author: Pitney, Y. 0.

text:
    Arthur C. Sherman v. The Sherman & Lyon Company, an insolvent corporation.
    [Submitted October 11th, 1902.
    Decided November 6th, 1902.
    Filed January 26th, 1903.]
    A typewriter company appointed “dealers” for the sale of its machines in South Africa, they to purchase and pay for the machines consigned to them, with the exclusive right of sale. A third party had been appointed temporarily, the appointment terminating May 1st, 1894, andi the defendant corporation, which had an agent in South Africa, had, late in June, been appointed in his stead, but the temporary dealer was to have the right to continue, if he desired, to November 1st. He accordingly in July sent in an order for machines, which were sent to him. The typewriter company at the same time wrote defendant’s agent that it would draw on the temporary dealer in the usual way, and send the dirafts to him to be collected, “by presenting the drafts to him either personally or through the bank which usually receives them,” &c. A few days later they sent the draft to defendant, with the reguest that it be transmitted to the agent for collection, &c. The agent made the collection and deposited the. proceeds to. the credit of the defendant, which afterwardls became insolvent.—Held, that the agent was acting in the matter for the typewriter company and should have remitted direct to it', and it was accordingly entitled to have its claim for the amount of the draft preferred.
    On appeal from the refusal of the receiver to give preference to a claim of Wyekoff, Seamans & Benedict.

      Mr. Edward Q. Keasbey, for the appellants.

      Mr. Robert II. McCarter, receiver, pro se.

   Pitney, Y. 0.

The appellants, Wyckoif, Seamans & Benedict, of Yew York City, manufacturers of the Remington Standard Typewriter, presented a claim to the receiver to be preferred creditors of the insolvent corporation to the extent of $509.79, being the amount of a draft drawn on the 30th of July, 1894-, by the4)appellants on one S. Edmonds Smith, a merchant at Gape Town; South Africa, and collected there by one Wilson D. Lyon, who forwarded the proceeds to the insolvent corporation in New York after the appointment of the receiver herein, who in turn received the same.

The amount of the draft was the balance due from Smith for an invoice of fifteen typewriters shipped by the appellants to him. Lyon was the general agent of the insolvent corporation in South Africa.

The equitable basis of tire claim is that the money was collected by Lyon not as general agent for the corporation, but as special agent of the appellants, and was, without appellants’ authority, mingled by him with the funds of his principal, the insolvent corporation, and in that way came to the hands of the receiver; and that the circumstances placed Mr. Lyon in the situation of a trustee for the appellants, and vested in them an equitable right to have the full amount paid to them.

A careful examination of the authorities leads me to the conclusion that the question is one of fact: Was Mr. Ljum justified, under the instructions sent to him by the appellants, in mingling that money with the money of the insolvent corporation? Or, tojstate it otherwise, ought the appellants to have expected, when they sent the draft on Smith to Mr. Lyon, that the proceeds of it would be mingled with the funds of the insolvent corporation; or did they have a right to expect that Mr. Lyon would remit the proceeds to them directly?

The facts more in detail are these: The appellants, previous to the date in question, had what they called “dealers” in South Africa for the sale of their machines. They appointed no agents, and consigned no machines to be sold on commission, but appointed dealers who were to purchase and pay for the machines, with the exclusive right of sale in South Africa.

The insolvent corporation was endeavoring to establish a general merchandise business in South Africa, and, for that purpose, it had an agent, Mr. Lyon, who, prior to 1894, had traveled extensively in that country and familiarized himself with business affairs there. In the summer of 1894 he was in the city of New York, and, as the agent for the insolvent corporation, had an interview with, the appellants, the result being that the appellants appointed the insolvent corporation their dealer in South Africa.

This appointment was made by two long letters dated on the 26th and 28th of June, 1894, not necessary to be here transcribed.

It appears that at or prior to that time one Aitken had been their dealer at Cape Town, and had given up business on account of ill health, and had been succeeded temporarily by Mr. Smith, whose appointment as dealer had expired on May 1st, 1894; so that the appointment of the insolvent corporation took effect almost immediately, although in the letters to which I have referred 'the appellants expressed their willingness that Mr. Smith should continue if he desired until November 1st then next.

