Hutchins, applt., v. Hutchins, respt.

Decided Jan. 20, 1885.

It is only where the party making the declarations has, at the time of making them,

title to the property that such declara tions bind his successor in interest. A declaration to a stranger is mere hearsay. A reservation by parol of a life estate to the grantor in case of a deed in fee cannot be sustained.

Semble, That a deed cannot be so far contradicted by parol as to show that it was not intended to operate at all, or that it was the intention that the grantee should acquire no rights whatever under it, or that he should re-convey to the grantor on request without any consideration. Reversing S. C., 15 W. Dig., 370.

This was an action of ejectment to recover possession of certain lands conveyed by defendant by warranty deed, in fee, to P. H., plaintiff's husband, and which were devised by him to plaintiff in fee. Defendant's answer set up that the deed from defendant to P. H., of the lands in question was a mortgage in trust and that it was expressly agreed that P. H. should never ask that said deed or mortgage be paid, but that he should release, discharge or deed back said land at any time. defendant so elected, and judgment that the instrument should be discharged of record was demanded. Plaintiff introduced in evidence a warranty deed of the premises to defendant, dated April 1, 1879; a warranty deed from defendant to P. H., dated

March 11, 1880, consideration $1,391, duly acknowledged and recorded as a deed of real estate, and containing no exception, reservation or defeasance. She then proved the death of P. H., June 11, 1880, and introduced in evidence his will, which was admitted to probate Oct. 12, 1880, and devised the premises in question to plaintiff in fee, and proved a demand by her for possession of the premises served Nov. 3, 1880. It was also proved that P. H., paid $1,391 for the premises and that they were worth from $1,200 to $1,500; that defendant's grantor had a mortgage of $900 on the land given by defendant, which P. H. paid and had discharged nearly a month after he received his deed from defendant. Oral evidence was admitted, under exception, of declarations of P. H., to third persons, as to his motives in acquiring title to the premises, to the effect that he intended to assist defendant, who was his brother, in paying for the place, to make him a home as long as he lived. Defendant was not present at these conversations. These declarations were made before P. H. acquired title.

R. H. Duell, for applt.
A. P. Smith, for respt.

Held, That evidence of declarations made by P. H., before he acquired title to the premises in question, as to his intentions and motives in regard to the premises, was inadmissible as against plaintiff.

It is only where the party making the declarations has, at the time of making them, title to the

property that such declarations bind his successor in interest. A declaration to a stranger is mere hearsay.

Defendant was allowed to prove under objection that P. H. was supposed to be worth $15,000, while he swore that he was not a man of property.

Held, Error; that this evidence was irrelevant and improper and cannot be said to have been harmless. 54 N. Y., 334.

The judge, after charging that the only question for the jury to decide was whether the deed from defendant to P. H. was what it purported to be or was intended as a mortgage, was requested by defendant's counsel to charge as a further and independent proposition, that if P. H. promised that defendant should have possession of the property during defendant's life, in consideration of a conveyance of the premises by defendant, and defendant has kept possession under that agreement from that time to this and paid the taxes and made valuable improvements on it, on the strength of it, then he is entitled to possession during his life, and this action cannot be maintained. The charge was made as requested and an exception was taken.

Held, That the charge was erroneous. A reservation by parol of a life estate to the grantor in case of a deed in fee cannot be sustained.

It seems that a deed cannot be so far contradicted by parol as to show that it was not intended to operate at all, or that it was the

intention or agreement of the parties that the grantee should acquire no rights whatever under it, or that he should reconvey to the grantor on his request without any consideration.

Judgment of General Term, affirming judgment on verdict for defendant, reversed, and new trial ordered.

Opinion by Rapallo, J. All

concur.

SECURITY ON ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

William T. Riggs, applt., v. The Cleveland, Youngstown & Pittsburgh RR. Co., respt.

