Volume 37 — New York Supplement

Action by Paul R. G-. Horst and others against D. G-. Yuengling Brewing Company. From an order vacating an order directing defendant’s president to appear before a referee for examination before trial, and to produce certain books and papers of defendant, plaintiffs appeal. Reversed.

<p>Application by the St. Lawrence State Hospital for an order against Frederick Fowler, as committee of Christian Holsworth, insane. Denied.</p>

<p>Appeal from justice court.</p> <p>Action by Lizzie E. Freeborn against Coburn Badgley. Plaintiff was nonsuited, and appeals. Reversed.</p>

<p>1. Judgment against Infants—Failure to Appoint Guardian ad Litem.</p> <p>A judgment rendered in the justice court against an infant defendant for whom no guardian ad litem has been appointed will be reversed on appeal to the county court, though defendant appeared on return day of the summons and joined issue, but did not raise the objection of infancy.</p> <p>2. Same—Mode of Raising Question—Appeal.</p> <p>The objection that a judgment against an infant was rendered without appointing a guardian ad litem may be raised on appeal from the judgment.</p>

<p>1. Conditional Sale—Fixtures—Rights op Mortgagee.</p> <p>Under Laws 1884. c. 315, § 1, declaring that a conditional sale shall be void as to bona fide mortgagees unless the contract of sale is filed, a furnace placed in a dwelling house under a conditional contract of sale to the mortgagor passes under the mortgage, where the contract of sale was not filed.</p> <p>2. Same—Bona Fide Mortgagee.</p> <p>Where a mortgage is given for a pre-existing debt without any new consideration, the mortgagee is not within Laws 1884, c. 315, § 1, declaring conditional sales void as to mortgagees in good faith unless the contract of sale was filed.</p>

Action by Frederick Bosworth against the Standard Oil Company of New York for personal injuries. From an order setting aside a verdict of $8,000 for plaintiff unless he would stipulate to reduce it to $5,000, both parties appeal. Affirmed.

Action by John Raines against the New York Press Company, Limited, and another, for libel. From an order refusing to strikeout part of the complaint, defendants appeal. Modified.

Action by Nettie M. Stillman, as administratrix of Arthur B. Still-man, deceased, against the Brush Electric Light Company of Rochester, for the death of plaintiff’s intestate. From an order requiring plaintiff to furnish a bill of particulars, she appeals. Modified.

Action by Edward ¡R. C. Clarkson and others against the Western Assurance Company to compel defendant to issue a policy in accordance with an accepted application, and to recover the amount of the policy. A verdict was directed for defendant, subject to the opinion of the general term. Verdict set aside, and new trial ordered. ■

Action by Coridon S. Thompson, as executor of the will of Daniel H. Pryor, deceased, against George Chick, for rent. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by the Board of Home Missions of the Presbyterian Church in the United States of America and the Board of Foreign Missions of the Presbyterian Church in the United States against the mayor, aldermen, and commonalty of the city of New York to cancel an assessment for taxation imposed in the year 1894 on plaintiffs’ real estate.

Application by Michael T. Daly, as commissioner of public works of the city of New York, for and on behalf of the mayor, aldermen, and commonalty of the said city, to acquire real estate, under Laws 1893, c. 189, for the purpose of providing sanitary protection to the water supply of said city. From an order granting an allowance to the attorneys of record, the city appeals. Affirmed.

<p>Discoveey—Examination before Trial.</p> <p>In an action to recover royalties under a contract providing for a certain royalty for each week during which defendant should produce a certain libretto, defendant, on examination before trial, may be compelled to disclose the number of representations of the libretto given by him.</p>

Cornelia M. Barber filed a petition praying that the will of Mary E. Barber be admitted to probate, and objections were filed by Frances M. Benson. From a decree admitting the will to probate, ■contestant appeals. Reversed.

Action by Patrick Walsh against James J. Campbell to recover on a contract for building a house, and for extra work done on the same, and to foreclose a mechanic’s lien thereon. From an interlocutory judgment in favor of plaintiff, defendant appeals. Affirmed.

