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should first be sought from those who were personally and primarily liable to pay it. Dodge v. Manning, 1 N. Y. 298. Whether that could have been required of the legatees of the will in question, if they had proceeded in equity to enforce the lien against the realty devised, we are not advised by the evidence, nor is it necessary, in the present case, to consider that question. It may here be assumed that the remedies at law and in equity were concurrent. In such case the statute limiting the time for the commencement of the action at law is applicable alike to both remedies.
This was so before there was any statute in that respect relating to suits in equity, and the provision of the Revised Statutes applying to the latter the same limitation of time for their commencement (2 Rev.
p. 301, § 49) was declaratory of the law as it then existed, (Borst 5. Corey, 15 N. Y. 505.) The statute of limitaticns applicable to an action at law against the devisees of the will to recover the legacy was alike available as a defense to a suit in equity founded upon the charge of it as a lien upon the land. In re Neilley, 95 N. Y. 382, 390; Butler v. Johnson, 111 N. Y. 204, 217, 18 N. E. 643. The limitation of six years is alleged by the defendants Hohman as a bar to the charge founded upon the legacy made by the legatee in his answer. His cause of action accrued when he arrived at the age of 21 years, in 1883,- nine years before this action was commenced. Although the will was sealed with the seal of the testatrix, an ac tion to recover the legacy would not be one on a sealed instrument, within the meaning of the statute. It would be founded upon the implied prcmise of the devisees to pay, arising from their acceptance of the devise. Society v. Hebard, 51 Barb. 552, 41 N. Y. 619; Loder v. Hatfield, 71 N. Y. 92, 104. Nor is the statutory limitation of 10 years (Code, $ 388) applicable to an action by the legatee to en. force it as a charge upon the land. That provision is applied only to cases exclusively within equity jurisdiction, and in which there is no concurrent remedy at law. Butler v. Johnson, 111 N. Y. 204, 18 N. E. 643.
It follows that the six-years limitation statute is applicable to the claim made by the defendant Beck, and, as it does not appear that any partial payments were made upon his legacy within that time next preceding the commencement of the action, it was a bar to relief in his behalf in the action. The question of the alleged payment of it is not here for consideration. Upon that subject there was a conflict in the evidence, and the trial court did not find what the fact was in that respect. The judgment should be affirmed. All concur.
(75 Hun, 363.)
FOELS v. TOWN OF TONAWANDA. (Supreme Court, General Term, Fifth Department. January 18, 1894.) MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS - NOTICE.
The existence of a hole in a sidewalk for two or three weeks is suffi. cient to charge the town with notice thereof. Appeal from circuit court, Erie county.
Action by Sophia Foels against the town of Tonawanda. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.
The action was to recover for personal injuries sustained by the plaintiff in August, 1888, caused by her stepping into a hole in the sidewalk of a highway bridge in the village of Tona wanda. One of the planks of the sidewalk was out, which left a hole in the walk a foot wide, and extending across the entire walk. The plaintiff, in company with her two sisters, was crossing the bridge in the daytime. She was walking immediately behind her sisters, looking straight ahead, and did not see the hole until she stepped into it and was injured. There was evidence tending to show that the hole had been in the walk for two or three weeks immediately prior to the accident,-ample time to justify the jury in finding that the highway commissioner had constructive notice of it. There was evidence on the part of the defendant controverting the claim of the plaintiff as to the existence of the hole for the length of time mentioned. There was evidence that a few days before the accident the plaintiff was told of the hole in the bridge. She testified that she did not see the hole before she stepped into it, and did not know it was there. The verdict was for $4,500. It was the second verdict for that same amount; the first one having been set aside by the judge before whom the case was tried, for the reason that in his judgment it was excessive. 14 N. Y. Supp. 46.
Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
LEWIS, J. The existence of the hole in the sidewalk of the bridge, on one of the highways of the town, for such a length of time as to justify the jury in finding the highway commissioner guilty of negligence, was sufficiently established by the evidence. Whether the plaintiff's negligence contributed to her injuries was, under the circumstances proven, a question for the jury. The de. fendant's highway commissioner was in charge of the highway bridges of the town, including those within the corporate limits of the village of Tonawanda. The action was therefore properly brought against the town. There does not seem to be any reason for reversing the judgment. It should be affirmed. All concur.