It

Decided Jan. 9, 1885.

is doubtful whether an order increasing

the security required upon an attachment is appealable to the General Term. The amount of security required upon an attachment is in the discretion of the Court or Judge, and an order fixing it will not be interfered with upon appeal, unless such discretion has been abused.

It is not an abuse of such discretion to re

quire an undertaking in the sum of $5,000 upon an attachment of certain bonds of a foreign corporation in which defendant's interest, assuming them to be of par value, is $163,563.60 although their real value is uncertain and is probably much less than par.

The appointment of a foreign receiver of the corporation issuing the bonds on the ground of its insolvency is no reason for vacating an order previously made, fixing such security.

Appeal from order granting motion to increase the security required on issuing an attachment, and from an order denying motion to vacate the order increasing such security.

Plaintiff brought this action to recover damages alleged to be $550,000 for breach of contract, and defendant being a foreign corporation he sued out an attachment, giving an undertaking of $500, and the attachment was levied upon defendant's interest in $410,000 of bonds deposited as collateral for loans. The value of defendant's interest in the bonds, assuming them to be worth par, over and above the indebtedness for which they were pledged, was $163,568.60, and, although the real value of the bonds was uncertain and was probably much less than par, the security required upon the attachment was increased upon motion of defendant to $5,000. Plaintiff subsequently moved to vacate the order requiring this increased security on the ground that a foreign receiver of defendant had been appointed on account of its insolvency. The Court denied this motion upon the ground that this additional fact did not necessarily affect the value of the bonds.

G. C. Lay, for applt.

J. M. Ferguson, for respt.

Held, That it might well be doubted whether the orders in the case were appealable. That the amount of the undertaking in such cases is in the discretion of the Court or Judge, and, unless that discretion has been abused, there seems to be no good ground for holding that an appeal from such an order can be taken to this Court. 57 How., 170; 15 Abb., 29; 24 How., 425. That, assuming that the orders were appealable, there was

no sufficient reason for interfering with the discretion exercised by the Court at Special Term in fixing the amount of the undertaking required at $5,000.

That the reasons assigned by the Special Term for denying the motion to vacate the order directing the increased security were satisfactory and his conclusion should not be interfered with.

Orders affirmed.

Opinion by Davis, P.J.; Brady and Daniel, JJ., concur in the result.

EXTRA ALLOWANCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Timothy W. Gooding, applt., v. Spencer A. Brown et al., respts.

Decided Jan. 1885.

Until the contrary is shown, it will be presumed that an order of Special Term allowing additional costs was rightfully granted. Although the record and papers before the appellate court do not show that the case was difficult and extraordinary the case is not necessarily excluded from the operation of the statute giving additional allowance.

Appeal from Special Term order giving defendants additional allowance of $500.

The trial in this cause, in which the order appealed from was entered, did not occupy more than a day. No testimony was given on defendants' part. The facts were few and simple. They showed an executory oral agreement that two persons should make their wills for the benefit of the survivor. The determination of the case required the application of only well

settled principles of law to the facts, and about the facts there was no dispute on the trial. The controversy involved about $100,000. The judge who heard and decided the case held the court which made the order. It seems that the motion was made on papers and statements, some of which do not appear on this appeal.

J. Henry Metcalf and W. F. Cogswell, for applt.

E. M. Morse and E. G. Lapham, for respts.

Held, That the expression "difficult and extraordinary" in the statute allowing additional allowance, Code Civ. Proc., $3253, imports something more and other than usual, common, and ordinary in respect to the labor and skill required, or in the time occupied in the preparation or trial of the case or both. 5 How., 278; 22 id., 454; 24 id., 385; 7 Hun, 184. The decisions give no well defined interpretation and application of the rule. See 14 Hun, 110; 61 N. Y., 564; 17 Hun, 87; 16 Abb., 465.

So far as relates to the questions of law presented and the time occupied in the trial it does not seem that the case comes within the fair meaning of the terms difficult and extraordinary.