<p>1. Corporations—Several Liability of Stockholder and Trustee—Payment.</p> <p>A judgment rendered against a stockholder for debts of the corporation, under Laws 1848, c. 40, § 10, providing that stockholders in manufacturing corporations shall be individually liable in case the whole amount of capital stock has not been paid in, is satisfied only pro tanto by the compromise and satisfaction of a judgment for the same debt rendered against a trustee of such corporation, under section 15, providing that a trustee shall be liable for the debts of the corporation for making a false report.</p> <p>2. Evidence—Res Gestae.</p> <p>In such action a letter from the trustee on the subject of the compromise is admissible as a part of the transaction.</p> <p>The opinion of Mr. Justice VANN at special term is as follows:</p> <p>I have found as a fact that the defendant Zell R. Hall, on the 25th of February, 1892, conveyed his interest in the Doolittle & Hall Block, situate in the city of Watertown, to his mother, Jeanette G. Hall, with the intention of keeping the same from his creditors and securing to himself the beneficial enjoyment thereof, and that she accepted the conveyance for the purpose of co-operating with him, and aiding him in carrying such intention into effect. It is the not unusual case of a man who, apprehending that a large, and, in his view, unjust, claim was about to be enforced against him, endeavored, by conveying to a relative whom he could trust implicitly, to place his property beyond the reach of creditors, and yet to continue to enjoy it himself. This the law does not tolerate, for the courts cannot classify their judgments, or hold that one is more sacred than another. The effort to avoid the payment of a judgment that is harsh in its effect when enforced, as in the case of one recovered for a penalty or against a surety, is just as fraudulent in the eye of the law as if directed against a claim «for groceries, clothing, or borrowed money. The law does not distinguish between debts by looking at their origin any further than to see that they are valid, but lends its aid to collect all alike from the property of the debtor; and any effort on his part to so dispose of his property as to hinder, delay, or prevent his creditors from reaching it is forbidden by statute, and condemned by the common law. The conveyance in question, therefore, although given to avoid the payment of what was regarded as an inequitable liability, must be set aside, unless the judgments upon which this action is founded have been paid, as alleged in the answer.</p> <p>The judgments in question against Zell R. Hall were recovered in an omnibus action, and are evidenced by the same judgment roll as certain other judgments for different amounts recovered at the same time and by the same plaintiffs against one Henry S. Munson. Before the commencement of this action, the judgments against Mr. Munson were satisfied by the filing of a satisfaction piece in the usual form, and the claim of payment is founded on the common-law rule that, if two persons are jointly or jointly and severally liable for the same debt, an unconditional release of one releases the other also. Lord v. Tiffany, 98 N. Y. 412; Breslin v. Peck, 38 Hun, 623. The judgments against Mr. Munson were not paid in full, but were compromised at about 50 cents on the dollar. They were founded upon the penal liability imposed by section 15 of the general manufacturing act of 1848, for making a.false report as a trustee of an insolvent corporation known as the Gifford Manufacturing Company. Laws 1848, c. 40, § 15; Veeder v. Baker, 83 N. Y. 156. The judgments against Blr. Hall were founded on a liability contractual in its nature, imposed by section 10 of the same act, upon a stockholder holding stock in such a corporation when the whole amount of the capital stock has not been paid in. Corning v. McCullough, 1 N. Y. 471 Flash v. Conn, 109 TJ. S. 371, 3 Sup. Ct. 263. The measure of damages is not the same under both of said sections, as under section 15 it embraces all the debts of the corporation, while under section 10 only debts to the amount of the stock held by each stockholder can be enforced against him. While payment of all the debts of the corporation would relieve from liability under either section, the debts owing to the plaintiffs by said company were not compromised, but only their claims against Blr. Munson for the statutory liability under section 15. Although the existence óf a debt against the corporation was necessary in order to make either Mr. Hall or Mr. Blunson liable, neither was under the same liability, either in nature or extent, as the other, for one was held liable as a stockholder and the other as a director. They were not jointly or severally liable for the same thing. They could have been sued separately, but if sued jointly, under one section only, there could have been a recovery against one only. As was said by the court of appeals in Farnsworth v. Wood, 91 N. Y. 308, 314, “the liability of stockholders under the act of 1848 is a several individual liability of each stockholder, directly to such of the creditors as have complied with the requisite conditions precedent.” Section 10 makes all the officers of the corporation who knowingly sign a false report liable jointly and severally for all the debts of the company contracted while they are stockholders or officers thereof. As there was no recovery against Blr. Hall under this section, he is not liable jointly and severally with Blr. Munson on the judgment recovered against the latter thereunder. Section 15 makes all the stockholders severally liable to the amount of the stock held by each until all the capital is paid in. Blr. Mun-son was not, while Blr. Hall was, held liable under this section. The liability of each, therefore, was several, personal, and exclusive. Neither had any legal interest in the liability of the other, and the release of one did not release the other. The release of Blr. Munson did not release Mr. Hall; but, while this is true, it is also true that the amount paid by Mr. Munson to the plaintiffs in order to obtain his discharge must be applied on their respective debts against the corporation; and the remainder only, with costs, if any, can be enforced against Blr. Hall. It is the indebtedness of the corporation to the respective plaintiffs that is the measure of liability under the statute, and, as that indebtedness is reduced, the liability is reduced in proportion. The distinction between the cause of liability and the measure of liability should not be lost sight of. The cause of liability is a violation of the statute, but the measure of liability is the indebtedness of the corporation, with certain limitations. •</p> <p>There must be judgment for the plaintiffs, upon the basis thus pointed out, and findings arid a decree may be prepared accordingly, and, if not agreed upon as to form, they may be settled before me upon a notice of two days.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Charles Leonard and John H. McCoy against Eberhard Faber. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.</p>

Petition of Benjamin 0. Miller to sell real estate of Helen E. Vick for the payment of debts. From an order denying a motion by the heirs of decedent to dismiss the proceeding, the heirs appeal. Affirmed.

