author: Pound, J. Crane, J.

text:
    The People of the State of New York ex rel. Burd R. Atkins, Respondent, v. Edgar S. Jennings, as Warden of the State Prison at Auburn, Appellant.
    Habeas corpus — prisoners — effect of commutation by Governor of determinate to indeterminate sentence — procedure upon violation of condition of commutation — condition that he shall not commit another felony violated by commission of felony in another State ■ — • proof of commission of larceny without proof that act would constitute felony in this State insufficient to show violation — entire question of right to discharge or liability to recommitment before court on habeas corpus — breach of condition must be established to justify recomitment — right to recapture not affected by expiration of full term for which commuted prisoner had been sentenced.
    1. Commutation, by the Governor of a determinate to an indeterminate sentence does not entitle the prisoner to his immediate discharge but he is enabled thereby to apply therefor to the State Board of Parole. (Prison Law, § 214; Cons. Laws, ch. 43.)
    2. The procedure under sections 215-217 of the Prison Law for declaring a paroled prisoner delinquent, does not apply to the case of one who has become an escaped convict by violating the condition of Ms commutation. His rights are defined by sections 696 and 697 of the Code of Criminal Procedure and he may not be retaken merely as a delinquent paroled prisoner by order of the Parole Board.

      3. A prisoner whose sentence has been commuted by the Governor on condition that he shall not commit another felony is properly shown to be an escaped convict, who may be recaptured without a new award of execution and confined under the original judgment, by proof that he has committed a felony in another State. A contention that conviction of felony outside the State of New York does not constitute a breach of the condition imposed by the Governor in his commutation cannot be sustained.
    4. Where, however, the record of a hearing on return to a writ of habeas corpus shows merely that the relator, a conditionally commuted prisoner, had committed larceny in another State and there is nothing to show that the act constituting such offense would be a felony if done in this State, the record fails to establish a violation of the conditional commutation.
    5. Although the proper procedure to be followed with one charged with violation of a conditional commutation is indicated by sections 696 and 697 of' the Code of Criminal Procedure, where the person so charged comes into court on a writ of habeas corpus, granted on his own application, he submits to the court the whole question of his right to a discharge or his liability to a recommitment. On this hearing the defendant may also produce evidence of all the facts which might justify him in holding the relator, but breach of condition must be established to justify a recommitment.
    6. A contention that a conditionally commuted prisoner who violates the conditions of his commutation may not be recaptured after the expiration of his full term cannot be sustained. An escaped convict may not go free merely because he avoids arrest until the expiration of the term for which he was sentenced. (People ex rel. Kohler v. Kidney, 183 App. Div. 921; affd., 223 N. Y. 666, distinguished.)

      People ex rel. Atkins v. Jennings, 222 App. Div. 97, affirmed.
    (Submitted March 26, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 25, 1927, which reversed an order of Special Term dismissing a writ of habeas corpus, sustained the writ and directed the discharge of the relator from custody.

      Albert Ottinger, Attorney-General (Almon W. Burrell of counsel), for appellant.

      Burd R. Atkins, respondent in person.
   Pound, J.

On the 45th day of March, 1905, relator, having been convicted of manslaughter, first degree, in the Supreme Court, Genesee county, was sentenced to be imprisoned in the State Prison at Auburn for the determinate term of twenty years. This term would expire on or about the 15th day of March, 1925, subject to earned commutation for good behavior.

The Constitution of the State of New York (Art. IV, §5) provides: “ The Governor shall have the power to grant * * * commutations * * * after conviction * * * upon such conditions and with such restrictions and limitations as he may think proper * * . This power is not subject to legislative limitations.

On or about May 22, 1914, relator’s sentence was commuted by the Governor to an indeterminate term of nine years, two months and five days minimum, to twenty years maximum, upon the express condition that if the said Burd R. Atkins shall hereafter be convicted of any felony, committed during the period between the day of his discharge by reason hereof and the date of the expiration of the full term hereby commuted, he shall be deemed an escaped convict. With respect to the said commuted term and in addition to the penalty which may be imposed for the felony committed during the period aforesaid he shall be compelled to serve in the prison or penitentiary in which he may be confined for such felony, or, if not confined therefor in- any prison or penitentiary, in the Clinton State Prison for the portion of the term hereby commuted now remaining unserved without deduction or commutation for good behavior. He was discharged from prison by the State Board of Parole on his application on June 2, 1914. It does not appear that his sentence was commuted because he had earned a commutation and was allowed to go outside the prison walls on parole under the provisions of section 242 of the Prison Law applicable to earned commutations. Such may have been the fact but the record does not disclose it.

Relator left the State of New York in 1915 and went to Ohio. In 1924 he was convicted of the crime of larceny in the State of Michigan before the expiration of the maximum term of his sentence, and sentenced to imprisonment and imprisoned in the Michigan State Prison for a term of from two to five years. On or about October 30, 1926, after the expiration of the term of the original sentence, on his discharge from the Michigan prison, he was brought back to the State of New York as a fugitive from justice subject to interstate rendition. While it does not appear that the rendition proceedings were regular, he was in fact brought into the jurisdiction of this State. (Ker v. Illinois, 119 U. S. 436.) He was then detained by the warden under the original judgment of conviction for the unexpired term of the original sentence. He sued out a writ of habeas corpus. In his petition he set forth that he is held under color of a fracture of the conditional commutation, having seized his body without due process of law after the expiration of the original sentence. The return set forth the original judgment, the conditional commutation, the release, the subsequent conviction and the further allegation that the relator had been, on November 8, 1926, declared delinquent by the Board of Parole for State Prisons as provided by section 217 of the Prison Law. The relator admits his original conviction and his conditional commutation. He denies that he was discharged, on parole and that he has violated the conditions of his commutation. The Special Term held that the change from a definite sentence to an indefinite sentence presupposed the implied condition that the convict would be released under the jurisdiction of the Board of Parole, dismissed the writ and remanded the prisoner. The Appellate Division reversed and ordered his discharge.

The change from a determinate to an indeterminate sentence did not entitle the prisoner to his immediate discharge. Some authority had to fix the date thereof. He was thereby enabled to apply therefor to the State Board of Parole. (Prison Law [Cons. Laws, ch. 43], § 214.) Clearly that was what the Governor had in contemplation when he commuted the sentence; otherwise he would have ordered the discharge of the prisoner forthwith.

Whether the Board of Parole in discharging relator -attached other conditions to his release than those contained in the commutation of sentence does not appear. In the view that we take of the case it is immaterial whether it did or did not, or whether it had power thus to limit the conditions of the commutation. If relator had been discharged as a paroled prisoner, subject to the jurisdiction of the Parole Board, he would be allowed to go upon parole outside of the prison walls, onlyo“ upon such terms and conditions as said board shall prescribe, but to remain, while so on parole, in the legal custody and under the control of the agent and warden of the State prison from which he is so paroled ” until the expiration of his maximum term or his absolute discharge. He might be declared delinquent for violation of his parole, arrested and imprisoned for a period equal to the unexpired maximum of his sentence at the time of such delinquency. (Prison Law, §§ 215-217.) On the hearing it was stated that relator was declared delinquent by the Parole Board for failure to report on June 21, 1915, but I find nothing in the record to establish that fact. In any event he was declared delinquent on November 8, 1926, after his recapture and a hearing before the Board, for violating the conditions of his commutation. The earlier so-called delinquency was not the cause then assigned for his recapture.

This procedure under the provisions of the Prison Law, with its implication of wide discretion in the Parole Board in declaring delinquency, does not apply to the case of one who has become an escaped convict in the eyes of the law by violating the condition of his commutation. His rights are more explicitly defined. (Code Crim. Pro. §§ 696, 697.) He may not be retaken merely as a delinquent paroled prisoner by order of the Parole Board.

The question remains whether relator was properly shown to be an escaped convict who might be recaptured without a new award of execution and confined under the authority of the original judgment. (Penal Law, § 1693; Code Crim. Pro. § 696; Haggerty v. People, 53 N. Y. 476.) The proofs taken at the hearing were informal in their character. We will, however, for the purposes of this proceeding, assume that the relator was convicted of a felony in Michigan although the return merely alleges a conviction of larceny. The point is made that conviction of felony outside the State of New York does not constitute a breach of the conditions imposed by the Governor in his commutation.

A felony is a crime which is or may be punishable by death; or imprisonment in a State prison. (Penal Law, § 2.) The question whether the consequence of any prior conviction under Penal Law, section 2189, relative to indeterminate sentences for felonies is confined to convictions in this State was expressly reserved in People v. Gutterson (244 N. Y. 243, 251). It has been held that the provision of the Revised Statutes that no person sentenced upon a conviction of felony shall be competent to testify in any case, related only to a conviction in this State. (Sims v. Sims, 75 N. Y. 466.) The decision was put squarely on the ground that the provision is found in that part of the Revised Statutes which relates to crimes and their punishment, and is in the nature of an additional penalty [imposed by the State of New York] consequent upon the sentence.” The conditional commutation is not a part of the criminal law of the State. It is an act of grace and we may not infer that the Governor intended to allow the prisoner, released on condition that he shall not commit a felony, to cross the State fine, commit felonies there and be subject only to the laws of the sister State. Good behavior, although determined to some extent by local standards, is not a matter of geography to that extent.

