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Appeal from special term.

Action by Mary Reynolds against the City National Bank of Watertown and others to set aside, as void, a conveyance by plaintiff to her husband, or, in the event that such relief is denied, to enforce in her favor a vendor's lien for the unpaid purchase price of the premises conveyed. From a judgment for defendants, plaintiff appeals.

Affirmed.
Argued before HARDIN, P. J., and MERWIN and PARKER,
JJ.

Hannibal Smith, for appellant.
Lansing & Lansing, for respondents.

PARKER, J. We have no difficulty in adopting the finding of the court at special term that the deed from the plaintiff to her husband, bearing date January 13, 1885, was not delivered until June 28, 1889. The testimony that both parties gave before the referee in supplementary proceedings is much more reliable than that given under the pressure of the situation at the time this action was tried, and is much more consistent with reason, and the mode in which their business was done. Before the referee, both testified that the deed was not delivered in 1885, and the plaintiff gave her reasons for retaining it. It is not at all probable that the statement of both was misunderstood, or inaccurately taken down; and it can hardly be supposed that they both deliberately, and without reason, then testified falsely, and now, for the first time, tell the truth, as to the transaction. If the deed was delivered in 1889, it was not a void conveyance. The disabil ity which existed in 1885 had been removed by chapter 537, Laws 1887, and the conveyance operated between herself and her husband in the same manner that it would between herself and one not related to her. It does not depend for its validity upon the ratification of the agreement to convey made in 1885, or upon any ratification whatever, but it is in itself a new and executed contract, sufficient in form and manner of execution to convey real estate, and surely it is a matter of no importance when it was drawn up or executed. It was delivered in 1889, at a time when such an instrument was operative between them, and hence it cannot be set aside as void. It is claimed by the plaintiff's counsel that, notwithstanding the act of 1887, the disability against a married woman's contracting with her husband still continued. It may be that such statute did not enlarge the power of a wife to make with her husband an executory contract to convey, but the question here is not whether her contract to convey could be enforced in 1889, but whether the conveyance which she then made was a void one. Certainly, at that date, all the disabilities that formerly rendered such a conveyance void had been removed, and therefore the title to her premises had been lawfully transferred to her husband, and he was in a position to lawfully convey or mortgage the same.

The question whether the transaction under which such deed was delivered was an actual and bona fide sale, so that the plain. tiff acquired a vendor's lien on the premises for the unpaid purchase money, is a more difficult one. It is true that she had the title to the premises, and that at the time it was taken their pecuniary condition does not indicate that it was given to her in fraud of her husband's creditors. It is also true that they both testify that the deed was delivered in consideration of his agree. ment to pay $3,000 for the premises; but yet, if such premises were recognized between themselves as the property of the husband, or as the product of their joint labor, in which both were interested, and the title to which was kept in such a position that it could be used as the property of either, as the exigencies of their business might require, and if it was conveyed to the husband under such an arrangement, then the plaintiff would not be within the equity of the rule that gives to the vendor of real estate a lien upon it until his just demands for the purchase price thereof are satisfied. Pom. Eq. Jur. § 1250. There are many things indicating that the parties did not, as between themselves, assume the ordinary relation of vendor and vendee, and particularly showing that a vendor's lien for the purchase money was not contemplated between them. The deed was delivered for the express purpose of enabling the husband to raise money on the premises for use in his business, and the plaintiff not only at once joined with him in putting a $2,000 mortgage thereon, but subsequently joined with him in further mortgaging it to the defendant the City National Bank. The whole course of their dealing, by which this property was acquired; the unusual way in which the title was kept in her name on the record, and in his name in the house; her readiness to give him the title, and join with him in incumbering it; the fact that no evidence of a promise to pay the alleged purchase price was given or asked for when the conveyance was made, although on its face the deed expressed a consideration of only one dollar fully paid; and the subsequent conduct of the parties, in giving a note for such purchase price, and seeking to enforce it by judg. ment and execution against his personal estate in advance of his creditors, as soon as it appeared that the husband could not continue his business,-all indicate that it was not a sale of property, such as would give the wife the equity of a grantor's lien. An extended analysis of the evidence on this question is not necessary. It has been thoroughly done by the judge at special term. He has seen the parties under examination, and from all the evidence has been convinced that the sale claimed by them was never in fact made. The case does not present such a preponderance of evidence against his conclusions as to warrant our interfering with them. Baird v. Mayor, 96 N. Y. 567; Devlin v. Bank, 125 N. Y. 756, 26 N. E. Rep. 744; Beckwith v. Railroad Co., 64 Barb. 308; Roosa v. Smith, 17 Hun, 138; Thompson v. Vrooman, (Sup.) 21 N. Y. Supp. 180. We do not discover any error in the admission