Action by William Seward Webb against William H. Morrison and others to reform a contract and to enforce its specific performance. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.

<p>1. Chattel Mortgages—Bona Fide Mortgagee—Securing Antecedent Debt.</p> <p>" One who takes a mortgage to secure an antecedent debt, though without knowledge of a prior mortgage on the same chattels, is not a mortgagee in good faith within Laws 1833, c. 279, § 1, declaring that a chattel mortgage is void as to subsequent mortgagees in good faith unless it is tiled or immediate possession of the mortgaged chattels is given.</p> <p>2. Same—Failure to File—Subsequent Bona Fide Mortgagee.</p> <p>The operation of the rule that a chattel mortgage is void as to subsequent bona fide mortgagees unless filed cannot be avoided by evidence that at the time it was taken the mortgagor stated that he could not pay the mortgagee’s claim, and would like further time; that he would give security on condition that the time be extended; and that thereupon the mortgage was taken, but the mortgage does not provide for an extension, and the evidence does not disclose any agreement to extend the time of payment for a definite period.</p> <p>The opinion of Mr. Justice PARKER at special term is as follows:</p> <p>The defendants Haverly and Wilcox, on the 30th of November, 1891, took a chattel mortgage from one Thomas Milward to secure an indebtedness that had for some time existed from him to them. Milward was then living in the town of Tompkins, Delaware county, and such mortgage was filed in the town of Walton. No sufficient copy was ever filed in the town of Tompkins. Milward subsequently removed to the town of Walton, and a copy of such mortgage was refiled in that town December 1, 1892, and another copy was refiled in such town November 25, 1898. On the 2d day of June, 1893, the plaintiff, without actual knowledge of the defendants’ mortgage, took from said Milward a chattel mortgage on the same property, to secure the payment of a note which he then held against Milward for the sum of $122.82. Such mortgage was filed on that day in the town of Walton, where Milward then resided, but it was never refiled. On the 18th of July, 1894, the defendants took the property described in such mortgages, and sold it for the satisfaction of their said debt, and the plaintiff brings this action to recover the value of the property so sold.</p> <p>The question is, who has the better right to the mortgaged property? If the plaintiff was a mortgagee in good faith, the defendants’ mortgage was utterly void as against him, because it had never been properly filed. Laws 1833, c. 279, § 1. And the fact that plaintiff's mortgage was not refiled within the year, and that on July 18, 1894, when defendants took the property, neither mortgage was properly on file, does not alter the case. Though defendants were creditors of the mortgagor at that time, they were not such creditors as could avail themselves of plaintiff’s omission to refile Iiis mortgage. They were not armed with any legal process which authorized them to seize the property. Button v. Kathbone, 126 N. Y. 187, 27 N. E. 266. But, the defendants’ mortgage being prior in point of time, it gave them the prior right to the property, unless their omission to file it rendered it void as against plaintiff; and it did not become void under the statute unless plaintiff occupied the position of a subsequent mortgagee in good faith. It appears from his complaint that on or about May 17, 1893, he sold feed to Milward of the value of $122.82, and took his note for that amount, dated on that day, and payable in 90 days. On June 2, 1893, he took the mortgage in question, from which it also appears that the indebtedness was incurred as above stated, and that the mortgage was given to secure it. It seems clear, therefore, that the mortgage was given to secure a precedent debt, and for such reason he was not a bona fide mortgagee within the meaning of the statute. Jones v. Graham, 77 N. Y. 628; Button v. Rathbone, 126 N. Y. 187, 27 N. E. 266. The plaintiff, however, seeks to avoid the operation of this rule by testifying that at the time the mortgage was taken Milward said that he could not pay the note when it was due, and that he would like further time on the note, and he would give the security on the condition that the note was to be renewed, and thereupon the mortgage was taken. There is no extension of time provided for in the mortgage, nor does the evidence disclose that any valid agreement to extend for a definite period was ever concluded. Possibly Milward expected that the note tvould be renewed, but plaintiff does not testify that he agreed to do so, nor does the evidence show that he was under any contract to do so. Had he sued the note when it became due, no fact is disclosed that would have prevented his recovering judgment thereon, though probably he could not, in that event, have held the mortgaged property. Moreover, if there was a contract to extend for a definite period, on condition that the mortgage be given, we would hardly expect the mortgage to have been so drawn that the mortgagor would be in default on the very day the note became due. It does not appear that the plaintiff parted with any value, or gave up any right on the faith of the mortgage, and hence he is not a mortgagee in good faith. Gary v. White, 52 N. Y. 138. I conclude, therefore, that the defendants were entitled to the property in question as against the plaintiff, and that this action cannot be maintained.</p>

Action by John Szucliy, an infant, by John Stolzky, his guardian ad litem, against the Hillside Coal & Iron Company, for personal injuries, caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Petition by Lizzie Thorp, as grandniece and only next of kin of Annie O’Brien, or Larkin, deceased, intestate, for the assets of the estate of decedent, which had been paid by the public administrator into the treasury of the city of New York. From a decree in favor of petitioner, the comptroller of the city of New York appeals. Affirmed.

