc., of Michael Filon, Deceased, Appellants.

      Claims against a decedent’s estate — evidence received by a referee not assumed to have been deemed immaterial — evidence inadmissible under Code of Civil Procedure, § 829 — costs under the Code of Civil Procedure, §§ 1885, 1836 and 2718.
    Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon very satisfactory proof.
    It cannot be assumed, upon the review of the decision of a referee before whom a disputed claim against the estate of a decedent was tried, that any of the evidence received upon the trial was deemed by him to be immaterial.
    "Where the'mere fact of a conversation between a claimant against the estate of a decedent and the deceased is a material fact to be proved upon the trial of the disputed claim, the proof of such fact by the testimony of the claimant is inadmissible under the provisions of section 829 of the Code of Civil Procedure. "Where a referee, to w'hom a disputed claim against the estate of a decedent was referred, finds as a matter of fact that payment of the claim had been unreasonably resisted by the executors or administrators of such decedent, such finding justifies his awarding costs to the complainant under sections 1835, 1836 and 2718 of the Code of Civil Procedure.
    Appeal by the defendant, Mary E. Filón and others, as executors, etc., of Michael Filón, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 12th day of September, 1894, upon the report of a referee.

      Gassius G. Davy, for the appellants.

      Elbridge L. Adams, for the respondent.
   Ward, J.:

This appeal comes here under section 2718 of the Code as amended in 1898. The plaintiff, within the six months allowed for presenting claims against the estate of the deceased, presented a claim of $300 for the plans prepared by the plaintiff, at the request of the deceased, for the construction of a building in Rochester.

The claim was rejected by the appellants and an order was made referring it to a referee, under this provision of the Code, who heard the evidence and reported in favor of the plaintiff for the amount of his claim, upon which judgment was perfected, the referee awarding costs to the plaintiff. Upon the trial the plaintiff was sworn in his own behalf. lie testified that he was an architect, doing business at Rochester; that he drew the plans; that he did not have them'; that the last he saw of them they were in the office with Mr. Filón (the deceased), in June, 1892 ; that the plans were reasonably worth one per cent of the estimated cost of the building which he specified. Then ho stated as follows: I made the preliminary sketches; Mr. Putnam, who was with me at the time, completed the details; no one else in the office except myself and Mr. Putnam, tó my knowledge, worked on these plans; I had a conversation with Mr. Filón about these plans; it was either in May or June, 1892; I had more than one conversation; several; three or four I should think. Q. Did you draw these plans without being requested to do so by any one ? [Objected to (by defendants) as calling for a transaction or communication between the witness and Michael Filón, and as incompetent under section 829 of the Code, it appearing that the witness is interested in the event of the action, and also that the question is improper in form and leading. Overruled, and exception.] A. No, sir. [Defendants’ counsel moves to strike out the answer, as incompetent, under section 829 of the Code. Motion denied, and exception.]”

The witness further stated that none of his conversations with Mr. Filón were in the presence of any other person except in one instance. It was after this conceded that Michael Filón died in July, 1893. The only other witness was Mrs. Putnam, the wife of the person who worked with the plaintiff on the plans. She says that she saw them at her house, and on the bottom of the plans there appeared the words “ sketch for Mr. Michael Filón.” The plaintiff gave no other evidence except the will of the deceased, which was objected to, the 20th clause of which provided that the executors ■ were authorized and directed to erect on Main street in Rochester a building costing not less than $100,000, to be known as the “ Eilon Block.”

The plaintiff rested, but after resting resumed the case, moved to amend his claim to conform to the proof, thus opening his case. This was denied, and the defendants then moved to strike out evidence on the ground that it involved a personal transaction with the deceased. First. The plaintiff’s testimony as to the value of the services. No objection appears to be made to this, but the motion was denied. Defendants excepted. Second. What the witness Ellis testified to in reference to his having conversations with deceased about the plans. Plaintiff objected to this on the ground that no objection was made at the time, and the motion was made after the close of the plaintiff’s case. This was denied, and the defendants excepted.