With greater force, it is urged that crimes may be felonies in other States which are not felonies in New York within the meaning of the commutation. Relator, it is said, was convicted of larceny. In this State petit larceny is a misdemeanor. The same acts may be a felony elsewhere. Stealing property of the value of more than fifty dollars was in New York, prior to Laws of 1927, chapter 679, a felony punishable by a term not exceeding five years. (Penal Law, §§ 1296, 1297.) Now, if the property is of the value of one hundred dollars or less, the offense is petit larceny. (Penal Law, § 1298.) If the offense for which relator was convicted would be cognizable by our laws as a misdemeanor or not at all, it cannot be included in the standard of crime that the Governor had in mind when the sentence was commuted. The record before us is a blank on the subject. We do not know the nature of the offense for which relator was convicted and we do not know that the acts constituting such offense would be a felony if done in New York.

The record, therefore, fails to establish the violation of the conditional commutation.

The proper procedure to be followed is indicated by the Code of Criminal Procedure, §§ 696, 697. One charged with violation of a conditional commutation should be taken before a magistrate on a warrant issued on a complaint and given an opportunity to show cause why his commutation should not be adjudged void and he remanded to the place of his former imprisonment for the unexpired term of his sentence. The order to show cause should set forth the facts which constitute the violation of the commutation. He should be permitted to plead to the order in writing and he might then attack its legal sufficiency. He would be entitled to a jury trial if he denied any material fact. If the facts were fully set forth in the relator’s petition so that it uncontrovertibly appeared that relator had violated the condition of his commutation and that the inevitable consequences of a hearing would be his recommitment, such hearing might be dispensed with as an idle formality affecting no substantial right. “ He was before the court on a writ of habeas corpus granted on his own application, and he thereby submitted to the court the whole question of his right to a discharge or his liability to a recommitment.” (People v. Burns, 77 Hun, 92; affd., on opinion below, 143 N. Y. 665; People ex rel. Brackett v. Kaiser, 209 App. Div. 722.)

The two methods are not entirely in conflict. Habeas corpus is the method pursued by the prisoner, while the order to show cause is the proceeding against him, but hearing there must be and breach of condition established. The Code of Criminal Procedure indicates the regular and orderly procedure which protects the captive from oppression. Yet the defendant herein might have produced evidence of all the facts on this hearing which might justify him in holding the relator. The record is lacunose in this regard. The admitted facts are insufficient to justify a recommitment. If the same facts and no additional facts were produced before a court or magistrate they would not be a sufficient basis for an adjudication against the relator. On a question so vitally affecting personal liberty, the record should establish that the right to remain outside prison walls had been forfeited. Nothing should be left to surmise or conjecture.

Relator’s original main point that he may not be recaptured after the expiration of his full term is without substance. An escaped convict may not go free merely because he avoids arrest until the expiration of the term for which he was sentenced. Escape interrupts service, and the time elapsing between escape and retaking will not be taken into account or allowed as a part of the term. (Anderson v. Corall, 263 U. S. 193.)

In People ex rel. Kohler v. Kidney (183 App. Div. 921; affd., 223 N. Y. 666) it was held that under Prison Law, section 217, as it then read, a delinquent paroled prisoner could not be retaken unless his delinquency-had been declared by the Board of Parole before the term of his original sentence had expired. This case has no application to one who is retaken as an escaped convict for violation of a conditional commutation.

On the facts shown in this proceeding defendant did not lawfully hold relator in bis' custody under the original commitment. He was, therefore, entitled to his discharge.

The order should be affirmed.

Crane, J.

(dissenting). I dissent. When it appeared that the relator was convicted and sentenced for larceny to State prison in Michigan for a possible five years, it can hardly be that the crime was a misdemeanor if committed here. If it were the prisoner could have shown it. He remained silent although he had a hearing.

Cardozo, Ch. J., Lehman, Kellogg and O’Brien, JJ., concur with Pound, J., Crane, J., dissents in memorandum; Andrews, J., not sitting.

Order affirmed.


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    Henry D. Sayer, as Industrial Commissioner of the State of New York, Respondent, v. Gerardus M. Wynkoop, Appellant.
    Money had and received — principal and agent — trust — intention of owner controlling on question whether title to moneys has been transferred and a trust created — checks sent to insurance broker for payment of premiums due on policy in State Insurance Fund — moneys received by broker either as trustee or agent — State may recover same in action for money had and received.
    1. The intention of the owner, and not that of the receiver, is controlling upon the question whether title to moneys has been transferred and a trust has been created. There must be an assumption of the trust duty by the receiver, but that may arise through implication as well as through expression. No particular form of words is required either to create the trust or to indicate that a trust duty has been assumed.
    2. Where a bill against an insolvent corporation for premiums past due the State Insurance Fund and unpaid was sent to defendant who, as insurance broker, had obtained for the corporation insurance in the State Insurance Fund against liability under the W orkmen’s Compensation Law, and defendant wrote the receivers of the insolvent corporation stating he had received the bill; that the State claimed a preference and that if they would give assurances that the bill would be satisfied better rates of insurance could be obtained during operation by the receivers, whereupon the receivers, having applied for and obtained permission of the court, sent defendant five checks payable to defendant under his business name each bearing on its face a statement to the effect that it was on account of the indebtedness to the State Insurance Fund and was payable only when the receipt on the reverse side was dated and signed by the payee which receipt read “ Received * * * the amount shown on face of this voucher in full of account as stated thereon,” and defendant indorsed each cheek as required and received the proceeds, it must be held that it was the intention of the drawers of the checks to transfer an irrevocable title to the moneys paid and the intention of the defendant to receive the moneys either as trustee or agent of the State Insurance Fund. And it must also be so held as to a cheek sent by the corporation before insolvency on account of “ Earned Premium, Policy of State Fund No. 22878-B, subject to final cheeking,” bearing the same statement upon the face as to the receipt to be signed as appeared upon the receiver’s checks and a similar receipt on the back. The State, therefore, in an action for money had and received, was entitled to recover the sums paid to the defendant.

      Sayer v. Wynkoop, 220 App. Div. 761, affirmed.
    (Argued April 5, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 3, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Daniel Mungall and Kenneth K. MacKenzie for appellant.
    Plaintiff has no cause of action against the defendant. (Erb v. Banco Di Napoli, 243 N. Y. 45; Montgomery v. Albany City Bank, 7 N. Y. 459; Hall v.
      Lauderdale, 46 N. Y. 70; Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Bulger v. Rosa, 119 N. Y. 459; McDonald v. Met. St. Ry. Co., 167 N. Y. 66.)

      Albert Ottinger, Attorney-General (Cornelius J. Sullivan of counsel), for respondent.
    The court properly directed a verdict in plaintiff’s favor. (Lawrence v. Fox, 20 N. Y. 268; Seaver v. Ransom, 224 N. Y. 233; Vrooman v. Turner, 69 N. Y. 280; Fosmire v. Nat. Surety Co., 229 N. Y. 44). The plaintiff’s judgment can also be sustained on the theory of money had and received. (Roberts v. Ely, 113 N. Y. 128; Title Guarantee & Trust Co. v. Haven, 214 N. Y. 468.)
   Kellogg, J.

The defendant, Gerardus M. Wynkoop, conducted business as an insurance broker under the name of Wynkoop Service. On August 16th, 1916, the defendant, acting for a corporation known as Metropolitan By-Products Company, Inc., obtained a policy of insun anee in the State Insurance Fund, insuring the company against liability under the Workmen’s Compensation Law. On October 24th, 1916, the defendant received a check for $1,000 from the By-Products Company on account of premiums due upon the policy and remitted the same to the State Fund. On April 19th, 1917, the defendant received a further check for $2,926.60 from the ByProducts Company on account of premiums due. This amount was never remitted to the State Fund. The By-Products Company became bankrupt and upon the 19th day of November, 1917, receivers were appointed, in bankruptcy proceedings, to take over its assets. At this time there was owing to the State Fund by the By-Products Company the sum of $22,740.41. The receivers employed the defendant to continue the insurance. Thereafter between January 29th, 1918, and May 15th, 1918, the receivers of the By-Products Company sent five checks aggregating $10,500, payable to “ Wynkoop Company ” or “ Wynkoop Service,” to the defendant on account of premiums due the State Fund. The defendant indorsed the checks and received the proceeds thereof. No part of the moneys thus received was paid over to the Fund. Accordingly, this action was brought by the Industrial Commissioner to recover the sum of $13,426.60, which had thus been paid to the defendant on account of premiums and which the defendant had neglected and refused to remit to the State Fund. It having appeared upon the trial that the defendant had paid one hundred dollars of the total sum thus collected and retained, a verdict for $13,326.60, with interest, was directed for the plaintiff, and the plaintiff had judgment for that amount.

It is obvious that a person, who delivers property or moneys to another with instructions to pay them to a third person, may intend, upon the one hand, to make the receiver a mere custodian or agent for himself; or, upon the other, to constitute him a trustee for the third person. If the former intention be his, the third person will have no right of action to recover the moneys; if the latter be his intention, a cause of action for money had and received will arise against the receiver of the moneys and in favor of such third person. It will thus arise, not because of the express promise of the receiver to pay, but because of property rights acquired by the third person, to enforce which the law will imply a promise on the part of the receiver to pay over. (Williston on Contracts, sections 348, 349; National Bank v. Grand Lodge, 98 U. S. 123; Mellen v. Whipple, 67 Mass. 317.) " In such a case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets, than on the express promise.” (Per Mr. Justice Strong in National Bank v. Grand Lodge, supra.) Moreover, a third situation may arise. The receiver of the moneys may be, or pretend to be, the agent of the third person, to receive them. In that event, when the moneys are received, the legal as well as the equitable title thereto will pass to the third person, who may then bring suit to recover the amount paid. (Williston on Contracts, sec. 352.) These general principles are well settled and readily understood. Difficulty arises only when application of the principles to a given state of facts is sought to be made.