(75 Hun, 214.)
BOOHER V. STEWART. (Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. CHATTEL MORTGAGES—WHAT SUBJECT TO.
An agreement by which M. was to work defendant's farm on shares, and defendant was to make certain advances to M., the title to the crops to remain in defendant until the advances should be fully paid, gives M.
no interest in the crops which he can mortgage. 2. CONTRACTS-INTERPRETATION.
Such agreement is a contract of hiring to work defendant's farm for a share of the crops, and is not in the nature of a chittel mortgage, or a conditional sale or pledge, and therefore it need not be in writing, or tiled, to give it precedence over a mortgage of the crops, executed by M.
Appeal from circuit court, Livingston county.
Action by George W. Booher against William N. Stewart. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes of the court, plaintiff appeals. Affirmed.
Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
DWIGHT, P. J. The action was trover for an undivided onethird part of a crop of oats raised on the farm of the defendant by one Macauley, who took the farm to work on shares. The plaintiff claimed under a chattel mortgage given to him by Macauley, and the real question in the case is whether, under the agreement of the defendant with Macauley, the latter had any property or interest in the crop which he could transfer by chattel mortgage or otherwise. The agreement was, as we have said, to work the farm on shares, but with many special provisions; among others, that the defendant should make certain advances to Macauley, to enable him to carry on the work, and that the title to the crops should remain in the defendant until those advances were fully paid. There was some conflict of evidence in respect to the last. mentioned feature of the agreement, but the jury was abundantly justified in finding, as under the submission of the case to them they must be presumed to have found, that such was the agreement. Under that agreement there seems to be no room for the contention of the appellant. Here was no lease, nor was the relation of landlord and tenant created between the parties. It was, in effect, a contract of hiring to work the defendant's farm, compensation to be rendered in a share of the crop. Unglish v. Mar. vin, (Sup.) 8 N. Y. Supp. 283; Reynolds v. Reynolds, 48 Hun, 142, and the cases cited. The entire crop belonged to the defendant, except as otherwise provided by the agreement; and by the agreement it was provided that the entire crop should continue to belong to the defendant until he was repaid the advances made by him. This agreement was not in the nature of a chattel mortgage, nor a conditional sale, nor a pledging of the property of the debtor for the security of the creditor, because the property was the creditor's from the beginning, and was to become the debtor's only on payment of his debt. The case seems to be entirely within the doctrine of Andrew v. Newcomb, 32 N. Y. 417, which case it closely resembles in its facts. Such being the nature and effect of the agreement, it was not necessary that it should be in writing, nor filed as a chattel mortgage, in order to give it precedence over the chattel mortgage of the plaintiff. Indeed, under such agreement, Macauley had no property or interest in the crop which was capable of transfer by chattel mortgage, and the plaintiff took nothing by the paper executed to him. We find no exception in the case which points to error on the trial, and conclude that the judgment and order appealed from must be affirmed. So ordered. All con(ur,
175 Hun, 48.)
GOLDSMITH V. COVERLY et al. (Supreme Court, General Term, First Department. January 12, 1894.) WITNESS-CREDIBILITY-PARTY TO ACTION.
It is error to direct a verdict for a party on his evidence alone, though it is uncontradicted, as his interest in the result presents a questiou as to his credibility which the jury should pass on. Follett, J., dissenting. Appeal from circuit court, New York county. Action by Mayer Goldsmith against William Coverly, impleaded with others. From a judgment entered on a verdict of $7,577.83 in favor of plaintiff, defendant Coverly appeals. Reversed.
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Foster & Thomson, (Austen G. Fox, and Giraud T. Thomson, of counsel,) for appellant.
Butler, Stillman & Hubbard, (Wilhelmus Mynderse, of counsel,) for respondent.