Mr. Lyon proceeded to South Africa during the month of July, 1894, and some time shortly before the 26th of July, 1894, the appellants received from Mr. Smith two orders for an aggregate of fifteen machines, accompanied .by a draft for about half of the cost of the machines, to wit, $495. The appellants immediately prepared to ship the machines to Mr. Smith, and at the same time wrote to Mr. Lyon, at Cape Town, a letter, as follows

“New York, July 26th, 1894.
“Mr. W. D. Lyon, Gape Town, South Africa:
“Dear Sir—Since writing you on the 19th inst. we are in receipt of two orders for machines from. Mr. S. Edmonds Smith, both by cable, the first for five No. 5 machines and the second for ten No. 5 machines, the latter being stated as urgent. We are somewhat surprised at this, as we hardly expected to receive further orders from Mr. Smith, in view of his recent communication resigning the dealership and his expressed desire to sell out the stock that he already had on hand. Inasmuch as these orders must have been dispatched from Cape Town before any news of our changed arrangements could have reached him, we presume that he has found some opportunity of making sales of a number of machines, possibly something which he has been working up for some time. We are glad! to have the orders, and of course desire to fill them; at the same time we feel very strongly the necessity of protecting your possible action relative to the appointment of a dealer for Cape Town. We have, therefore, determined, after consultation with your Mr. A. <3. Sherman, to ship the machines by steamer ‘Olive Branch,’ now loading, and expecting to sail about the end of this month. As Mr. Smith complied with the terms of our agreement by cabling remittance for about half of the value, we will consign the goods to our own order, and draw upon him in the usual way. We propose to send the documents and draft to you, and will ask you to investigate the disposition that Mr. Smith means to make of this lot of machines. We, of course, would desire to protect him in every way, and enable him to fill his orders received from customers, except only if you find lie has sold any lot of machines to any party with the idea of stocking up some one to continue the business as dealer. We would not, of course, desire to embarrass your action in the slightest by permitting the old dealer to provide some outside party with stock. We have no reason io suppose that anything of the sort is contemplated, but wish to take precautions to avoid any possible embarrassment in the arrangements which you may seek to make. Even if Mr. Smith has made a sale to some outside party of a number of machines which would comprise a stock, it may be possible for j'ou to adjust matters so that the delivery can still be made and Mr. Smith obtain his profit, but this will be a matter for you to decide. If you find the machines are sold to individual users in the regular way of business, we would request that you let the business go through Mr. Smith in the usual way, by presenting the drafts to him, either personally or through the bank which usually receives them—the Standard Bank, we believe.
“In the event of your finding that any disposition likely to embarrass our future business in South Africa is to be made of these machines, we would ask you to notify Mr. Smith to this effect, and treat them as a consignment to be sold io best advantage, at not less than the list infices which may be established for future business in South Africa. In the event of your having to take charge of them in this way,, we trust you will make some disposition of them as speedily as possible, using them to stock up the sub-dealers that you may appoint, if possible, or selling them out to users, as we do not care to have- goods upon consignment. It is quite foreign to our method of doing business in foreign countries. Of course if you take charge of the goods thus, it will be necessary for you to advise us promptly, so that we can immediately return to Mr. Smith the amount of his remittance to us. We hope, however, that no action of this sort will be necessary. We will probably cable you something about this, if we can make up a message that will be intelligible without too great an expense, as we would like you to be informed at once that the machines are on the way, so that you may make arrangements for Cape Town with full information as to the situation before you.
“Yours truly,
“Wyckoee, Seamans & Benedict.”