Manifestly, if the owner of moneys employs another as a mere messenger to carry them to a designated consignee, no trust is created and no right of action accrues. (Bigelow v. Davis, 16 Barbour, 561.) Again, the owner may deposit the moneys with a banker with instructions to apply them in satisfaction of the debt of a third person. In that event, the conventional relationship of debtor and creditor between the banker and the depositor is created, coupled with an agency on the part of the banker to pay the debt, which is revocable at the will of the depositor. (Ætna National Bank v. Fourth National Bank, 46 N. Y. 82; Erb v. Banco di Napoli, 243 N. Y. 45.) Where, however, the owner delivers the moneys to another upon an agreement that they will be paid to a third person, such third person acquires an equitable interest entitling him to have a recovery in an action for money had and received. (Miller v. Billingsly, 41 Ind. 489; Sweeney v. Houston, 243 Penn. St. 542; Johnson v. Collins, 14 Iowa, 63; Goodwin v. Bowden, 54 Me. 424; White v. Hunt, 64 N. C. 496; Rogers Locomotive Works v. Kelley, 88 N. Y. 235; Gilman v. McArdle, 99 N. Y. 451; Matter of Carpenter, 131 N. Y. 86.)

In Rogers Locomotive Works v. Kelley (supra) moneys were deposited by a corporation with a firm of bankers with instructions to apply them in payment of interest coupons falling due on the bonds of another corporation, the payment of which had been assumed by the depositor. The depositor took from the bankers a receipt acknowledging the deposit of the moneys “ in trust to apply the same to pay the coupons. It was held by the court that there was an absolute and irrevocable appropriation of the moneys to the payment of the coupons; that the depositor retained no interest; that the bankers became trustees of the fund for the benefit of the bondholders. In Matter of Carpenter (supra) an owner delivered certain overdue promissory notes to another person upon the promise of that person that he would collect the same and pay the proceeds to the petitioner. It was held that a trust in favor of the petitioner was created.

In all these cases permitting a recovery by the third person there appears to have been an express promise on the part of the person receiving the moneys to pay them over, or an acknowledgment by him that the moneys were received to be held in trust for such third person. However, it is apparent that the intention of the owner, and not that of the receiver, is controlling upon the question whether title to the moneys has been transferred and a trust has been created. True, there must be an assumption of the trust duty by the receiver, but that may arise through implication as well as through expression. No particular form of words is required either to create the trust or to indicate that a trust duty has been assumed. To constitute a trust there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.” (Andrews, J., in Beaver v. Beaver, 117 N. Y. 421, at p. 428.) “ Of course particular words, and least of all the specific word ' trust,’ are not necessary to create a trust.” (Hiscock, J., in Title Guarantee & Trust Co. v. Haven, 214 N. Y. 468, at p. 481.) In McKee v. Lamon (159 U. S. 317, at p. 322) the court said: There can be no doubt of the general proposition that where money is placed in the hands of one person to be delivered to another, a trust arises in favor of the latter, which he may enforce by bill in equity, if not by action at law. The acceptance of the money with notice of its ultimate destination is sufficient to create a duty on the part of the bailee to devote it to the purposes intended by the bailor.”

The case of Hall v. Marston (17 Mass. 574) is very much in point. Bradford was the debtor of the defendant Marston in the sum of $1,300 and of the plaintiff Hall in the sum of $400. While in Europe, Bradford remitted to Marston a bill of exchange for $1,000, with instructions to pay to Hall $200 and apply the balance upon his own debt. Marston received the moneys upon the bill of exchange but refused to make payment to Hall. It was held that Hall, in an action for money had and received, might recover the sum of $200 from Marston. The court said: But the silence of the defendant, and his receiving the contents of the bill, must be construed to be an assent to pursue his instructions, and to receive the money for Hall as well as for himself, so that when it was paid him, 200 dollars was legally Hall’s money, and was afterwards improperly converted by the defendant to his own use.” Under these authorities, if the Metropolitan By-Products Company and the receivers in bankruptcy of that company paid the moneys to the defendant with an intent to transfer title thereto, either to the defendant as trustee for the State Fund, or directly to the State Fund as the principal of the defendant, the plaintiff has a right of action to recover the moneys paid.

In detail, the facts in relation to the payment of $10,500 to the defendant by the receivers of the Metropolitan By-Products Company were as follows:

The State Insurance Fund sent to the defendant a bill against the Metropolitan By-Products Company for $22,740.41 on account of premiums past due and unpaid. Upon its receipt on December 5th, 1917, the defendant wrote the receivers of the By-Products Company, stating that he had received the bill and that he was informed by the State Insurance Fund that it claims preference in payment.” The bill was attached to the letter. The defendant also stated that he had previously obtained a low premium rate for the insurance taken out by the ByProducts Company; that if he was compelled to negotiate new insurance to cover the operation of the receivers he would be required to pay a rate several times greater; that if assurances can be given that payments will be made by the receivers from time to time until the amount due for back payments is paid,” a substantial saving in future premiums could be made.

It will be observed that the State Insurance Fund informed the defendant that it claimed a preference upon its bill rendered. From this fact it must be concluded that the State Insurance Fund was well aware of the bankruptcy of the By-Products Company. Such being the case, it could not have intended to appeal to the defendant as an agent for the bankrupt company. All the assets of the company were possessed by its receivers in bankruptcy and to them alone could any appeal be successfully made. Its purpose in sending the bill to the defendant, with a statement of its claim to a preference, clearly must have been to procure the aid of the defendant in obtaining payment from the receivers. The defendant evidently considered that his aid had thus been requested, for at once he wrote the receivers, attaching the bill received, stating that the State Fund regarded itself as entitled to a preference upon the claim therein made, and asserting that if they would give “ assurances ” that the bill would be satisfied, better rates of insurance might in future be had. The whole tone of the letter indicates that the defendant intended thereby to solicit for the State Insurance Fund the payment of its claim.

On December 20th, 1917, the receivers petitioned the Federal court, attaching to their petition the letter of the defendant with the bill of the State Fund against the By-Products Company thereto attached. They asserted that they could secure better rates if they were permitted to make payments from time to time of back premiums until the whole were paid, and asked for an order permitting this to be done. On the 26th day of December, 1917, the District Court made an order to the effect that payment of the indebtedness due and owing by Metropolitan By-Products Company, Inc.,' for premiums on Workmen’s Compensation Insurance in the State Fund of the State of New York * * * is a necessary and proper expense of the Receivers ” and directing that the receivers be authorized to make the payments.

The receivers thereafter drew and remitted to the defendant five checks payable to the defendant under the name of Wynkoop Company ” or “ Wynkoop Service.” The first check, for $1,500, bears on its face the statement “Acct. Compensation Insurance Accd. Comp. Ins.; ” the second, for $1,500, the statement “ a /c Compensation Insurance; ” the third, for $3,000, the statement On account of indebtedness to State Insurance Fund to November 19, 1917; ” the fourth, for $3,000, the statement “ On account of State Fund Ins.; ” the fifth, for $1,500, the statement “ Premium on account State Insurance Fund.” Each check, on its face, in print or in writing, bore this identical statement: “ The receipt on the reverse side of this voucher must be dated and signed by the person or firm in whose name it is drawn to render it payable by the bank or there must be attached the authority for any substitution.” On the reverse side of each check, in print or writing, appeared the following:

“ Received............191 of G. M. Moffett & C. R. Van Etten, Receivers of Metropolitan By-Products Co., Inc., the amount shown on face of this voucher in full of account as stated thereon.” In the case of every check the name of the payee therein, Wynkoop Company or Wynkoop Service, was written by the defendant beneath the printed or written receipt.

The purpose of the receivers in remitting the checks is plain to be seen. They were sent to the defendant in payment of a debt to the The defendant, the payee, in every instance was ivvYhsd to acknowledge the receipt of the moneys; to aeknov. that by his receipt of the moneys upon the checks fhe Btate Fund itself pro tanto received satisfaction of its g*. . The defendant signed the receipts which were exacted and tWf1 ■ -made the acknowledgments requested. From these gs the intention of the receivers to transfer an irrev óle title to the moneys paid, and the intention of the defendant to receive the moneys, either as trustee or agent for the State Insurance Fund, is made perfectly manifest.

Further proof appears to indicate the intent of the defendant to receive the moneys on behalf of the State Fund. On the 10th day of December, 1918, several months after the checks had been received, the defendant filed a petition in the Federal court for the purpose of obtaining an order directing the receivers to make further payments upon the indebtedness to the State Fund. In the petition he stated that he had received a bill for premiums rendered by the State Insurance Fund. In regard to the bill he said: “ The bill amounts to the sum of $45,067.01, but there is only due thereon the sum of $34,567.01 because of the fact that the sum of $10,500.00 has been paid on account.” Thus does he represent that the previous payments by checks of the stun of $10,500 to himself were in fact payments to the State. In regard to the proceedings which followed the filing of the petition he was asked this question: In the United States Court proceedings were you acting for yourself alone or were you acting for yourself and the State Fund? ” He answered: The State Fund and the Attorney-General both requested me to proceed, through a common counsel.”