The grounds of the defendants’ appeal are: Fi/rst. That the evidence, as a whole, fails to show any cause of action against the defendants, or any request on the part of the deceased to the plaintiff to make the plans, or facts from which such request might be inferred. And, second, that the referee erred in receiving evidence forbidden by section 829, and also in not striking out such .evidence. It clearly appears that much of the plaintiff’s evidence comes within the spirit if not the letter of the prohibition of section 829, and if this judgment is sustained at all it must be upon such evidence.

Erom the opinion of the referee and the proceedings on the trial it is evident that the plaintiff was making a constant struggle to maintain .his case by proving his personal transactions with the deceased, and he claims upon this appeal that enough of this forbidden evidence was obtained without proper objection to sustain the referee’s report. “ Claims Avithheld during the life of an alleged debtor and sought to be enforced when death has silenced his knowledge and explanation are always to be carefully scrutinized, and admitted only upon very satisfactory proof.” (Kearney v. McKeon et al., 85 N. Y. 139, 140; Ulrich v. Ulrich, 17 N. Y. Supp. 721, and cases cited.)

The referee finds that this Avork was done for the deceased by the plaintiff and at the request of the deceased and upon his promise to pay.

We are to assume that the referee in reaching these conclusions attached importance to all the evidence given. At least, we cannot say that any of the evidence was deemed by him to be immaterial. The evidence that was objected to in time was the question whether the plaintiff would have drawn the plans without being requested to do so by any one. This, in connection with the evidence that had just before that been given, that the plaintiff had had conversations with the deceased “ about these flans,” was intended to leave the inference to be conveyed by the witness that that request came from the deceased.

The respondent claims that the proof of the fact of having had conversations, without showing what they were, was competent, and cites Hier v. Grant (47 N. Y. 278). That case does not aid the respondent, as appears by the syllabus that: The simple proof of the fact that a conversation was had with a deceased person without proof of the conversation itself, is not obnoxious to * * * section 399 (old Code) unless it may be in a case where the mere fact of a conversation is a material thing to be proved.”

It was very material for the plaintiff to show in some manner that the deceased recognized the services that the plaintiff claimed to be rendering him, and when, after stating that lie had conversations with the deceased about the plans, he then adds, in effect, that he 'would not have made the plans without being requested by some one to do it, the evidence becomes important.

Standing by itself it is a mere conclusion of the plaintiff’s mind, and is incompetent, and should have been rejected for that reason. In any aspect of the case the reception of this evidence was fatal.

The motion to strike out the, evidence as to these conversations should have prevailed; and while, perhaps, it was discretionary with the referee to have denied this motion, he should not have done so.

The referee seemed to rely upon what the plaintiff testified to, that the plans were last seen by him in the.office of the deceased.

At no time does it appear that the deceased ever saw them; how they got there does not appear. If they were delivered to the 'deceased by the plaintiff, or through his agency, it was a personal •transaction excluded by the Code, otherwise, the evidence is of no importance as an admission by the deceased, or as an acceptance of the plans If these plans were simply a “ sketch ” as they were marked and submitted to the deceased for further examination or consideration, then the evidence does not aid the respondent.

There was no motion to strike this evidence from the case, and it is there, although probably incompetent, with other incompetent evidence, for what it is worth, and we are confronted with the proposition that, in the face of the policy of the law as indicated in section 829, we must sustain this judgment upon this incompetent evidence.

But assuming that full force is to be given to this evidence as though it were competent, we do not think tile findings of the referee are sustained by the evidence as to the plaintiff’s employment by the deceased, especially when judged with the scrutiny that ■such cases demand.

Objection is also made to the referee’s direction that the plaintiff recover costs. We see no objection to this if the judgment could •otherwise be sustained.' The referee found as a matter of fact that the payment of the claim has been unreasonably resisted by the •defendants; this finding justified his conclusions as to the costs under sections 2Y18, 1835 and 1836 of the Code of Civil Procedure.

The judgment must be reversed, and a new trial ordered before •another referee, the costs to abide event.

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

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


text:
    William Guilford, Plaintiff, v. Morris C. Mulkin, Defendant.

      Payment for property, by the giving of the venders note— the oi’iginal obligation remains until the note is paid— effect of the direction of a verdict.