or rejection of evidence which has worked any injury to the plaintif. aou on the whole case we conclude that the judgment is corrart, and should be affirmed, with costs. All concur.

BURDITT V. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Fourth Department. September 23, 1893.) 1. CONTINUING TRESPASS-DAMAGES.

In an equitable action against a railroad company for illegally using plaintiff's land for a switch, loss of the use of the premises up to the

time of the trial may be included in the damages. 8. SAME-OPINION EVIDENCE.

Evidence offered by the defendant as to the effect of the construction of the switch on plaintiff's land in the opinion of the witness is inadmissible.

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Appeal from special term.

Action by Luther J. Burditt against the New York Central & Hudson River Railroad Company. Judgment for plaintiff. fendant appeals. Affirmed.

The plaintiff owned to the center of Teall avenue, in the city of Syracuse. The defendant had laid down, and at the time of the commencement of this action was maintaining and operating, a switch upon and across a portion of the preinises of the plaintiff included within said avenue, without the permission of the plaintiff, and without having obtained any right so to do either by agreement or proceedings to condemn. This action is brought to enjoin the defendant from operating such switch upon the premises, and for damages sustained by reason of its having been so used. The court at special term granted the injunction asked for, and fixed the damages sustained at the sum of $151.75. From the judgment entered upon such decision the defendant appeals to this court.

Argued before HARDIN, P. J., and MERWIN and PARKER,
JJ.

M. M. Waters and Ashbel Green, for appellant.
C. H. Wilson, for respondent.

PARKER, J. There seems to be no doubt but that the defendant, in building and maintaining this switch in Teall avenue, has been guilty of a continuing trespass upon the plaintiff's land, and that the judgment enjoining him from using such switch was properly rendered in this action. Indeed, the appellant makes no complaint before us of any error upon that question. The real question presented is whether the court at special term has imposed too heavy damages against the defendant by fixing the plaintiff's loss of rents sustained in consequence of the use of the switch from the time it was laid at the sum of $151.75. It is not claimed that in fixing this amount the court adopted any erroneous rule of law, but simply that such amount cannot be sustained by the evidence in the case. An examination of the evidence convinces us that there is no occasion for interfering with the decision of the trial court upon that question. It being an action in equity, and equitable relief having been granted, the loss of the use of the

v.24N.Y.s.no.12–72

premises up to the time of the trial might very well have been included in the damages allowed, and a larger sum even have been awarded. Barrick v. Schifferdecker, 48 Hun, 356, 1 N. Y. Supp. 21; Id., 123 N. Y. 52, 25 N. E. Rep. 365; Henderson v. Railroad Co., 78 N. Y. 423.

The objection that evidence offered by the defendant was improperly excluded is not well taken. The questions ask for the opinion of the witness as to the effect of the construction of the switch upon the plaintiff's property. That was the precise question upon which the court was to decide, and such opinion, within the rule laid down in the Roberts' Case, 128 N. Y. 455, 28 N. E. Rep. 486, is not proper evidence. See discussion of that question at page 471, 128 N. Y., and page 492, 28 N. E. Rep., of such case. The defendant's ninth and tenth requests to find assume that only that part of plaintiff's land over which the switch actually passed was injuriously affected by it. Such an assumption is not sustained by the evidence, and the requests were for that reason properly denied. On the whole case we think the judgment is correct, and should be affirmed, with costs. All concur.