In reference to the payment of $2,926.60, made by the Metropolitan By-Products Company, Inc., to the defendant under the name of the Wynkoop Company, less is known concerning the intention of the drawer and payee of the check than has been disclosed in reference to the payments made by the checks of the receivers. However, it appears upon the face of the check that it was drawn on account of “Earned Premium, Policy of State Fund t No. 22878-P, subject to final checking.” The same statement appears upon the face of the check, as to the receipt which ¿3 required to be signed, as appeared upon each of the receivers’ checks. Likewise, a similar receipt appears upon the back of the check. We think that sufficient is disclosed to indicate that the drawer of the check intended to transfer irrevocable title to the moneys drawn, and that the payee, the defendant, intended to receive the moneys as trustee or agent for the State Insurance Fund.

On the whole case, therefore, we think the State, in this action for money had and received, was entitled to recover the sums paid to the defendant, and the judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Property on Upper New York Bay in the Borough of Richmond. Charles W. Berry, as Comptroller of the City of New York, Appellant; Staten Island Railway Company, Respondent.
    New York city — condemnation proceedings — interest — notice — notice demanding payment of award within six months after modification of award by Appellate Division sufficient to continue running of interest.
    ■A written notice demanding payment of an award in condemnation proceedings, as modified by the Appellate Division, served upon the Comptroller of the city of .New York within six months after such modification, is served within six months “ after the date of the filing of the final decree ” within the meaning of section 981 of the charter of the city of New York (L. 1915, eh. 606), and interest continues to run. (Matter of City of New York, 209 App. Div. 662; affd., 239 N. Y. 524, followed.)

      Matter of City of New York ( Upper New York Bay), 223 App. Div. 731, affirmed.
    (Argued March 26, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 15, 1928, which reversed an order of Special Term denying a motion for an order directing the Comptroller of the city of New York to pay interest upon an award in condemnation proceedings and directed payment of interest upon an award made to the Staten Island Railway Company.

      George P. Nicholson, Corporation Counsel (Henry W. Mayo of counsel), for appellants.
    The respondent Staten Island Railway Company is not entitled to any interest on the award in question for the period between September 24,1925, and March 5, 1927, as no demand in writing was filed by the said respondent with the Comptroller of the city of New York as required by section 981 of the charter of the city of New York until March 5,1927. (Matter of City of New York [Gouverneur Slip Pier], 210 N. Y. 451; Matter of City of New York [Opening of Westchester Ave.], 217 App. Div. 381.) The fact that the Appellate Division reduced the awards in the final decree of the Special Term to a comparatively slight extent upon appeal by the city of New York from said final decree but without its consent and upon the express written consent of the respondent Staten Island Railway Company and the other moving parties does not entitle said parties to interest for the period during which no demand had been filed. (Matter of City of New York [East River Park], 209 App. Div. 662; 239 N. Y. 524; Matter of Cooper, 93 N. Y. 507; Matter of New York, etc., Ry. Co.
      v. Weber, 226 N. Y. 70.) The fact that the city of New York appealed to the Appellate Division and Court of Appeals from the final decree in the condemnation proceeding and that during the pendency of such appeals the Staten Island Railway Company was stayed from enforcing payment of the award, did not excuse said railway company from filing a proper written demand with the Comptroller of the city of New York between March 24, 1925, when the final decree was entered, and September 24, 1925 (which is the date six months after the entry of said final decree), as required by section 981 of the charter. (Edelmuth v. Prendergast, 142 App. Div. 785; Matter of City of New York [White Plains Road], 187 App. Div. 355.)

      Royal E. T. Riggs and A. S. Gilbert for respondent.
    The demand filed in this case was timely. (Matter of City of New York [East River Park], 209 App. Div. 662; 239 N. Y. 524; Matter of City of New York [Gouverneur Slip], 210 N. Y. 451; Fredericks v. City of New York, 44 App. Div. 274; Carpenter v. City of New York, 44 App. Div. 230; Matter of City of New York [Church Ave.], 91 App. Div. 553; Van Arsdale v. King, 155 N. Y. 325; Russia Cement Co. v. LePage, 174 Mass. 349; Matter of Westerfield, 61 App. Div. 413; Blanding v. Sayles, 49 Atl. Rep. 992; Pittsburgh, F. & W. Railway Co. v. Gillespie, 63 Me. 845.) The appeal of the city to the Appellate Division stayed the owner from any proceedings for the collection of his award, including the making of any demand for payment. (Matter of City of New York [White Plains Road], 187 App. Div. 355; Woodward Brown Realty Co. v. City of New York, 203 App. Div. 625.)
   Per Curiam.

The Greater New York Charter, in section 981 thereof, provides that interest upon all sums awarded in condemnation proceedings shall cease to run six months after the date of the filing of the final decree ” unless within that time demand therefor, in writing, be served upon the comptroller.” The decree made at Special Term, providing for an award to claimant for lands taken, was modified by the Appellate Division, which made a decree providing for an award in a lesser amount. Within six months thereafter the claimant served a written notice upon the Comptroller demanding payment of the amount awarded by the modified decree, with interest. In our judgment, the notice was served upon the Comptroller within six months after the date of the filing of the final decree,” and, therefore, interest upon the award has not ceased to run. This was the holding in Matter of City of New York (209 App. Div. 662; affd., 239 N. Y. 524).

The order should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman and Kellogg, JJ., concur; Andrews and O’Brien, JJ., not sitting.

Order affirmed.


author: Cardozo, Ch. J.

text:
    In the Matter of the Claim of Frank Raymond, Respondent, against the Estate of Andrew Davis, Deceased. William J. Doty, as Administrator, Appellant.
    Partnership — joint venture — liquidation — jurisdiction —■ profits of partnership or joint venture unknowable without liquidation of assets — deceased partner not chargeable with estimated value of shares taken as part of purchase price of land — real property in name of living partner a partnership asset — liquidation may be ordered by Surrogate as incident to allowance or rejection of claim of living against estate of deceased partner.
    1. The profits of a joint venture between a living and a deceased partner remain unknown and unknowable without a winding up of the business through a liquidation of the assets.
    2. The deceased partner is not chargeable with the estimated value of shares of stock in a corporation received as part of the purchase price of land where there is nothing in the record to suggest that he look them as the equivalent of cash. The shares were but a substitute for the land and were to be held like any other asset as a partnership investment, subject to an equitable lien for the repayment of advances made by either partner as a contribution to the capital.
    3. Real property held in the name of the living partner is also a partnership asset, and the fact that the payment therefor, made by the deceased partner, has been allowed to his estate as a credit to be deducted from the value of the shares of stock, simply frees the parcel from a lien for capital expenditures and leaves it to be divided between the partners according to their interests.
    4. Liquidation of the partnership may be ordered by a decree of the Surrogate as an incident to the allowance or rejection of a claim by the survivor to share as creditor in the assets of the estate of the deceased partner.

      Matter of Raymond v. Davis, 220 App. Div. 480, reversed.
    (Argued March 27, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1927, which modified and affirmed as modified a decree of the Chautauqua County Surrogate’s Court allowing in part the claim of the respondent herein against the estate of Andrew Davis, deceased.

      John Griffin for appellant.
    The plaintiff cannot maintain an action for any amount of the moneys received, until there is an accounting and an agreement by Davis to pay the amount found due upon the accounting. (Hollister v. Simonson, 36 App. Div. 63; Consolidated Machinery Co. v. Harper Machinery Co., 190 App. Div. 283; Belanger v. Dana, 52 Hun, 39.) The Surrogate’s Court did not have jurisdiction to try the claim. (Matter of Walker, 70 App. Div. 263; Hurlburt v. Durant, 88 N. Y. 121; Clark v. Highland, 88 App. Div. 392; Matter of Young Men’s Ch. Assn., 22 App. Div. 325; Matter of Smith, 129 N. Y. Supp. 911; Matter of Hanna, 121 Misc. Rep. 754; 208 App. Div. 813.)

      Nelson J. Palmer for respondent.
    The surrogate had jurisdiction to hear and determine this claim. (Code Civ. Pro. §§ 2510, 2681; Surrogate’s Court Act, § 211; Matter of Coombs, 185 App. Div. 312; Matter of Aldrich, 194 App. Div. 815; Matter of Herman, 178 App. Div. 182; 222 N. Y. 564; Matter of Malcomson, 188 App. Div. 600.)
   Cardozo, Ch. J.

Frank Raymond and Andrew Davis formed a partnership or joint venture in 1916 to deal in lands in Chautauqua county. The thought was that there were deposits of marl and lime which would permit a profit to be made if the lands were worked or sold. Raymond was to supply the knowledge and Davis the cash, the profits to be divided a third to one and two-thirds to the other. The project went forward on that footing. There were surveys and options and contracts and conveyances. One parcel, known as the Bremer property, paid for like the rest with money supplied by Davis, was left in Raymond’s name. Other parcels were conveyed to a corporation, the Bone Dry Lime Corporation, of which Davis was president, in return for cash and shares of stock. This was in March, 1918. The cash went to Davis, but it did not exceed $5,000, after allowance made for expenses incurred in consideration of the payment, if indeed it was as much. The shares, which went to Davis also, had a par value of $15,000, but their actual value was uncertain, and from whatever value they might yield, there would be need to deduct his payments for the land before the profit could be measured.