    'The giving of a purchaser’s promissory note, for the purchase price of property purchased, at the time of the sale, is not a payment therefor.
    . If credit is given upon a sale, which is evidenced by the purchaser’s promissory note, the seller’s remedy is suspended until after the note becomes due.
    'The note is but a written security for the payment of the debt and only extinguishes the debt upon the payment of the note.
    The debt is not merged in the note, and if the note is not paid when due the security is dishonored and the suspension of time of payment is ended, the debt still remain's and the creditor can sue on the original obligation.

      Where a debtor claims that bis written promise to pay has accomplished the payment, he must show that his promise has been performed.
    Where both parties to an action ask for the direction of a verdict, the court, in directing- the verdict in favor of one of the parties, occupies the. place of the jury and determines all the questions of fact in the case in favor of the successful party.
    Motion by the defendant, Morris C. Mulkin, for a new trial on a case containing exceptions, ordered tobe heard at the General Term in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Allegany Circuit on the 3d day of January, 1894.

      8. McArthur Norton, for the plaintiff.

      Rufus Scott, for the defendant.
   Ward, J.:

This was an action tried at the Allegany Circuit in January, 1894.

The plaintiff’s complaint alleged the sale and delivery by him to the defendant on the 13th of September, 1886, of a pair of colts of the value and agreed price of $255, to be paid for in three months, with interest.; that the same had not been paid, and plaintiff demanded judgment.

The answer of the defendant contained no general denial, but alleged that at the time of the sale of the colts the defendant made and delivered to the plaintiff, in satisfaction of the purchase price of the colts, the defendant’s promissory note, whereby he promised to pay in three months the $255, with interest, and denied that he had agreed to pay for the colts in any other way than by the note.

Upon the trial the plaintiff brought the note into court, and offered to surrender it to the defendant and have it canceled. No evidence was given on behalf of the plaintiff, but the defendant testified in his own behalf substantially that at the time he bought the colts he gave the note set forth in the answer, and that it had not been paid. It did not appear that the plaintiff had negotiated the note. The plaintiff asked for the direction of a verdict for himself, and the defendant moved for the direction of a verdict for the defendant. Neither party asked to go to the jury. Ho agreement was proved that the plaintiff was to take the note in payment for the colts. The court directed a verdict for the plaintiff.

The defendant alleges that error was committed by the trial court because the only contract of payment made by the defendant was to pay the note, and that the action should have been brought on the note, which was the plaintiff’s only remedy.

This conténtion cannot be sustained. The giving of the purchaser’s promissory note for the price of the property sold, at the time of the sale, is not a payment.

If credit is given upon the sale, which is evidenced by the promissory note, the seller’s remedy is suspended until the note becomes due.

The note is but a written security for the debt, and only extinguishes it upon payment. The debt is not merged in the note. If the note is not paid when due the security is dishonored, and the suspended time of payment ended, and the debt still remains and the creditor can sue on the original obligation. These considerations apply where, as in this case, the security is not negotiated by the creditor. If the debtor claims that his written promise to pay accomplished the payment, he must show that his promise has been performed. He cannot pay his debts with a broken promise. Whatever may be the rule in other States, or the views expressed by elementary writers upon this subject, the foregoing undoubtedly gives the law in this State. (Jagger Iron Co. v. Walker, 76 N. Y. 521, 524, and cases cited ; Edwards on Bills and Notes [2d ed.], 192 and note; Hughes v. Wheeler, 8 Cow. 77; Hill v. Beebe, 13 N. Y. 556; Muldon v. Whitlock, 1 Cow. 290; Combs & Shute v. Batemam, 10 Barb. 573.)

Both parties having asked for a direction of a verdict, the court determined any question of fact in the case, upon the evidence, in the place of the jury; and, if there were any questions of fact, they have been determined against the defendant, who was the sole witness in his own behalf, and such decision is conclusive here. ■

The motion for a new trial should be denied, with costs to be paid by the defendant, and the plaintiff have judgment on the verdict.

Dwight, P. L, Lewis and Bradley, JJ., concurred.

Defendant’s motion for a new trial denied and judgment directed on the verdict for the plaintiff.