On July 30th, 1894,.they wrote the■ insolvent corporation as .follows:

“New York, July 30th, 1894.
“The Sherman & Lyon Co., New York City:
“Gentlemen—Referring to copy of our letter of the 26th inst. to your Mr. W. D. Lyon, at Cape Town, we now beg to hand you herewith bills of lading for fifteen cases of typewriters shipped .per-steamer ‘Olive Branch’ to Cape Town, consigned to our own order, together with certificate of insurance No. 108,393, in the Atlantic Mutual Insurance Co. for $1,100, together with our draft . (F No. 1) at thirty days’ sight upon Mr. S. Edmonds Smith, Cape Town, for the sum of $509.79. This amount is the balance of our account with him, after deducting a draft made upon him of which we have not yet received the proceeds. We also enclose invoices to Mr. Smith for these goods. Will you kindly transmit these documents to your Mr. W. D. Lyon, at Cape Town, to be dealt with according to the instructions contained in our letter of the 26th inst. to-him ? Doubtless this business is perfectly regular, but, as the writer mentioned to your Mr. Sherman the other day, we prefer to take this course in order to give your Mr. Lyon the,.power to prevent these machines falling into the hands of any one who would compete with the dealer ho may appoint in Cape Town.
“We enclose herewith copy addressed to Mr. Lyon under this date.
“Yours truly,
“Wyckoee, Seamans & Benedict.”

And on the same day they wrote to Mr. Lyon a supplement to the letter of July 26th, as follows:

“New York, July 30th, 1894.
“Mr. W. D. Lyon, Gaye Town, South Africa:
“Dijar Sir—Deferring to our respects of the 26th inst., we notó in looking over the copy that we worded our instructions regarding, dealing with the machines shipped by the ‘Olive Branch’ in such a • fashion that you might perhaps misunderstand our intention. In speaking of selling them at not1 less than the list price which might be established for future business in South Africa, we had in mind the sale of the machines to actual users. We will, of course, have no objection to your selling, this stock to supply your sub-dealers with, at such discounts as you may agree upofi for business with them, in case you find it impracticable to dispose of these machines through Mr. Smith. We think it best to make this explanation.
“Yours truly,
“Wyckoee, Seamans & Benedict.”

The insolvent corporation forwarded the bills' of lading, invoice and draft, usually called the “documents,” to Mr. Lyon, who received them, and on the arrival of the goods about the 1st of September he called on Mr. Smith and arranged with him that he, Smith, should retain twelve of the machines which he had already sold, and that he, Lyon, should take the remaining three on account of the insolvent corporation. Mr. Smith, in pursuance of this arrangement, paid the freight,, &c., on the fifteen machines, charged to the appellants the share thereof díte to the three machines so taken and paid Mr. Lyon the balance— £63.15.0, equal to $310.24. That sum represented the value of the twelve machines, less the freight and other charges on three machines. Just how much the latter was the proofs do not show.

That check was deposited in a bank by Mr. Lyon on September 6th to the credit of the insolvent corporation, and laid there for about a month. Mr. Lyon made sales of other.property and collected the proceeds thereof, and deposited the same in the same bank to the credit of the insolvent corporation; and then when £200 and more had accumulated, he,- on October 6th, cabled the whole to the insolvent .corporation in New York City. The reason why he did not sooner cable the amount was that the bankers would not transfer by cable less than £200.

The £63.15.0 were collected and deposited before the insolvent corporation failed. The transfer by cable occurred after it failed, but before Mr. Lyon had heard of it. The balance of the money to make up the amount he cabled was deposited on September 17th.

The case is free from any difficulty arising out of a series of deposits and drafts. The cable credit undoubtedly comprises the Smith money.

It will be seen from this statement that the payment of £63.15.0 for the twelve machines, stands on a different footing from that of the proceeds of the sale of the three machines deposited later. I think, with regard to the larger sum, that it was clearly collected by Mr. Lyon as the agent of the appellants.

. With regard to the proceeds of the sale of the three machines, that sale was made by Mr. Lyon as agent of the insolvent corporation, in strict pursuance of the original appointment of it as “dealer” for the appellants, and had no earmark of special agency or trust; and tlio appellant’s case as to that fails. They must take their stand with the general creditors as to that part of their claim.