Davis died a few months later, in December, 1918, with the joint venture still subsisting. There is no evidence that an accounting had been asked for or refused. There is none of a disclaimer of a partnership relation. Raymond waited a year and a half, and then put in a proof of claim for upwards of $11,000. He framed his proof upon the theory that a third of the gross assets, and not merely a third of the profits, was to be his share of the common venture. There were three trials before a surrogate or a county judge with varying results. On the third trial a decree was made for the allowance of the claim to the extent of $5,000. The Appellate Division upon an appeal by the executrix cut the claim still lower. By the findings of that court, Raymond’s share was a third interest in the profits of the venture, and not in the gross assets. Davis, according to the findings, had received $5,000 in cash and shares of stock of the value of $15,000, $20,000 in all. He had expended, however, for principal and interest, $15,231.95 in taking title to the lands. This left a net profit of $4,768.05, of which a third is $1,589.35. The recovery due to Raymond was fixed at that amount with interest. In addition he was held to have the right to retain the Bremer property free from any claim on the part of the estate.

The profits of the joint venture remain unknown and unknowable without a winding up of the business through a liquidation of the assets (Crater v. Bininger, 45 N. Y. 545, 548; Bank of B. N. A. v. Delafield, 126 N. Y. 410, 415; Wilcox v. Pratt, 125 N. Y. 688; Belanger v. Dana, 52 Hun, 39, 43). Liquidation there has never been. Davis was not chargeable with the estimated value of the shares when issued as if in taking them he had received what was equivalent to cash. There is nothing in the record to suggest an understanding that he took them on that basis. The shares were not cash, but a substitute for the land, and were to be held like any other asset as a partnership investment, subject to an equitable lien for the repayment of advances made by either partner as a contribution to the capital (Partnership Law [Cons. Laws, ch. 39], §§ 40, 71; Pollock on Partnership, p. 118). Not till the advances had been repaid either through a sale of shares or otherwise could profits be determined (Chapin v. Learnard, 246 N. Y. 158; Id. 629, 630). Not till then were the shares or the proceeds to be ratably apportioned. The shares are worthless to-day, for the corporation has become insolvent. We find no basis for a holding that the executrix is to be charged with their estimated value in the heyday of gladsome expectation when the venture was still young. If the loss is to be attributed to her inaction or misconduct, the fact has not been proved.

Liquidation would be incomplete, however, though the shares were accounted for as money. The Bremer property too is an asset of the partnership, though held in Raymond’s name. Instead of treating it as such an asset, he has incumbered it with a mortgage and claims it as his own. The decision of the Appellate Division upholds him in this assertion of title and dominion. We hold a different view. True, indeed, it is that the payment made by Davis in the purchase of the Bremer parcel has been allowed to his estate as a credit to be deducted from the value of the shares of stock. The only effect of that deduction is to free the parcel from a lien for capital expenditures, and leave it to be divided between the partners according to their interests. A balance cannot be struck until this asset has been liquidated.

There remains a question of jurisdiction and procedure. Liquidation may be ordered by a decree of the surrogate as an incident to the allowance or rejection of a claim to share as creditor in the assets of the estate. Only by such relief can there be complete justice between the parties without oppressive expense or harrowing delay. A Surrogate’s Court has juris diction “ to administer justice in all matters relating to the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding, or between any party and any other person having any claim or interest therein who voluntarily appears in such proceeding, or is brought in by supplemental citation, as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires ” (Surrogate’s Court Act, § 40). Early decisions were made upon the basis of a different grant of power. They deny the competence of a surrogate to decree the winding up of the business of a partnership, though liquidation be a necessary preliminary to the determination of a controversy lawfully before him (Thomson v. Thomson, 1 Bradf. 24, 35; Matter of Irvin, 87 App. Div. 466, 470). We must hold them superseded by the provisions of the statute. An amendment in 1921 emphasizes the call for a liberal construction. Till then, the general grant of jurisdiction had at times been read as limited by specific grants of jurisdiction as to enumerated subjects (Matter of Mondshain, 186 App. Div. 528; Matter of Holzworth, 166 App. Div. 150; 215 N. Y. 700). The amendment gives notice that the powers that are specific shall hereafter be read as being in addition to and without limitation or restriction on ” the powers that are general (Matter of Van Buren v. Est. of Decker, 204 App. Div. 138; Matter of Haigh, 125 Misc. Rep. 365, 367, 368; cf. Matter of Kenny, 92 Misc. Rep. 330). Concentration of jurisdiction as to decedents’ estates ” (per Foley, S., in Matter of Haigh, supra) is the purpose clearly revealed in the statutory scheme. The State has empowered surrogates in unmistakable language, and it is not the function of the courts to discover or to fashion reasons for thwarting the manifest policy ” (per Thomas, J., in Matter of Coombs, 185 App. Div. 312, 314). To remit the claimant to another forum after all these advances and retreats, these reconnaissances and skirmishes, would be a postponement of justice equivalent to a denial. If anything is due him, he should get it in the forum whose aid he has invoked.

The order of the Appellate Division should be reversed, with costs to abide the event, and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion.

Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur; Andrews, J., not sitting.

Ordered accordingly.


author: Pound, J.

text:
    Philip Turner, Appellant, v. Edison Storage Battery Company, Respondent.
    Pleading — misjoinder — election — complaint showing on its face lack of privity of contract cannot state cause of action for breach of warranty — certified question not properly before Court of Appeals may not be answered.
    1. A complaint alleging that the defendant is a manufacturer of storage batteries and that plaintiff purchased from a dealer a battery manufactured by the defendant negatives a sale by the defendant to the plaintiff and any contractual relation between them. There can be no warranty where there is no privity of contract. A cause of action, therefore, for breach of warranty, either express or implied, is not, and cannot be stated.
    2. Plaintiff should not be compelled to elect between a cause of action and no cause of action. Where only one cause of action is alleged, the question certified whether the causes of action alleged in the complaint may properly be united under section 258 of the Civil Practice Act may not be answered as it is not properly before the court on this appeal.

      Turner v. Edison Storage Battery Co., 222 App. Div. 826, appeal dismissed.
    (Argued March 27, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 13, 1928, which reversed an order of Special Term denying a motion by defendant for a direction to plaintiff to elect as to his cause of action and to serve an amended complaint and granted the motion.

      Ezra B. Kotcher and Benjamin Wieser for appellant.

      Roger Hinds for respondent.
   Pound, J.

The complaint alleges that the defendant is a manufacturer of storage batteries and that plaintiff purchased from the Fisher Hardware Company a battery manufactured by the defendant. Plaintiff attempts to state two causes of action against the defendant, one in negligence (MacPherson v. Buick Motor Co., 217 N. Y. 382) and one for breach of warranty. In pleading the second cause of action he alleges that defendant warranted the battery to be safe, that he relied on the warranty, and that injury was sustained by breach of warranty. Warranty is an incident of a sale. (Levis v. Pope Motor Car Co., 202 N. Y. 402; Pers. Prop. Law [Cons. Laws, ch. 41], § 93.) The complaint negatives a sale by the defendant to the plaintiff and any contractual relation between the plaintiff and the defendant. There can be no warranty where there is no privity of contract. A cause of action for breach of warranty, either express or implied, is not, and cannot be, stated. (Chysky v. Drake Brothers Co., 235 N. Y. 468, 472.) The goods may have been sold to the Fisher Hardware Company with a so-called written and continuing warranty for the benefit of the ultimate purchaser. A cause of action for deceit conceivably might arise from such a transaction (Roberts v. Anheuser Busch Brewing Assn., 211 Mass. 449) or for negligent words (International Products Co. v. Erie R. R. Co., 244 N. Y. 331), but no suggestion is made of an attempt to plead such a cause of action.

The motion is to require plaintiff to elect between causes of action claimed to be inconsistent (Civ. Prac. Act, § 258) and to strike out the cause of action not so elected (Rules Civil Practice, 102). The court has said, “ to make out a misjoinder it is not necessary that the caused should have been well stated. It is enough that there was an attempt to state them.” (Cardozo, J., in Jacobus v. Colgate, 217 N. Y. 235, 247.) The argument is, therefore, made that the motion to compel an election was properly granted without regard to the sufficiency of the allegations of warranty. But the rule has never been applied to a case where it appears on the face of the complaint that the pleading of one of two causes of action is so inccntrovertibly bad that the mere statement reveals its insufficiency without argument.

By no theory of legal liability can plaintiff completely and sufficiently state the cause of action for breach of warranty that he has attempted to state. The nature of any other claim is not pointed out and cannot by reasonable and fair intendment be implied, nor would plaintiff under his pleading be entitled to give the necessary evidence to support another claim. The cause of action pleaded is wholly bad. (Clark v. West, 193 N. Y. 349, 362.) The motion is to compel an election between causes of action. Plaintiff should not be compelled to elect between a cause of action and no cause of action. He may attempt to plead a new and wholly different cause of action in place of the one he has attempted to plead. The question of misjoinder may well await an answer until it becomes essential to the decision.

The question certified: "Are the causes of action as alleged in the complaint herein properly united under section 258 of the Civil Practice Act? ” cannot be answered as the answer thereto is not necessary to the proper determination of the appeal.

The appeal should be dismissed, without costs.