Certiorari by Thomas J. Hogsett to review the proceedings of Theodore Roosevelt and others, commissioner's of the police department of the city of New York, resulting in the removal of relator from the police force of the-police department of said city. Proceeding annulled.

<p>Justice op the Peace—Rendition op Judgment—Limit as to Time.</p> <p>Where a justice, within the four days limited by Code Civ. Proc. § 3015, for rendering judgment after trial of an action without a jury, entered on his minutes, “Judgment is hereby rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides costs of the action,” and figured up the costs except certain items which he could not then determine, and did not determine until after the four days had expired, such judgment is valid as to the damages awarded, and is not affected by the determination as to the amount of costs, which was void because it was not made within the four days.</p> <p>The opinion of Judge Turner, in the county court, is as follows:</p> <p>The issues in this action were fairly tried in the court below, and its conclusions thereon should not be disturbed. If, as the appellant insists, the judgment be void, his right to bring this appeal cannot be questioned. Striker v. Mott, 6 Wend. 465; Watson v. Davis, 19 Wend. 371; McMahon v. Rauhr, 47 N. Y. 67-72; Gillingham v. Jenkins, 40 Hun, 594. The action was tried before the court April 14, 1893, and on the 18th day of April, 1893, the justice made this entry on his minutes:</p> <p>“April 18/92. Judgment is hereby rendered in favor of defendant and against plaintiff for $40.66 damages, besides costs of the action.</p> <p>“W. H. Eggleton, J. P.”</p> <p>It is quite evident that the justice inadvertently wrote “April 18/92,” for “April 18, 1893,” the proper date; hence the error did not prejudice either party to this action.</p> <p>It appears from the answers of the justice to the interrogatories of plaintiff’s counsel in making an amended return herein that, on the 18th day of April (the last day on which he could render judgment), he figured up and determined the amount of costs in the action, except the items of serving the summons and for filing papers, and that he did not determine the precise amount of the whole costs until the morning of the 19th of April, 1893, but that all the costs except the two items for serving the summons and for filing papers were set down and entered on the 18th of that month. It also appears that he did not add up the entire costs until the morning of the 19th of April, after he had determined the amounts for serving the summons and for filing papers. The time for a justice to render and enter a judgment in an action tried before him without a jury is limited by statute to four days after the trial is finished and the case submitted. Code Oiv. Proc. § 3015. This was also the rule before the adoption of the Code. 2 Rev St. p. 247, § 124. The judicial power of the magistrate being thus limited to the four days, any subsequent act of his in attempting to render a judgment, as well as such judgment itself, would be coram non judice, and of itself wholly void. Gillingham v. Jenkins, supra. The act of the justice in determining the amount of damages and the costs therein is judicial, and not ministerial, and cannot be postponed until after the expiration of the statutory time of four days. He may, however, make the entry in his docket book after the expiration of the four days, as that is a ministerial, and not a judicial, act. In legal parlance, a judgment is the conclusion of law upon facts found, or admitted by the parties, or upon their default in the course of the suit; or to define it more precisely, as expressed by Blackstone and other legal writers, it is “the decision or sentence of law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein for the redress of an injury.” 3 Bl. Gomm. 395. “Where a verdict, or the decision of the justice upon a trial with or without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law.” Code Civ. Proc. § 3014.</p> <p>It appears from the return and amended return herein that the justice did, on the 18th of April, decide the case, and enter upon his minutes that judgment was rendered in favor of defendant, and against plaintiff, for $40.66 damages, besides the costs of the action; and that on the same day he entered various items of costs, not adding them up, however, which amounted in the aggregate to the sum of $3.50; and that on the next day, the 19th, he entered the figures for serving the summons and filing papers in the list of other items of costs, and added up and set down in the entry of costs the total or aggregate of all those items. When the justice rendered his decision, and made the entry of judgment on the 18th, the case was closed judicially, so far as he was concerned, and he had no authority or power to alter, add to, or subtract from the same. Dauchy v. Brown, 41 Barb. 555. The respondent contends that the act of the justice on the 19th of April, wherein he determined and set down in the items of costs the fees for serving the summons and for filing papers, and then added up the total of costs, was so immaterial and slight that it should be disregarded as falling within the scope and intentions of section 3063 of Civil Procedure. This contention cannot prevail as to the acts committed on the 19th, for the act of determining the items and amount of costs was judicial, and, except by consent of the parties, could not be performed on that day. It was not a technical error or defect, but one jurisdictional with the magistrate who did the act, and cannot be sustained in law. Silvern. App. § 589. Nevertheless, it seems to me to be clearly established that an unauthorized act on the 19th cannot and should not invalidate a proper and completed judicial act done on the 18th of April; hence that the judgment which he rendered on the last-named day in defendant’s favor, and against the plaintiff, for damages, as by him entered, is valid, and should not be disturbed. Had he added up the costs he determined and entered on that day (the 18th), I think no question could well be raised as to the regularity or validity of the same; but, as it was, he did not do that until the day following, when his power to do so had lapsed.</p> <p>If I am correct in these views, this judgment should be affirmed as to the amount of damages recovered, but not as to the costs, for there was no valid judgment determined or entered on the 18th, as to the amount of costs which went into the judgment. The judgment herein for $40.66 damages should be affirmed, and reversed as to the costs, the sum of $7.95, and costs upon this appeal allowed to respondent for the sum of $10 only. Appellant, who paid the $7.95 costs, has an adequate remedy to recover back the same.</p>