The claim to the extent of £63.15.0, together with the as yet unascertained amount of freight and charges paid by Smith on the three machines taken by Lyon, raises a very nice question. The rule in equity governing it seems to be pretty well settled by a long line of cases culminating in England in the case of Knatchbull v. Hallett, 13 Ch. Div. 696 (1880). A large number of cases, including Ex parte Dale, 11 Ch. Div. 772, and Pennell v. Deffell, 4 De G., M. & G. 372, were there cited and exhaustively discussed. Those cases hold that there is no difference between the case of a trustee of an express trust and that of a mere special agent for the collection of moneys; and the latter case determines, contrary to many of the previous eases, that if, in the case of a bank, the funds in the hands of the. banker are sufficient to cover the amount of the trust fund mingled therein, it matters not that since the deposit was made there have been additions and subtractions made therefrom in the ordinary course of business. And this is the rule in this country. Frelinghuysen v. Nugent, 36 Fed. Rep. 229; Perth Amboy Gas Co. v. Middlesex County Bank, 15 Dick. Ch. Rep. 84, and cases cited; National Bank v. Insurance Co., 104 U. S. 54, where all the cases to that date are discussed.

But in all these cases there was a breach of duty on the part of the trustee—that is, he innocen'tly, it may be, mingled the funds of the principal with’ his own in a manner not authorized either by the,directions of the principal or by the ordinary course of business. The principle seems to be that no man can be made the general creditor of another without his consent, express or implied. Libby v. Hopkins, 104 U. S. 308.

I can find no authority for the proposition, and none has been pointed out by the industry of counsel, that where, for instance, a party is engaged in the business of collecting money, and in the regular course of that business deposits that money in bank, not to the individual credit of each client, but to his own credit generally, and that course of business is understood and approved by his principal, any right of preference arises out of the transaction. His conduct in making the deposit which results in mingling trust moneys with his own was done in the ordinary regular course of business, and by the implied authority of his principal. In other words, his principal had no right to expect him to do otherwise.

Turning now to the facts in this case, we find by the original correspondence that the insolvent corporation was in no sense to act as the agent of the appellants or to do anything more than to have the exclusive right to buy goods of them for resale in South Africa, and upon the terms of paying cash therefor.

Just at the time the insolvent corporation was about to become the exclusive purchaser or dealer of the appellants’ goods this sale to Smith intervened and formed an exceptional state of affairs. The appellants then, acting entirely in the interests of the insolvent corporation, gave its agent in South Africa a special authority to deal in a particular way with the affair, and the net question is, as before stated, did they expect, or ought they to have expected, Mr. Lyon, when he collected the draft, to mingle the moneys with those of the insolvent corporation to be transmitted to them; or did they expect, or ought they to have expected, him to transmit directly to them P And right here we have the circumstance that although they, in the first place, on July 26th, wrote directly to Lyon, they, four days later, actually delivered the documents, including the draft on Smith, to the insolvent corporation to be forwarded to Lyon. Looking carefully, however, to the letter accompanying that delivery, I cannot see that it denudes the transaction of its special character before mentioned.

The difficulty in the case is that neither of the letters gives anjr special direction as to>the mode in which the money should be transmitted, except that the appellants suggest in the letter of July 26th, as follows:

“If you find the machines are sold to individual users in the regular way of business, we would suggest that you let the business go through Mr. Smith in the usual way, by presenting the drafts to him, either personally or through the hank tohieh usually receives them—the Standard Bank, we believe.”

Now, the mention of letting them go through a bank which in the usual course of business would transmit directly to the appellants, the shippers, has some significance.

I conclude, upon the whole case, and considering that the presumption is that when a special agent, for a particular purpose, collects a sum of money he will transmit it directly to his principal in the usual way practiced in foreign countries, that the weight of the evidence is that the appellants had reason to ex-peet a direct remittance to them of the proceeds - of the draft. If this be so, then Mr. Lyon was not justified in putting the £63.15.0 to the credit of the insolvent company, but should have purchased a bill of exchange with it in favor of the appellants.