Cardozo, Ch. J., Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Appeal dismissed.


author: Crane, J.

text:
    Sarah E. Vincent, Respondent, v. William H. Rix et al., Defendants, and Violet Putnam et al., Appellants. Sarah E. Vincent et al., Respondents, v. Julia A. Putnam, as Executrix of Julia Rix, Deceased, et al., Appellants.
    Will — decedent’s estate — powers — gift — residue of estate given to wife to be her absolute property but anything remaining at her death to go to heirs and next of kin of testator — power of widow to dispose of property ceased with her death — widow without power to give securities to her relatives in view of approaching death — gift incomplete where donor handed securities to her lawyer with instructions to give them to her grandniece but the lawyer after placing them in his safe subsequently returned them to safe deposit box of donor — that lawyer told donee’s mother of attempted gift and was told to keep securities did not constitute a delivery nor make the lawyer a trustee for the donee.
    1. Under a provision in a will whereby testator gave the residue of his estate, both real and personal, to his wife “to be her absolute property, provided, however, that upon the death or re-marriage of my said wife, whatever of property or estate she may have received from me and which shall remain at that time undisposed of, I give, devise and bequeath unto my heirs at law and next of kin,” whatever power the widow had to use and dispose of the real and personal property of testator ended with her death. She had no power of disposition by will.
    2. Nor had the widow any power to give away, without consideration and in view of approaching death, personal property belonging to the estate solely for the benefit of her own blood relatives who were in no way connected with her husband.
    3. In any event the attempted disposal of such property, consisting of certain securities, did not pass title where the evidence shows that shortly before her death the widow, after making her will, handed the securities to her lawyer and said, “ give those to Violet Putnam,” whereupon the lawyer put the securities in his safe and later put them back in the safe deposit box of the donor. There was no complete delivery and delivery is essential to constitute a valid gift.
    4. The fact that the lawyer told the donee’s mother of the attempted gift and that she said to him to keep the securities until later or for safekeeping did not constitute a delivery to the mother. Mere words never constitute a delivery. Neither did it make the lawyer a trustee for the donee, as neither she nor her mother had title or possession of the securities whereby to create a trusteeship.

      Vincent v. Rix, 221 App. Div. 209, affirmed.

      Vincent v. Putnam, 221 App. Div. 211, affirmed.
    (Argued March 29, 1928;
    decided May 1, 1928.)
    Appeal in the first above-entitled action, by permission, from a judgment entered August 2, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, unanimously affirming an interlocutory judgment entered upon a decision of the court at Special Term in an action for partition of real property.
    Appeal, in the second above-entitled action, by permission, from a judgment entered August 2, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, unanimously affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action for an accounting and determination of title to certain personal property.

      Walter A. Fullerton, James A. Leary, Edward W. Barrett and Lewis C. Varney for appellants.
    Julia Rix took the residuary estate of her husband with an absolute power of disposition, including the power to dispose of it by will, and any part, thereof which has not been previously disposed of by her passed upon her death to the heirs and next of kin of Asa W. S. Rix. (Erwin v. Waterbury, 186 App. Div. 569; 231 N. Y. 592; Banzer v. Banzer, 156 N. Y. 429; Clay v. Wood, 153 N. Y. 134; Trask v. Sturges, 170 N. Y. 482; Thompson v. Hill, 87 Hun, 111; Byrnes v. Stilwell, 103 N. Y. 453; Clarke v. Leupp, 88 N. Y. 228; Campbell v. Beaumont, 91 N. Y. 464; Farney v. Weirich, 52 Misc. Rep. 245; Matter of Mead, 115 Misc. Rep. 481.) Julia Rix had the power to make a gift of said property.
      (Greyston v. Clark, 41 Hun, 125; Seaward v. Davis, 198 N. Y. 415; Colvin v. Young, 81 Hun, 116; Moffett v. Elmendorf, 152 N. Y. 475; Matter of Sharp, 86 Misc. Rep. 569.) There was a valid consummated gift. (Matter of Sherman, 227 N. Y. 350; Hunter v. Hunter, 19 Barb. 631; Matter of Mills, 172 App. Div. 530; 219 N. Y. 642; Matter of Cohn, 187 App. Div. 392; Matter of Wiemann, 220 App. Div. 276; McGavic v. Cossum, 72 App. Div. 35; Matson v. Abbey, 70 Hun, 475.)

      Charles L. Hoey and Walter P. Butler for respondent.
    The will of Asa W. S. Rix gave to his wife only the use of the property during her lifetime, with the right to dispose of the same only during her life. (Seaward v. Davis, 198 N. Y. 415; Tillman v. Ogren, 227 N. Y. 495; Liggett v. Firth, 132 N. Y. 7; Matter of Ithaca Trust Co., 220 N. Y. 437.) The alleged gift of the securities to Violet Putnam, was invalid, because Julia Rix was without the power to make the gift, under her husband’s will, and because the gift was never completed. (Matter of Werlich, 230 N. Y. 516; Wood v. Mitcham, 92 N. Y. 375; Matter of Edie, 117 App. Div. 310; Liggett v. Firth, 132 N. Y. 7; Terry v. Rector, etc., of St. Stephen’s Church, 79 App. Div. 527; Matter of Briggs, 101 Misc. Rep. 191; Matter of Wilkins, 183 N. Y. 104.) Even had the power been given here, the gift was not completed, and must fail for that reason. (Matter of Lewis, 123 Misc. Rep. 115; Allen v. Cowan, 28 Barb. 99; Devlin v. Greenwich Savings Bank, 125 N. Y. 756; Lewis v. Merritt, 113 N. Y. 386; Farian v. Weigel, 76 Hun, 462; Grymes v. Hone, 49 N. Y. 17; Bray v. O’Rourke, 89 App. Div. 400; Wadd v. Hazelton, 137 N. Y. 215; Matter of Van Alstyne, 207 N. Y. 298; Gannon v. Maguire, 160 N. Y. 476; Williams v. Guile, 117 N. Y. 343.)
   Crane, J.

Asa W. S. Rix died a resident of Saratoga, N. Y., on the 26th day of November, 191.9, leaving a. will which was duly admitted to probate, wherein after certain bequests he disposed of his residuary estate as follows:

“Seventh. All the rest, residue and remainder of my property and estate, both real and personal and every name and nature, I give, devise, and bequeath unto my beloved wife, Julia Eix, to be her absolute property, provided, however, that upon the death or re-marriage of my said wife, whatever of property or estate she may have received from me and which shall remain at that time undisposed of, I give, devise and bequeath unto my heirs at law and next of kin, .in shares as provided by the laws of descent and statutes of distribution of the State of New York.”

Julia Eix died on the 14th of December, 1925, leaving a will wherein and whereby after certain bequests she gave, devised and bequeathed all the rest, residue and remainder of her real and personal property to Violet Putnam, a grandniece, no relation to her former husband, Asa W. S. Eix.

At the time of her death Mrs. Eix had not disposed of her husband’s real estate nor the personal property which she had received from him under his will. Certain bonds and certificates she attempted to give away, and of these we will speak later.

In the case of Vincent v. Bix the action is one in partition, wherein Violet Putnam claims to take the real property of Asa W. S. Eix through the will of her grandaunt, Julia Eix. The courts below have held that whatever power Julia Eix had to use and dispose of the real property of her husband, Asa W. S. Eix, dining her lifetime under and pursuant to the seventh paragraph of his will ended with her death, and that she had no power of disposition by will. This ruling is in accordance with the previous decisions of this court, and the judgment must be affirmed. (Matter of Ithaca Trust Co., 220 N. Y. 437; Seaward v. Davis, 198 N. Y. 415; Leggett v. Firth, 132 N. Y. 7; Terry v. Wiggins, 47 N. Y. 512.)

The judgment in Vincent v. Putnam comes to us in an action for an accounting and involves the disposition of the personal property under the same wills. In so far as Julia Rix attempted to bequeath the property of her husband, Asa W. S. Rix, what has been said above about the real property applies to the personalty. She had no power to dispose of the personal property by will. There remains, however, a question regarding her attempted gift of bonds and stocks thirty days before her death. The facts are agreed upon.

This personal property consisted of five Liberty Loan bonds and sixty-five shares of railroad stocks. The stock stood in the name of Asa W. S. Rix. Julia Rix, the wife, received the income therefrom, as well as from the bonds during her lifetime, but never had the certificates changed into her own name individually or as executrix. On the 13th of November, 1925, at the approach of death, she sent for her attorney, Lewis C. Varney, to make her will. He prepared and she executed the will above referred to. At the same time Julia Rix handed to him the said stock certificates and Liberty bonds, and said: Give those to Violet Putnam.” The lawyer put the stock certificates and Liberty bonds in the safe in his own office and later put them back in the safe deposit box of the donor, Julia Rix, where they were at the time of her death. No markings indicated a separation of these securities from the many others which were there. The stocks and bonds never left the possession of Julia Rix or her attorney, Lewis C. Varney. They were not delivered or even tendered to Violet Putnam. Varney says that he told the mother of Violet Putnam that Julia Rix had given to Violet the securities and that the mother said to hold them for safekeeping.

Passing for the present the question whether there was here a completed gift, we must first determine whether or not under the will of Asa W. S. Rix, Julia, the widow, had power to give away without consideration the property left to her for life. I doubt whether under the decisions she had any such power. Bix and his wife had no children. He apparently desired to have her well taken care of and provided for during her life. He gave her all his property, both real and personal, to be her absolute property, “ provided, however, that upon the death or re-marriage of my said wife, whatever of property or estate she may have received from me and which shall remain at that time undisposed of, I give, devise and bequeath unto my heirs at law, ” etc. No doubt under this provision of the will Julia Bix could dispose of the property for her needs and requirements and her judgment in this matter would be conclusive. A very broad and liberal interpretation would be given to her power of disposal. We need not try to forecast all the instances in which such a legatee could dispose of the property. We are dealing here with the sole question whether on approaching death she could give it away absolutely and without any consideration. We have already held that she could not dispose of the property coming to her from her husband by will. Here was an attempted gift made at the same time that she made her will, and within thirty days of her death. It has all the indicia of an attempted gift in place of a testamentary disposition. If the bequests by will were void, so likewise should be this attempted gift.