Action by Augusta G. Genet against the president, manager, and oompany of the Delaware & Hudson Canal Company, for damages on contract. The cause was referred, and was submitted to the referee, March 19, 1895.

Habeas corpus, on relation of John Laird, against John W. Hannan, sheriff, for discharge of relator, committed for criminal contempt. From an order discharging relator, defendant appeals. Affirmed. On or about the 31st day of May, 1895, one Edwin I. Brooks made •complaint before Edwin 0.

<p>Appeal from special term, New York county.</p> <p>Action by the New York Board of Fire Underwriters against Whipple & Co., as chief executive officers of the North & South American Lloyds. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.</p>

<p>On motion for reargument. Denied.</p>

Proceeding by the overseer of the poor of the town of Ellicottville, Cattaraugus county, to charge the town of Otto, in the same county, with the support of Martin Chapman, a pauper, then in Ellicottville, on the alleged ground that his settlement was in Otto. From an award by the county superintendent in favor of Ellicottville for costs, the town of Otto appeals. Dismissed.

Action by Miles D. Miller against William Board and Lewis K. May-lender for damages for the nonperformance of an alleged contract between plaintiff and defendants, whereby, as claimed by plaintiff, he was employed by defendants to act as chief of police of the village of Johnstown, but was not permitted to enter on the discharge of the functions of such office. From a judgment in favor of plaintiff, defendants appeal. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by the New York Board of Fire Underwriters against Whipple & Co., as chief executive officers of the North & South American Lloyds. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.</p>

<p>Appeal from circuit court, Oswego county.</p> <p>Action by Almon T. Wilcox and another against Edward Bread and another. From a judgment of nonsuit after trial, plaintiffs appeal. Affirmed.</p>

<p>Proceedings to Open Highway—Certiorari—Parties.</p> <p>Under Code Civ. Proc. § 2137, providing that “a person specially and beneficially interested in upholding the determination to be reviewed”, on certiorari may be admitted as a party defendant to the certiorari proceedings, one who made application for laying out a highway, and on whose application the decision of commissioners in favor of laying it out is confirmed, is properly admitted as a defendant on certiorari to review the proceedings relative to the highway; but the highway commissioner, whose duty it is, when it shall be finally determined that the highway shall be laid out, to carry out such determination, should not be admitted as a defendant.</p>

Action by Clarence W. Wood and others against the Sidney Sash, Blind & Furniture Company and others to have certain judgments declared void, and certain pretended sales and transfers of certain property set aside. Defendants’ demurrers to plaintiffs’ complaint were overruled, and defendants appeal. Affirmed.

Action by the village of Oneida against T. Augustus Thompson, collector, and Thomas W. Angel, surety, impleaded with Elverton 0. Stark, for the collector’s default in paying over money lost through failure of the bank of E. 0. Stark & Co., in which it was deposited. From a judgment for plaintiff, defendants appeal. Affirmed.

<p>Express Companies—Loss of Contents of Trunk—Liability—Evidence.</p> <p>In an action against an express company for loss of contents of a trunk, plaintiff having made a prima facie case by evidence that, on taking the train which arrived in New York City at 8 p. m. Saturday, she checked her trunk to that city, and delivered it in good condition to the railroad company; that on the train she delivered the check to defendant’s agent, with instructions to deliver the trunk at a certain place; that she heard nothing further from it till the following Tuesday, when it was delivered to her, soiled, broken, and empty, with defendant’s usual express stamp thereon,— it was error to direct a verdict for defendant on his claim that he did not receive the trunk from the railroad company on its arrival, and saw nothing of it till the following Monday evening or Tuesday morning, when it was brought to the railroad company’s baggage room by the driver of another express company, in its valueless condition; defendant not having shown when he delivered the check to the railroad company, and the presumption being that he did on Saturday night, and that he then received the trunk in good condition; and no witness having shown of his own knowledge that it was returned by another express company; and the agent of defendant who put the blue mark on the waybills opposite the name of plaintiff, and the description of her property, to show that it was missing, “or not delivered, or something of that kind,” on Saturday and the succeeding days, having.testified that, so far as he could remember, he made-no personal search for it till Monday.</p>