I therefore conclude that the appellants’ claim must he allowed to the extent of the £63.15.0 ($310.24) plus the amount paid for charges against the three machines which were taken by the insolvent corporation’s agent in the regular course of business, less the -amount of the cost of exchange on Hew York.


source: Caselaw Access Project

author: Pitney, Y. C.

license: Public Domain

text:
    Mary Keeney v. Theresa Henning et al.
    [Submitted November 17th, 1902.
    Decided December 1st, 1902.
    Filed January 26th, 1903.]
    1. Where the relation of guardian and ward exists between a mother and her infant children, commissions will be allowed her on rents collected from realty belonging to the father’s estate, and of which they all were tenants in common, though the guardian did not fully perform her duties in regard to keeping accounts, and made some claims against her wards which were not entirely sustained. -
    2. A mother who is also guardian of her daughter, and with whom the .daughter resides, is not entitled to credits, when accounting as guardian, for a confirmation outfit furnished the daughter, and the.expense of a wedding feast given her.
    3. In a suit by a ward against her guardian, who was also her mother, for an accounting, evidence examined and—Held, to show that the ward fully compensated the guardian for the expenses of her support, by turning over to the guardian her earnings, and that nothing should be allowed the guardian on that account.
    4. Orphans Court act, section 97 (Rev. of 1877 p. 773; Gen. Stat. p. 2377), provides that a guardian shall exhibit to the orphans court annual accounts of all moneys, goods and chattels he “shall receive,” and all the-rents and profits of any realty in his possession belonging to the ward. Section 107 (Rev. of 1877 p. 775; Gen. Stat. p. 2379) provides that the accounts so filed shall be examined by the court, and, being found to be correct, “and the articles thereof to be supported and justified by the vouchers,” shall be confirmed and entered of record, &c., and, if any article be at any time afterwards excepted to by the ward, the burden shall be on him to impeach it, &c.—Held, that the jurisdiction of the orphans court was confined to receipts, and such actual disbursements as were made in cash, and did not include charges by a guardian for the support of her ward, who was also her child, furnished by herself, and hence the account of such a guardian, passed by the orphans court, was not prima fabie evidence of its correctness in such particulars.
    5. The weight' and strength of the presumption arising under the statute in favor of the guardian’s account, passed by, the orphans court, will depend upon the fairness and propriety of the items of the account itself.
    6. A mother, who is also the guardian of her infant child in arms, is' not entitled to credits for the motherly senviees rendered to it, but is entitled only to her actual outlays in money.
    On exceptions to master’s report.
    This matter is a continuation of that reported in 13 Dick. Ch. Rep. 74, where will he found a full statement of the case, and is heard on exceptions to a master’s report made pursuant to an order of reference, as directed by the opinion there reported.
    The reference was made to the late Master Romaine, who took considerable testimony in addition to that produced before the court on the previous hearing, but made no report. After his death the case was referred to Master Tajdor, with directions to use all the evidence, including that taken on the original hearing, as well as that produced before Master Romaine; and he has made a report showing a balance of rents due the complainant .and also the defendant George Henning.
    The accounting with George seems to have been taken by consent. He was an infant when the bill was filed, but shortly after became of age, and appeared by a solicitor and counsel as an actor against the defendant, his mother, Theresa Henning.
    No exceptions were taken by either party to the account of the rents and profits received and disbursements made thereout on general account. That account shows a balance due to the complainant and Geprge Henning, severally, of $1,579.75, subject to charges which apply to the complainant and the defendant, George, individually.
    Of the matters submitted to him the master declined to pass upon the question of commissions to the defendant Theresa for collecting the rents, and also that of the allowance of a counsel fee to her for preparing her account.
    On the hearing of these exceptions it was agreed by all parties that a counsel fee of $100 should be allowed for that purpose and credited to the accountant upon her general account, and, of course, divided between the complainant and George Henning. - Before the master a claim was made by the accountant against both the complainant and the defendant George for support and maintenance during the period accruing after March 17th, 1881. This claim was wholly disallowed by the master as to the complainant, and allowed as to the defendant George to an extent not satisfactory to the accountant.
    The accountant also made a claim against the complainant for an allowance of $25 for the expense of a clothing outfit for her religious confirmation in June, 1878, just before she became thirteen years old; also for an allowance of $177.57 for the expense of a wedding feast given to the complainant. Both were disallowed by him.
    . The master refused to consider the question whether the defendant Theresa was entitled, as against the complainant and the defendant George, severally, to a credit for the amount found due her—$404.94—or any part thereof, upon an accounting by her to the orphans court up to and including March 16th, 1881.
    When the vice-chancellor came to consider the exceptions he determined to give Mrs. Henning a further opportunity to support the items of $500 charged against the complainant and the defendant George in her accounting as guardian in the orphans court, and evidence was produced by Mrs. Henning in open court on November 17th, 1902, at Jersey City.
    For all these refusals of the master, and to the amount allowed for support and maintenance for the defendant George, the accountant excepts.