Every case deals with a differently phrased will. Some clearly indicate that the property is to be used by the legatee only for her own use and benefit. Others are very vague in this particular. In this will the testator says that the property he gives his wife is to be her absolute property, provided, however, that upon her death or remarriage, whatever shall remain undisposed of shall go to his heirs. What does he mean by “ remain undisposed of? I am inclined to think the intention was to limit the power of disposition for her use, comfort, benefit or support, and that these words should have a very broad and liberal interpretation, so much so that Julia Bix would probably be the sole judge of what was for her benefit and enjoyment. Such disposition, however, and such user would call for the exercise of good faith upon the part of Julia Bix, and would not include a gift of the property in view of approaching death solely for the benefit of her blood relatives in no way connected with her husband, Asa W. S. Bix.

Another event beside the death of Julia Bix was to terminate her life interest. This was her remarriage. What remained of his property undisposed of on her remarriage passed to the next of kin. Surely the testator never intended that his wife, the day before her remarriage, could give away all his property coming to her under this seventh clause of his will. If she had the power to give these securities to Violet Putnam, she also had the power to give away both real and personal • property without consideration the day before her remarriage. It is a question of power, not of probabilities.

The tendency of the courts to place these reasonable limitations upon the power of disposition under such a will may be gathered from the following cases. (Peck v. Smith, 183 App. Div. 336, p. 343; revd., 227 N. Y. 228 on other grounds. See, also, cases cited above and the following: Goodrich v. Henderson, 221 Mass. 234; Richards v. Morrison, 101 Me. 424; Presbyterian Church v. Mize, 181 Ky. 567; Bevans v. Murray, 251 Ill. 603; Griffin v. Kitchen, 225 Mass. 331; Farlin v. Sanborn, 161 Mich. 615; Gibson v. Gibson, 239 Mo. 490.)

Assuming for the purposes of this opinion that Julia Bix could make a gift, I am convinced that her attempted disposal of these stocks and bonds above mentioned did not pass title to Violet Putnam — the gift was incomplete. The law regarding gifts has been fairly well settled, and the cases reviewed in Matter of Van Alstyne (207 N. Y. 298). Delivery is essential to constitute a valid gift. The delivery must be Such as to vest thé donee with the control and dominion over the property and to absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title of the property in the donee. (Jackson v. 23rd St. Ry. Co., 88 N. Y. 520, 526.) The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit; there must be a change of dominion and ownership; intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given. While delivery may be made to a third party for and in behalf of the donee, yet handing the property to an agent of the donor to be delivered to the donee is not sufficient. The matter was well stated in Bickford v. Mattocks (95 Me. 547, 550). Not every delivery to a third person is a delivery for the donee, or for the use of the donee, in the sense in which these phrases are used in the cases cited. There may be a delivery to a third person which constitutes him the agent of the donor, and there may be a delivery which constitutes him a trustee for the donee, and the distinction lies in the intention with which the delivery is made. If the donor deliver the property to the third person simply for the purpose of his delivering it to the donee as the agent of the donor, the gift is not complete until the property has actually been delivered to the donee. Such a delivery is not absolute, for the ordinary principle of agency applies, by which the donor can revoke the authority of the agent, and resume possession of the property, at any time before the authority is executed.” (See, also, Grant Trust & Savings Co. v. Tucker, 49 Ind. App. 345; Furenes v. Eide, 109 Ia. 511; Dickeschied v. Exchange Bank, 28 W. Va. 340; Love v. Francis, 63 Mich. 181; Merchant v. Building Co., 17 Ohio Circuit Ct. 190.)

Equity will not help out an incomplete delivery. If the agent of the donor has failed to make the delivery expected equity will not declare him a trustee for the donee. (Govin v. De Miranda, 79 Hun, 286.)

The nearest approach to the present case is Bump v. Pratt (84 Hun, 201). The delivery in that case, however, was to a Miss Cornell as agent of the donee; the opinion so states.

The delivery of the securities by Julia Rix to her lawyer, Lewis C. Varney, was a delivery to her agent, not the agent of the donee, Violet Putnam. Mrs. Rix gave them to her lawyer to deliver to Violet Putnam. The lawyer says: “ She wanted me to give the stock certificates which she handed me to Violet Putnam.” And again, “ Give those to Violet Putnam.” The lawyer never delivered them to Violet Putnam, but kept them for a while in his possession and then gave them back into the possession of the donor by putting them in her box where they were found after her death. Any time before the lawyer had parted with the possession of the securities by delivering them to Violet Putnam or her representative, Julia Rix could have revoked his authority. The object of complete satisfactory delivery to constitute a gift is to prevent just such questions as have here arisen where personal property claimed to be the subject of the gift is found in the possession of the alleged donor at the time of her death.

When Varney, the lawyer, told Violet Putnam’s mother of Julia Rix’s intention, the mother said for him to keep the securities until later or for safekeeping. This did not constitute a delivery to the mother. Mere words never constitute a delivery. Neither did it make the donor’s agent a trustee for Violet Putnam, as neither she nor her mother had title or possession of the securities whereby to create a trusteeship. (Brown v. Spohr, 180 N. Y. 201.)

A father put a check in the hands of his nine months, old infant, saying: “ I give this to baby for himself,” and then took back the check and put it away. The father died very soon thereafter and the check was found in his effects. It was decided by the English Court of Chancery in Jones v. Loch (1 Chancery Appeal Cases, p. 24; Law Reports 1865-66) .that this was neither a gift nor a declaration of trust. While this may be an extreme ruling, yet it indicates the trend of the courts regarding this question of gifts. In order that mistakes may not be made where the alleged donor has passed into silence, delivery beyond the power of further control and dominion must be proved as well as the intention in order to constitute a gift.

Even if we should be disinclined to hold as matter of law that Varney was not the agent for Violet Putnam to receive delivery of the securities.for and in her behalf, at least it was a question of fact which has been resolved against the donee, and as there is evidence or reasonable inferences to be drawn from the evidence which sustains this conclusion, we cannot reverse the findings of the trial judge affirmed by the Appellate Division. The trial judge found that Julia Rix in her lifetime made no valid gift of these securities, and this finding has been affirmed by the Appellate Division, which in its opinion states, It was not a completed gift.”

For these three reasons here stated, the judgment in each action is correct, and should be affirmed with costs.

Pound, Andrews, Kellogg and O’Brien, JJ., concur with Crane, J.; Cardozo, Ch. J., and Lehman, J., concur in the result as to the action for an accounting upon the ground that the life tenant’s power of disposition did not extend to a gift in contemplation of death or remarriage if made for the purpose of evading and defeating the ulterior limitations that were to take effect in those contingencies.

Judgments affirmed.


author: Kellogg, J. Lehman, J.

text:
    Jennie Petterson, as Executrix of John Petterson, Deceased, Respondent, v. George Pattberg, Appellant.
    Contract — offer and acceptance — offer by holder of third mortgage to make allowance on principal if paid by certain date — right to withdraw offer at any time before payment — sufficiency of notice, that mortgagee could no longer perform — no contract where offer was withdrawn.
    An action to' recover for breach of an alleged contract cannot be maintained where it appears that defendant, who held a third mortgage on real property belonging to plaintiff’s testator wrote him offering to make an allowance on the principal if it was paid by a certain date, whereupon, before the date mentioned, testator went to defendant’s house and called through the door, which was closed, that he had come to pay off the mortgage but was told by defendant that he had sold the mortgage, after which, upon the door being opened, testator made a tender of the cash. Defendant had the right to withdraw his offer at any time before payment was made and his statement that he had sold the mortgage was a definite notice to testator that he could not perform his offered promise and that a tender would be ineffective. It clearly appears, therefore, that the defendant’s offer was withdrawn before it became a binding promise and that no contract was ever made.

      Petterson v. Pattberg, 222 App. Div. 693, reversed.
    (Decided February 20, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 18,1927, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Harry G. Anderson and Louis J. Merrell for appellant.
    Inasmuch as the mortgage had been sold and plaintiff’s testator had been apprised thereof before the tender of performance, .the offer must be deemed to have been withdrawn; therefore, no contract resulted from such tender. (Butchers Advocate Co., Inc., v. Berkof, 94 Misc. Rep. 299; Lacelles v. Clark, 204 Mass. 362; Stensgaard v. Smith, 43 Minn. 11; Biggers v. Owen, 79 Ga. 658; Smith v.
      Caughen, 98 Misc. Rep. 746; Levin v. Dietz, 194 N. Y. 376; Detlinfass v. Horsley, 177 App. Div. 143; 224 N. Y. 560; Dickinson v. Dodds, 2 Ch. Div. 463.)

      Saul Levine for respondent.
    The plaintiff established a good cause of action against the defendant. (Lord v. Cronin, 154 N. Y. 172; Mason v. Decker, 72 N. Y. 595; Justice v. Lang, 42 N. Y. 493; Fox v. Hawkins, 135 N. Y. Supp. 245; Jones v. Barnes, 105 App. Div. 287; Willetts v. Sun Mutual Ins. Co., 45 N. Y. 45; White v. Baxter, 71 N. Y. 254; Marie v. Garrison, 83 N. Y. 14; Strong v. Sheffield, 144 N. Y. 395; Beck v. Bonwit, 153 N. Y. Supp. 888; Corn v. Bergmann, 123 N. Y. Supp. 160.)
   Kellogg, J.