<p>1. Sham Answer&emdash;Counterclaim.</p> <p>A counterclaim in an answer cannot be stricken out as sham under Code Civ. Proc. § 538, allowing a “sham answer or a sham defense” to be stricken out.</p> <p>2. Appeal prom Justice’s Court&emdash;New Trial.</p> <p>Code Civ. Proc. § 3008, provides that when, in an action brought in a justice’s court, judgment for more than 850 is demanded in either pleading, appellant shall be entitled to a new trial, if in his notice of appeal he demands one. Held that, where the answer in an action in justice’s court contains a counterclaim sufficient and proper on its face, the question whether it was false in fact, and pleaded for the mere purpose of obtaining a new trial on appeal, could not be tried on motion and affidavits in the county court, on appeal thereto.</p>

Replevin by David K. McCarthy and others against Frederick P. Ockerman, sheriff of Broome county, to recover certain chattels replevied by the defendant. From a judgment for plaintiffs, rendered upon decision of the court after a trial by jury, defendant appeals. Reversed.

Action by Lester Southard against Abraham Becker. Defendant’s offer of judgment for a specified amount was refused. Plaintiff had judgment for damages and for costs to time of offer, and defendant for costs from time of offer, and defendant appeals. Judgment for defendant reversed, and for plaintiff modified.

Action by Philip Dumes against William S. Sizer for personal injuries. Motion by plaintiff for a new trial on exceptions, ordered to be heard by this court, in the first instance, on the granting of defendant’s motion for a nonsuit. Granted.

Action by William 0. Will and another against the Postal Telegraph Cable Company. The action was brought to recover damages caused by the defendant’s failure to transmit a message sent by the plaintiffs to one of their firm in reply to a prior message received from him. From a judgment for plaintiff for $555.25, defendant appeals. Affirmed.

Action by Terence McMahon against the New York Elevated Railroad Company and another for damages to plaintiff’s premises from construction and operation of defendant’s road. From a judgment for plaintiff entered on the report of a referee, defendants appeal. Reversed.

<p>1. Construction of Will—Sale of Infants’ Land.</p> <p>By the eighth clause, testator devised his real estate to. his executors, in trust to sell the same, to divide the proceeds into eight equal shares, to invest such shares severally for the benefit of his eight children, and to pay over to each child at his majority an equal share. By a codicil, testator revoked the power of sale so given, but provided that the land should be held under the same trust which was imposed on the proceeds of the sale directed in the eighth clause. The ninth clause provided that the executors might, whenever a child reached lawful age, make partition of the land, and allot to such child his share. Held, that no child’s share could be sold during his minority.</p> <p>2. Partition-Sale of Infant’s Land—Validity.</p> <p>Under 2 Rev. St. p. 195, § 176, which provided that no real estate of an infant should be sold against the provisions of any will, an order of court in a suit for partition, directing the sale of land devised to an infant, contrary to the provisions of the devise, was a nullity, and a purchaser thereunder took no title.</p> <p>3. Guardian—Purchase of Ward’s Land.</p> <p>Under 2 Rev. St. p. 326, § 58, providing that no guardian of an infant party to a partition suit shall purchase any of the lands in suit except for the benefit or in behalf of such infant, and that sales contrary to such provisions shall be void, the burden is on a guardian who has purchased such land in his own name to show that the purchase was within the exception of the statute.</p> <p>4. Same—Confirmation.</p> <p>The fact that an order is entered in a partition suit confirming a sale made in contravention 'of such statute gives no validity to the sale.</p> <p>5. Same—Rights of Bona Fide Purchasers.</p> <p>Such sale being absolutely void, subsequent bona fide purchasers acquire no title as against the infant.</p> <p>6. Same—Laches of Minor.</p> <p>Delay on the part of the infant in bringing suit to recover possession of the premises will not affect his rights.</p>