      Mr. Charles L. Corbin, for the exceptant.

      Mr. Robert S. Hudspeth, for the complainant.

      Mr. John F. Manon, for the defendant George Henning.
   Pitney, Y. C.

1. The question of allowance of commissions to the defendant Theresa for collecting the rents and taking care of the property was not much discussed. She paid no commissions to anyone, but did all the work herself personally. She was the co-tenant of the complainant and the defendant George, and during the latter part of the. period covered by the accounting, became the owner by purchase from her other children of all the shares except the two just mentioned.

If the relation of guardian and ward did not here exist, it is probable that under the circumstances no commissions would be allowed to the accountant. But the relation of guardian and ward did exist for the whole period as to George, and for a part of the period as to the complainant. And although the defendant Theresa did not fully perform her duties as a guardian by keeping an account with the complainant and the defendant George and duly crediting them with their shares of the rents, &e., and has made claims against them which have not been entirely sustained, yet, under the circumstances, I think that justice requires that she be allowed a fair compensation. The amount of rents actually collected for each during the period covered by the accounting was $1,853.01, and I fix five per cent., or $92.65, as a proper allowance to her against each.

2. I concur with the conclusions of the master as to the charges against the complainant for the expense of a confirmation outfit and a wedding; and the exceptions as to those items are overruled.

3. As to the exception against the refusal of the master to allow anything for the support and maintenance of the complainant after March 16th, 1881: Evidence in addition to that adduced at the original hearing was produced before the master.

[Omitting discussion of evidence.]

This review of the evidence confirms the opinion originally expressed hy me that from 1881 to 1885, the period, now under consideration, the complainant fully compensated her mother for the expenses of her support, and nothing should be allowed on that account.

The next exception is as to the allowance by the master to the mother for the support and maintenance of her son George. The materials before the master from which to make up that account were meagre, but such as they were I am unable to.perceive that he made any mistake in the deductions he drew from them, and must overrule the exceptions taken thereto.

This leaves for consideration the last and perhaps the most important question, and that is the effect of the accounting in the orphans court.

As stated in the previous report in 13 Dick. Ch. Rep., Mrs. Henning took out letters of guardianship of all her children, as to those born before the death of her husband on March 24th, 1877. She states in her evidence that she took out letters on the defendant George, who was born some months after the death of his father, about a year and a half after her husband’s death.

. A copy of her final account as administratrix was produced, showing a balance in her hands of the personal estate of $1,206.01, of which two-tliirds, or $804 belonged to her seven children. The original inventory and appraisement amounted to $1,712.93. The inventory shows that the estate consisted of $1,571.93, cash in bank and moneyed security; $155 of butcher shop fixtures, horse and Avagon, and $46 of household furniture.