KRAKOWSKI V. NORTH NEW YORK CO-OPERATIVE BLDG. & LOAN

ASS'N.

(Common Pleas of New York City and County, General Term. August 9, 1893.) APPEAL - PERFECTING ! En;"

Where both parties to an appeal base their rights on certain provisions of defendant corporation's articles of association, which appear to have been received in evidence on the trial, but not returned, the return should be perfected, and a rehearing allowed. Appeal from tenth district court.

Action by Emil Krakowski against the North New York Co-operative Building & Loan Association to recover, on withdrawal by plaintiff from defendant, the amount paid on shares issued to him, less all fines and a ratable proportion of losses, pursuant to the provision of the alleged articles of association of defendant. From a judgment for plaintiff, defendant appeals. Rehearing directed.

Argued before BISCHOFF and GIEGERICH, JJ.
James C. De La Mare, for appellant.
Fred. C. Leubuscher, for respondent.

PER CURIAM. Both parties to this appeal base their claims upon certain provisions of defendant's alleged articles of association, of which the justice's return, in its present condition, presents no evidence. The trial minutes show that certain so-called bylaws were offered and received in evidence, and marked “Deft's Exh. A;" but this exhibit does not accompany the return, and we are thus left to conjecture respecting its contents. Plaintiff's Exhibit 10 seems to be confined to certain pages bearing written entries.

and contained in a book entitled “Articles of Association of the North New York Building and Loan Association," and we can. not, therefore, consider the book for other purposes. Again, the corresponding provisions of the so-called articles of association, as they appear in the book referred to, are essentially different from those which are set out at length in appellant's counsel's brief, yet the latter may be in harmony with defendant's Exhibit A, now omitted, and to which counsel refers. We think that, for the matter above alluded to, justice requires that the parties have opportunity to perfect the return, and we direct that this appeal be reheard at the next November general term, any amendment of the return on this appeal to be made meanwhile.

(70 Hun, 398.) ARTHUR, Respondent, v. LACY, Appellant. (Supreme Court, General Term, First Department. June 30, 1893.) Action by Joseph Arthur against Harry Lacy. Vanderpoel, Cuming & Goodwin, for respondent. Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ. No opinion. Motion granted, with $10 costs.

(70 liu, 392.) BOODY v. LINCOLN NAT. BANK OF NEW YORK et al. (Supreme Court, General Term. First Department. June 30, 1893.) Submission, without action, of controversy between Ambia Boody, as plaintiff, and the Lincoln National Bank of New York and William G. McIntyre, adminis. trator of Azanah B. Harris, deceased. as defendants, in which plaintiff sought to recover certain money in the bank to the credit of deceased, as agent. Judgment for plaintiff.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Percy L. Klock, for plaintiff.

Butler, Stillman & Hubbard, (Edward Kent, of counsel,) for defendant Wm. G. McIntyre.

Dittenhoefer, Gerber & James, for defendant Lincoln Nat. Bank.

PER CURIAM. The sum of $4.440.50, on deposit with the Lincoln Nationa Bank, to the credit of A. B. Harris, agent, must be paid to the plaintiff, Ambia Boody, with no costs to any party.

(70 Hun, 598.) DE BORDELEBEN COAL & IRON CO. v. BUENA VISTA IRON CO.

(Supreme Court. General Term, First Department. June 30, 1893.) Action by the De Bordeleben Coal & Iron Company against the Buena Vista Iron Company,

Tueron G. Strong, for plaintiff.
H. A. Tavlor, for defendant.
No opinion. Judgment attirmed.

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