It is not shown that the judge who granted the order had not knowledge of facts which do not appear here. We cannot say there was an abuse of discretion. 8 W. Dig., 57; 9 id., 286; 31 Hun, 403; 29 N. Y., 426; 63 Barb., 555. Order affirmed.

TERM. FOURTH DEPT.

Rodney C. Webber, applt., v. The Herkimer and Mohawk Street R. R. Co., respt.

Decided Jan., 1885.

The contract of a carrier to carry a passenger is an important element in the passenger's right to recover for a personal injury caused by the carrier's negligence, but only as inducement and not as substance. The real ground of action is the tort or negligent act of the carrier, whereby the passenger is injured; and such action must be brought within three years

ing complaint and sustaining the Appeal from judgment dismissdefense of the statute of limitations, and from order demurring motion for a new trial on the

minutes.

Plaintiff brought this action to recover damages for an alleged breach of an agreement between the parties whereby defendant contracted to carry plaintiff from Herkimer to Mohawk. The gist of the action is the injury to the person of plaintiff by reason of the unfitness of the car used and the dangerous proximity of telegraph poles to defendant's truck whereby, or by reason whereof, plaintiff was struck and injured by a telegraph pole while on the car. of action occurred June 23, 1879, and the action was commenced in March, 1883, more than three year thereafter.

The cause

The defence interposed was the

three years statute of limitations, as prescribed by sub-division 5 of 383, code civ. pro.

A. B. Steele, for applt.
S. Earl, for respt.

Held, No error. Without such contract the person complaining may have been a trespasser or wrongfully upon defendant's car. Hence the contract is an important element in the right to recover, but only as inducement and not as substance. The real ground of action is the tort or wrongful act of defendant whereby plaintiff is injured while rightfully there, and in default of the duty owing by defendant to plaintiff and every passenger. A breach of this contract to carry might have occurred for which a limitation of the right of action is prescribed by § 382, such as a refusal to carry the whole distance or a refusal to carry within a reasonable time. Those are not personal injuries, and would not be controlled by § 383. This must be deemed an action for negligence pure and simple, and under §383 code civ. pro. must be brought within three years. 48 N. Y. Ct. Rep. 44 affirmed in 93 N. Y. 522, applies, whether the form of action was, as in this case, for a breach of the contract, or simply for the negligence in the discharge of a duty owing to plaintiff, whereby he suffered personal injuries. In either case the injuries were personal and wholly due to the negligence of defendant.

CONTRACT.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

John F. Holcombe, respt., v. Kneeland J. Munson et al., applts. Decided Jan., 1885.

In March H. entered into a written contract with M. & L., to cut the timber on certain lands, turn it into coal and deliver it at a certain railroad to cars to be furnished by M. & L. In April L. sold out his interest to another. In May M. said to H. that they would not carry out the contract, and would take the consequences. In an action by the assignee of H. upon the ground that H. had been prevented from performing, Held, that as no tender was shown there could be no recovery; that L. was not bound by the statements of M. made after L. had sold out his interest in the contract.

A verbal addition to a written contract which fixed the amount of goods to be delivered thereunder, said amount being over fifty dollars in value, no part thereof having been delivered and nothing having been paid thereon, is void and there can be no recovery upon the verbal agreement.

In March 1880, one George P. Holcombe, plaintiff's assignor, entered into a tered into a written agreement with defendant Munson, and the other defendant, Landon, by which he agreed to take charge of and cut, coal and deliver all the timber on certain lots of land belonging to defendants, the charcoal to be delivered at a railroad to cars to be furnished by defendants; for this Geo. P. Holcombe was to receive certain sums per bushel. Under this clause the first cause of action was laid. The agreement

Opinion by Boardman, J.; Hardin, P. J., and Follett, J., concur.

fendants would pay Geo. P. Holcombe twelve dollars per hundred bushels for good, merchantable