PARKER, J. The agents in New York for the National Steamship Line, the Wilson Line, and the Anchor Line of steamers, about May 18, 1887, made an agreement with the plaintiff, which was reduced to writing in the form of a communication signed by the agents, and accepted by the plaintiff, which reads as follows:
“New York, May 18, 1887. “Dear Sir: Please note that on October 1st, 1887, we will severally return to you a sum equal to five (5) per cent of the aggregate freights you may pay us from April 1st to July 1st, 1887, on live cattle shipments to Glasgow, Liverpool, London, or Hull, England. That on January 1st, 1888, we will return to you a like percentage of the aggregate freights which you may pay us on such shipments from July 1st to October 1st, 1887. That on April 1st, 1888, we will return to you a like percentage of the aggregate freights which you may pay us on such shipments from October 1st, 1887, to January 1st, 1888. That, on July 1st, 1888, we will return to you a like percentage of the aggregate freights which you pay us on such shipments from January 1st to April 1st, 1888. Provided, that any and all live cattle in the export of which from this port to Glasgow, Liverpool, London, or Hull, you may be interested, directly or indirectly, shall have been shipped exclusively for the six months preced ng each of said dates of payment on steamers represented by the undersigned. “Respectfully yours,
F. W. J. Hurst. "Henderson Brothers.
"Sanderson & Son." This agreement was continued orally by the plaintiff and Henderson Bros., defendants in this case, from the 1st day of April, 1888, to January 1, 1890. The defendants in the mean time made for the plaintiff large shipments of cattle, receiving payment therefor. But from December 31, 1888, to January 1, 1890, they did not pay to the plaintiff anything on account of rebates, and refused to do so, for the reason, as they alleged, that plaintiff had failed to comply with the conditions upon which the right of rebate was made to depend, in that he had not shipped all live cattle in which he was directly or indirectly interested from the port of New York to the ports named in the agreement by the steamship lines agreed upon. It
was to recover the amount of such rebates that induced the com. mencement of this action. There was no dispute as to the amounts of freights paid defendants, and the only issue presented by the pleadings was whether plaintiff had conformed to the agreement by shipping live cattle to the ports designated in it by the steamship lines represented by the agents signing it. The burden of proof necessarily rested upon the plaintiff to establish a compliance on his part with that provision of the agreement upon which he based his claim of right to recover. The only evidence presented by him for that purpose was his own testimony, which, if true, was sufficient to require a verdict in his favor. The court, assuming it to be true, directed a verdict in his behalf for the sum of $7,088.77. The defendants, having asked for leave to go to the jury on the issues presented, now contend that it was error for the court to direct a verdict against them, and the reason assigned is that, in view of the fact that the only evidence offered in support of plaintiff's claim was that of a party to the action, whose testimony, it is urged, was to some extent discredited by his own answers on cross-examination, the question as to the truthfulness of his evidence was for the jury. That the court could direct the jury to find a verdict in favor of plaintiff in the event that they should believe his testimony to be true, but that it bad no right to direct them to believe him. The early rule denied the competency of a party to the record to testify as a witness. Subsequently this rule was changed by statute, which has since become incorporated in the Code of Civil Procedure, (section 828.) But ever since parties to an action were qualified by statute to testify as witnesses in their own behalf, a distinction has been uniformly observed between their testimony and that of wholly disinterested witnesses. While the testimony of disinterested wit. nesses, who are neither impeached nor discredited, must be credited, that of witnesses who are parties to the action by reason of their interest in the result is ordinarily to be considered by a jury, in order that they may determine what effect, if any, their interest in the result of the controversy should have upon their credibility. And it has been held many times that, although the testimony of a party to an action be uncontradicted, his interest presents a question as to credibility which the jury must pass upon. Honegger v. Wettstein, 94 N. Y. 252--261; Wohlfahrt v. Beckert, 92 N. Y. 490.494; Kavanagh v. Wilson, 70 N. Y. 177; Elwood v. Telegraph Co., 45 N. Y. 549; Sheridan v. Mayor, etc., 8 Hun, 424; Moody v. Pell, 2 Abb. N. C. 274. In actions where corporations are parties the same rule has been applied to the testimony of its officers. Bank v. Diefendorf, 123 N. Y. 191--200, 25 N. E. 402; Joy v. Diefendorf, 130 N. Y. 6, 28 X. E. 602.
The case which tends more strongly to support the decision made than any other is Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109. In that case the defendant was the first and plaintiff the second indorser on a note made by one Evans. From the statement of facts we quote: “Defendant then testified that he indorsed the note at the request and for the accommodation of the maker, and returned