<p>1. Violation of Election Law—Contract of Employment.</p> <p>A contract whereby defendant, chairman of the county central committee of a political party, employed plaintiff: to perform for him the duties usually pertaining to that office, and agreed to be personally responsible for his compensation, is not, as a matter of. law, within Pen. Code,. § 410, subd. 4, providing that “any person who, with the intent to promote the election of a person to an elective office, * * * contributes money for any other purpose than the printing and circulating of hand-bills, books and other papers, previous to an election or town meeting, or conveying such poor or infirm electors to the polls, is guilty of a misdemeanor.”</p> <p>2. Same—Intent—Question fob Jury.</p> <p>In an action on such contract, the question whether the contract was entered into with intent to evade the statute is for the jury.</p> <p>3. Same—Burden of Proof.</p> <p>In such case the burden of proving an ulterior purpose is on defendant.</p> <p>The plaintiff is the assignee of one Fred M. Smith, and brings this action to recover for work, labor, and services performed by her assignor in the fall of 1892 at the request of the defendant, and at an agreed price, as it is alleged, of $500. The record discloses the following facts: In the month ■of August, 1892, the defendant, Hiram W. Babcock, informed the plaintiff’s assignor that he was about to be chosen chairman of the Democratic county -committee of the county of Cayuga; that he was anxious, for personal reasons, to accept the position, if chosen, but that his own private business was such that he could not very well neglect it and give to the performance of his duties as chairman the time and attention which they would demand; that he (Smith) had had experience, and was familiar with such duties, and that, therefore, he wanted him to represent him (the defendant) upon such committee. Smith, in reply to this request, stated that he could not afford to spend his time gratuitously, as his time was his only capital in business. The defendant replied that^he did not expect him to perform the services for nothing, and that there would be ample means with which to pay for the same. Smith stated that he was unwilling to enter into any contract with the county committee, whereupon the defendant asked Smith if he considered him responsible, to which Smith replied that he did for any agreement or bargain which he might make, and then added that if he performed the services desired by the defendant he should do so for him personally, to which the defendant replied, “All right; I will pay you.” The defendant then asked what he thought the services would be worth, and Smith told him $500. The defendant said they would be worth it. Thereafter the defendant was appointed chairman of the county committee, and Smith entered upon the discharge of his duties. But prior to such appointment, at the suggestion of the defendant, he (Smith) opened party headquarters, and gave such time and attention to the performance of the duties required of him as seemed to be necessary. After the campaign was formally opened, he was also chosen secretary of the executive committee, but no claim is made for the services rendered by him in that capacity. It appears that the duties devolving upon Smith as the representative of the defendant were to be at headquarters to receive parties that came in, and attend them in person, and answer such questions as came from different parties interested in the campaign; to provide for meetings that were to be held in Cayuga county; to secure speakers for different dates; to receive campaign speakers when they arrived at Auburn, and take care of them; to arrange dates and secure places where meetings were to be held, and to provide transportation for and accompany the various speakers during their campaign. About three days before the close of the campaign the defendant came to Smith, and told him that certain men, mentioning them by name, had come from New York with money, and that he was to go and get his pay, to which Smith replied that he had nothing to do with them; that he (defendant) understood very well that he was working for him, and had nothing to do with asking them for payment for his services. .Subsequently, and two or three days after the election, the defendant met Smith at an hotel in the city of Auburn, and asked him if he had received his pay; to which he replied that he had not, and that he (the defendant) knew he had not. Smith then told him that he wanted his pay. The defendant wanted to know what he was going to charge. Smith thereupon referred to the talk of August, in which it was understood the services would be worth $500, but said that he would make a lump bill against him for $300 for all services. The defendant said, “Make out your bill, and send it to me,” which Smith did, upon the 11th of November, but never received any reply to this bill except a promise to settle.</p>

<p>Master and Servant—Railroad—Injury of Switchman.</p> <p>The fact that plaintiff, while a switchman in the employ of defendant railroad company, was injured by reason of stepping into a hole between the ties in the switchyard, with which he was unfamiliar, while coupling ears in the night, is not of itself sufficient to entitle plaintiff to recover for the injury, it not being shown when or by whom the hole was made, or that defendant had, or was chargeable with, notice of it. Ward, J., dissenting.</p> <p>This action was commenced for the recovery of damages for personal injuries to the plaintiff, alleged to have been caused by the defendant’s negligence, and at the trial at the circuit the plaintiff recovered a verdict of $6,500. The plaintiff, who was a brakeman of some experience, entered the service of the defendant in-that capacity upon the 28th day of March, 1892, and at about 7 o’clock in the evening of that day he was furnished with a lantern by the defendant’s night yard master, at Lincoln Park, in the city of Rochester, and was by him assigned to work in the yard with the switching crew. In the course of his employment, and shortly after he commenced work, the plaintiff went up to that part of the yard west of Lincoln Park station, to a switch where there was a train of coal cars. These cars were pulled from a side track out onto the main track. The conductor pulled a pin at the west end of the rear car, and that car was kicked easterly down the main track by the engine. Certain other cars in the train were kicked back into the side track, and another car was kicked down the main track; and the plaintiff, in attempting to couple this car to the car first above mentioned, was injured. His right hand was caught between the buffers or deadwoods, and crushed to such an extent as to require amputation between the fingers and the wrist. The plaintiff claimed that he sustained his injury by reason of a defect in the defendant’s roadbed. The tracks in this yard were well ballasted, the gravel coming up to the level of the tops of the ties, with the possible exception of the point at which the plaintiff was injured, where, he testifies, there was a hole in the ballast, extending from the westerly rail to about the center of the main track, and from one tie to another,—that is, about ten inches,—and of the depth of about eight inches.</p>

Action by Lester M. G-odley and others against the Kerr Salt Company. There was judgment dismissing the complaint. Defendant appeals from an order refusing it an extra allowance of costs. Affirmed.

In the matter of the election of directors of the Buffalo, New York & Erie Railroad Company. The United States Trust Company of New York moves for an order compelling William B. Hoyt and others, inspectors of an election of such directors held at Buffalo, September 17, 1895, to receive and count the vote and ballot of such trust company at such election. Granted.