On March 23d, 1881, a little more than four years after her ’husband’s death, she, as guardian of her seven infant children, verified an account before the surrogate, which I infer was prepared by the latter or his clerk. In a schedule she shows the amount of rents received by her from the death of her husband, March 16th, 1877, to the same date in 1881, to be $2,734, an average of $57 per month. The actual nominal rental was $60. This, of course, did not include the rental of that part of the premises occupied .by herself and family. She prays allowance for expenses, taxes and the payment of principal and interest on two mortgages • aggregating $1,100, without the interest, amounting in all to $2,633.48, leaving a balance of $100:52, but, after deducting her dower, leaving a balance of $67.02 to be divided among, seven children—$9.57 each. In another schedule she credits the seven infants with their share of the balance in her hands as administratrix—$804—charges surrogate’s fees, commissions on this $804 (a double commission), and on two-thirds of the rents received, amounting in all for commissions to $135.04, and thereby reduces the $804 to $598.46, which, divided among the seven heirs, gave to each $85.49. Then she, or the surrogate for her, make's up an individual account with each' infant, precisely the same with the oldest child as with the youngest, who was born several months after her husband’s death. That account is as follows: Credits the infant with $85.49, the share in the-personalty, and $9.57 share of rents, making $95.06, and then prays allowance as follows': “She prays allowance, paid board, clothing and schooling of minor from March 16th, 1877, to March 16th, 1881, four years, at $125 per year, $500,” leaving a balance due the guardian of $404.94.

This account was-presented by the surrogate to the orphans court and passed by that court. Mary TIenning swears that she never- had 'any notice of it until ■ after she brought this ■ suit, and - of course the infant, George Henning, who was less than four j^ears 'old, could have had no notice of it. Ho proof was offered that any citations were issued and served on anybody,although charges for them appear in the account.

This accounting was clearly made under the ninety-seventh section of the Orphans Court act (Rev. of 1877 p. 773; Gen. Stat. p. 2377), and the allowance of the account was under section 107 of the same act (Rev. of 1877 p. 775; Gen. Stat. p. 2379).

The exceptant contends that this account so allowed is prima facie evidence of its correctness, as-well as regards the charges against the accountant and the credit of $500 to her.

The force and effect of the decree must depend upon the proper construction of the sections of the act-just mentioned. Section 97 provides that

“Every testamentary guardian or other guardian shall exhibit to the orphans court once in each year, and oftener if required, an account of all moneys, goods and chattels he shall receive, and of the rents, issues and profits of any real estate in his possession belonging to his ward.”

It will be observed that this language does not include any payments or disbursements or services by the guardian. But by referring to section 107 it seems quite plain, and justice requires, that the guardian shall, at the same time that he charges himself with income, have the privilege of inserting in his' account the items of payments and disbursements thereout.

That section (107) provides that the account so filed

“shall be examined by the court, and being found to be properly and fairly stated, and the articles thereof to he supported and justified hy the vouchers, and the report in case of a reference being approved and confirmed by the court, shall, with such confirmation, be entered of record; and if any article of such accounts be at any time afterwards excepted to by the ward or his representative, it shall be incumbent on him to prove or show the falsity or injustice thereof, unless notice on his behalf shall have been given,” &c.

And see the language of Chancellor Runyon, commenting on these sections, in Davis v. Combs, 11 Stew. Eq. 473 (at p. 481, near the top).

blow, the first and principal question is whether it is within the province of the orphans court, on an annual accounting by a guardian, to deal with such items as are here in question, namely, services and support furnished directly by the guardian to the infant, or whether the court is not confined in its jurisdiction to the dealing simply with receipts and actual disbursements in cash.

I am of the opinion that the latter is the true construction of the act.

It will be observed, as before remarked, that the original section (97) providing for the filing of these annual accounts does not provide for anything but an account of moneys actually received. Then, when we look at section 107, it seems that the' language “and the articles thereof to be supported and justified bjr the vouchers” contemplates the production of receipts for moneys paid, and for nothing else; ■ and that seems to me to exclude the idea that the personal services or personal claims of the guardian can be intended.

No contention was made, and there is no room to contend, that any voucher was produced to the surrogate or the orphans court by the accountant for the $500 which she charged for the support of her child during that period; nor was any produced for money paid for schooling and clothing of the ward.

Against this view the counsel for the accountant relied upon the cases of Davis v. Combs, 11 Stew. Eq. 473, and Pyatt v. Pyatt, 1 Dick. Ch. Rep. 285.