The evidence given upon the trial sanctions the following statement of facts: John Petterson, of whose last will and testament the plaintiff is the executrix, was the owner of a parcel of real estate in Brooklyn, known as 5301 Sixth avenue. The defendant was the owner of a bond executed by Petterson, which was secured by a third mortgage upon the parcel. On April 4th, 1924, there remained unpaid upon the principal the sum of $5,450. This amount was payable in installments of $250 on April 25th, 1924, and upon a like monthly date every three months thereafter Thus the bond and mortgage had more than five years to run before the entire sum became due. Under date of the 4th of April, 1924, the defendant wrote Petterson as follows: “ I hereby agree to accept cash for the mortgage which I hold against premises 5301 6th Ave., Brooklyn, N. Y. It is understood and agreed as a consideration I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and che regular quarterly payment due April 25, 1924, is paid when due.” On April 25, 1924, Petterson paid the defendant the installment of principal due on that date. Subsequently, on a day in the latter part of May, 1924, Petterson presented himself at the defendant’s home, and knocked at the door. The defendant demanded the name of his caller. Petterson replied: It is Mr. Petterson. I have come to pay off the mortgage.” The defendant answered that he had sold the mortgage. Petterson stated that he would like to talk with the defendant, so the defendant partly opened the door. Thereupon Petterson exhibited the cash and said he was ready to pay off the mortgage according to the agreement. The defendant refused to take the money. Prior to this conversation Petterson had made a contract to sell the land to a third person free and clear of the mortgage to the defendant. Meanwhile, also, the defendant had sold the bond and mortgage to a third party. It, therefore, became necessary for Petterson to pay to such person the full amount of the bond and mortgage. It is claimed that he thereby sustained a loss of $780, the sum which the defendant agreed to allow upon the bond and mortgage if payment in full of principal, less that sum, was made on or before May 31st, 1924. The plaintiff has had a recovery for the sum thus claimed, with interest.

Clearly the defendant’s letter proposed to Petterson the making of a unilateral contract, the gift of a promise in exchange for the performance of an act. The thing conditionally promised by the defendant was the reduction of the mortgage debt. The act requested to be done, in consideration of the offered promise, was payment in full of the reduced principal of the debt prior to the due date thereof. If an act is requested, that very act and no other must be given.” (Williston on Contracts, sec. 73.) “ In case of offers for a consideration, the performance of the consideration is always deemed a condition.” (Langdell’s Summary of the Law of Contracts, sec. 4.) It is elementary that any offer to enter into a unilateral contract may be withdrawn before the act requested to be done has been performed. (Williston on Contracts, sec. 60; Langdell’s Summary, sec. 4; Offord v. Davies, 12 C. B. [N. S.] 748.) A bidder at a sheriff’s sale may revoke his bid at any time before the property is struck down to him. (Fisher v. Seltzer, 23 Penn. St. 308.) The offer of a reward in consideration of an act to be performed is revocable before the very act requested has been done. (Shuey v. United States, 92 U. S. 73; Biggers v. Owen, 79 Ga. 658; Fitch v. Snedaker, 38 N. Y. 248.) So, also, an offer to pay a broker commissions, upon a sale of land for the offeror, is revocable at any time before the land is sold, although prior to revocation the broker performs services in an effort to effectuate a sale. (Stensgaard v. Smith, 43 Minn. 11; Smith v. Cauthen, 98 Miss. 746.) An interesting question arises when, as here, the offeree approaches the offeror with the intention of proffering performance and, before actual tender is made, the offer is withdrawn. Of such a case Williston says: “ The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say I revoke ’ before the offeree accepts, however brief the interval of time between the two acts, there is no escape from the conclusion that the offer is terminated.” (Williston on Contracts, sec. 60-b.) In this instance Petterson, standing at the door of the defendant’s house, stated to the defendant that he had come to pay off the mortgage. Before a tender of the necessary moneys had been made the defendant informed Petterson that he bad sold the mortgage. That was a definite notice to Petterson that the defendant could not perform his offered promise and that a tender to the defendant, who was no longer the creditor, would be ineffective to satisfy the debt. “An offer to sell property may be withdrawn before acceptance without any formal notice to the person to whom the offer is made. It is sufficient if that person has actual knowledge that the person who made the offer has done some act inconsistent with the continuance of the offer, such as selling the property to a third person.” (Dickinson v. Dodds, 2 Ch. Div. 463, headnote.) To the same effect is Coleman v. Applegarth (68 Md. 21). Thus, it clearly appears that the defendant’s offer was withdrawn before its acceptance had been tendered. It is unnecessary to determine, therefore, what the legal situation might have been had tender been -made before withdrawal. It is the individual view of the writer that the same result would follow. This would be so, for the act requested to be performed was the completed act of payment, a thing incapable of performance unless assented to by the person to be paid. (Williston on Contracts, sec. 60-b.) Clearly an offering party has the right to name the precise act performance of which would convert his offer into a binding promise. Whatever the act may be until it is performed the offer must be revocable. However, the supposed case is not before us for decision. We think that in this particular instance the offer of the defendant was withdrawn before it became a binding promise, and, therefore, that no contract was ever made for the breach of which the plaintiff may claim damages.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Lehman, J.

(dissenting). The defendant’s letter to Petterson constituted a promise on his part to accept payment at a discount of the mortgage he held, provided the mortgage is paid on or before May 31st, 1924. Doubtless by the terms of the promise itself, the defendant made payment of the mortgage by the plaintiff, before the stipulated time, a condition precedent to performance by the defendant of his promise to accept payment at a discount. If the condition precedent has not been performed, it is because the defendant made performance impossible by refusing to accept payment, when the plaintiff came with an offer of immediate performance. It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure.” (Williston on Contracts, section 677.) The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition.

•The promise made by the defendant lacked consideration at the time it was made. Nevertheless the promise was not made as a gift or mere gratuity to the plaintiff. It was made for the purpose of obtaining from the defendant something which the plaintiff desired. It constituted an offer which was to become binding whenever the plaintiff should give, in return for the defendant’s promise, exactly the consideration which the defendant requested.

Here the defendant requested no counter promise from the plaintiff. The consideration requested by the defendant for his promise to accept payment was, I agree, some act to be performed by the plaintiff. Until the act requested was performed, the defendant might undoubtedly revoke his offer. Our problem is to determine from the words of the letter read in the light of surrounding circumstances what act the defendant requested as consideration for his promise.

The defendant undoubtedly made his offer as an inducement to the plaintiff to pay ” the mortgage before it was due. Therefore, it is said, that “ the act requested to be performed was the completed act of payment, a thing incapable of performance unless assented to by the person to be paid.” In unmistakable terms the defendant agreed to accept payment, yet we are told that the defendant intended, and the plaintiff should have understood, that the act requested by the defendant, as consideration for his promise to accept payment, included performance by the defendant himself of the very promise for which the act was to be consideration. The defendant’s promise was to become binding only when fully performed; and part of the consideration to be furnished by the plaintiff for the defendant’s promise was to be the performance of that promise by the defendant. So construed, the defendant’s promise or offer, though intended to induce action by the plaintiff, is but a snare and delusion. The plaintiff could not reasonably suppose that the defendant was asking him to procure the performance by the defendant of the very act which the defendant promised to do, yet we are told that even after the plaintiff had done all else which the defendant requested, the defendant’s promise was still not binding because the defendant chose not to perform.

I cannot believe that a result so extraordinary could have been intended when the defendant wrote the letter. The thought behind the phrase proclaims itself misread when the outcome of the reading is injustice or absurdity.” (See opinion of Cardozo, Ch. J., in Surace v. Danna, 248 N. Y. 18.) If the defendant intended to induce payment by the plaintiff and yet reserve the right to refuse payment when offered he should have used a phrase better calculated to express his meaning than the words: “I agree to accept.” A promise to accept payment, by its very terms, must necessarily become binding, if at all, not later than when a present offer to pay is made.

I recognize that in this case only an offer of payment, and not a formal tender of payment, was made before the defendant withdrew his offer to accept payment. Even the plaintiff’s part in the act of payment was then not technically complete. Even so, under a fair construction of the words of the letter I think the plaintiff had done the act which the defendant requested as consideration for his promise. The plaintiff offered to pay with present intention and ability to make that payment. A formal tender is seldom made in business transactions, except to lay the foundation for subsequent assertion in a court of justice of rights which spring from refusal of the tender. If the defendant acted in good faith in making his offer to accept payment, he could not well have intended to draw a distinction in the act requested of the plaintiff in return, between an offer which unless refused would ripen into completed payment, and a formal tender. Certainly the defendant could not have expected or intended that the plaintiff would make a formal tender of payment without first stating- that he had come to make payment. We should not read into the language of the defendant’s offer a meaning which would prevent enforcement of the defendant’s promise after it had been accepted by the plaintiff in the very way which the' defendant must have intended it should be accepted, if he acted in good faith.

The judgment should be affirmed.

Cardozo, Ch. J., Pound, Crane and O’Brien, JJ., concur with Kellogg, J.; Lehman, J., dissents in opinion, in which Andrews, J., concurs. '

Judgments reversed, etc.