Proceeding on the petition of Robert Harris and others for drainage of certain lands in the town of Penfield.. From an order authorizing the drain, Adele L. Hulburt and others appeal. Reversed-

Action by William T. Slattery and another against Samuel E. Haskin. From a judgment entered in Steuben county for plaintiffs for |171.13 and interest from July 1, 1885, with costs, defendant appeals. Affirmed.

Action by William Kiernan, as executor, and another, against the' Agricultural Insurance Company and another, on a policy of insurance. From an order made at special term requiring the clerk of Cattaraugus county to retax and readjust the costs in said action, plaintiffs appeal. Affirmed.

<p>1. Devise to Church—Validity.</p> <p>Though a church incorporated under Laws 1813, c. 60, authorizing it to hold real estate in a limited amount, subsequently changed the form, of its government, and was thereafter known as the “Presbyterian Church of Ontario Center,” a devise to the trustees of said church was valid, where there was no other church in that town known or called by that name, and the testatrix was a member and a regular attendant upon th& services of said church until a few weeks before her death.</p> <p>2. Same—Trust.</p> <p>A devise of the residue of an estate to the trustees of an incorporated church, to be used by them to help defray the expenses of preaching the gospel in said church, vested said estate in the corporation, and did not create a trust in said trustees.</p> <p>3. Same—Power to Sell—Construction.</p> <p>A provision in a will authorizing the executor to convert the estate undisposed of into money, and to sell and convey the lands in fee simple, did not create a trust in the executor, but it was thereby intended to grant a power to enable the executor to carry out the residuary devise to said church.</p> <p>4. Costs—Allowance—Discretion—Review.</p> <p>An order granting an additional allowance of costs will be sustained, where there are no conflicting affidavits in the record, and it .does not appear that the court abused its discretion.</p> <p>Appeal from a judgment entered in the clerk’s office of Wayne county on the 1st of July, 1895, and also an appeal from an order made the 24th day of June, 1895, granting an additional allowance of $150 to the defendants. The action was tried at a special term in Wayne county, and the court made findings from which it appears that Julia A. Freer, of the town of Ontario, in Wayne county, was, in her lifetime, seized in fee simple and in possession ■of the real estate described in the plaintiffs’ complaint, and that she died on the 13th day of September, 1891, leaving no parent, husband, or child, her •surviving, but leaving as her only surviving heirs at law one brother, who is one of the plaintiffs, and two sisters, one of whom is plaintiff Jane E. Jackson, and the other a defendant herein, Delia 0. Hicks. On the 23d day of August, 1891, the testatrix executed her last will and testament, which is fully set out in the complaint. The will was admitted to probate by the surrogate of Wayne county, and letters testamentary were issued to the defendant John O. Howk, who qualified and entered upon the discharge of his duties as executor. It is found as a fact that Oscar F. Whitney, Edwin Harrison, and Edson Howk are trustees of the church society known as the “Presbyterian Church of Ontario Center.” It is also found “that the said society was originally incorporated as a Congregational society, but that thereafter its form of government was duly changed to Presbyterian, and it has since been known as and called a Presbyterian church. It was the church attended by the testatrix in her lifetime, and the only one of that name in the vicinity of her late residence.” It was also found that the personal estate of the testatrix was more than sufficient to discharge in full all debts, claims, and legacies against said estate. The court found as conclusions of law, viz.: “(1) That the fourteenth clause of said last will and testament of Julia A. Freer, by which the disposition of the residuum of her estate is attempted, is not invalid by reason of the creation of an unlawful suspension of the power of alienation of the estate bequeathed, but that, on the contrary, said clause operates to vest such estate in the trustees of the Presbyterian Church (or Congregational) of Ontario Center, subject to the contingent interest therein of the Board of Home Missions and the Board of Foreign Missions of the Presbyterian Church, and to the duty imposed upon said trustees by the fifteenth clause of said will. (2) That said fourteenth clause is not void by reason of the fact that said will was executed within two months of the death of the testatrix. (3) That the plaintiffs are not entitled to the relief demanded in their complaint.” And the court ordered judgment dismissing plaintiffs’ complaint, and, in accordance with the findings, the judgment was entered from which the plaintiffs appeal.</p>

Action by Ada B. Riggs against William F. Buckley to recover on an assignment of an interest in an award, alleged to have been executed by defendant to another, and to have been transferred through others to plaintiff. An order was made requiring defendant to furnish a bill of particulars as to certain matters alleged in the answer, and he appeals. Modified.

<p>Action by Scharize Isear against Russell H. Hoadley and others. Defendants demurred to the complaint. Overruled.</p>

<p>Wills—Construction—Vesting of Estate.</p> <p>Testator gave land to his son for life, “and then to be equally divided among my grandchildren,” but, if the son should leave a child or children, then to be his or theirs forever. Held, that the grandchildren took a vested interest in the land upon the death of testator.</p>

<p>Action by Sigmont Simon against Jennie Simon for separation from bed and board. Dismissed.</p>

Action by Henry M. Field against Avery Ingreham, as sheriff, to foreclose a chattel mortgage on property in the hands of the defendant- under an execution. Judgment for defendant.