In Davis v. Combs the annual accounts included only receipts and actual disbursements, which it is fair to infer were stated in detail by items and were supported by vouchers. Part of those disbursements, which formed the subject of the appeal, was paid to a third party for the board and maintenance of the ward. This appears by what was said by the chancellor at the bottom of p. 481 and p. 482. There is nothing in the case to show that there was a claim for allowance for board and support furnished by the guardian himself. And on a final accounting in the orphans court, after the ward had attained majority, the question was as to the prima facie effect of the decrees on the annual accountings. The ward had an opportunity to go into and did contest such items as she chose. The general nature of the case was stated by the chancellor (at p. 479) thus: “It is to be remembered that in the proceedings in the orphans court the annual accounts are not settled; they are merely ordered to be recorded, if, on examination, they prove satisfactory in the particulars and to the extent stated in the statute. They are still open to attack after they have been recorded. And in the case in hand the ward might have examined the guardian as to every item of the accounts, from the beginning to the end, had she seen fit, and she might have examined his vouchers with a view to showing errors in the accounts, and had she been successful in showing error, she would have had the benefit of it. She did show errors to her prejudice to the amount of $946.50, and they were corrected. The effect of the order to record, the accounts is merely to shift the burden of proof as to any items not objected to and which appear to the court to be correct.” But the case shows that she did not, in the court below, attack the items in question, namely, charges for cash paid for board and clothing. It' was held by the chancellor that the'approval of the orphans court was prima facie proof of their correctness and propriety. But he, nevertheless, considered the amount and propriety of the charges, and held them reasonable.

That conclusion was affirmed by the court of errors and appeals upon the Opinion of the chancellor.

The distinction between that cáse and this is that the dispute there was over itemized charges, supported by vouchers, for moneys paid to third parties, while here there is a single lump charge for support and maintenance, by the guardian herself, unsupported by a single voucher, and so far as it contained a charge for moneys paid, it is undistinguished from the general charge. Hence the ease is not an authority for 'the position taken by counsel for the accountant here, namely, that the orphans court accounting in this case is prima facie correct in the items in question, and that the burden is oh the ward to show its incorrectness.

The case of Pyatt v. Pyatt was that of an accounting by a guardian, upon citation, to a ward'years after the ward became of age, and is authority for the position that on such an accounting, made at the instance of the ward after the latter had attained her majority, the guardian was entitled to a credit for the support and maintenance of her ward, and that the orphans court had jurisdiction to determine the amount thereof. That, of course, is no authority for the position taken in this case by counsel for the accountant.

' But if it be conceded that the presumption must be in favor of the propriety and fairness of the charge in question, passed upon by the orphans court, and that the burden is on the ward to overcome it, yet the strength and weight of that presumption must depend upon the fairness and propriety of the charge itself, as set out in the account. Further consideration leads me to the conclusion that the criticism I made upon it in 13 Dick. Ch. Rep. 79, near bottom, is none too severe.. An examination of the account shows that the gross receipts for rent during the four years covered by the account were $2,734; that the expenses of repairs, taxes and insurance amounted to $1,368.98, which, deducted from $2,734, leaves a net income of $1,365.02. An examination of the accounting of the personal estate shows that the administratrix could not have received more than $1,700 in cash, and that she paid out of that in cash about $450, leaving a net balance of $1,250, which is just about the amount of principal and interest paid on the mortgages on the real’ estate: Hence it appears that with a net income for the four years of $1,365, and, as she swears, no estate of her own, and little dr no profits from her shop, she was able to support and maintain her seven children, with what little assistance she got from the two older ones. This shows very clearly that she never expended $125 a year on each of those seven children, or any such sum; and, as held in my previous opinion, she is not entitled to a profit out of her children. To give credit to such a result, we must conclude that out of a net income of $1,365 for four years—1 $341 a year—besides the free use of a part of their real estate, she could support her family of seven children and bring them in debt to her in the aggregate sum of over $2,800.

To prevent any possible injustice to the accountant in the premises, on Hovember 17th I heard further evidence from her in support of these charges in her orphan's court accounting. On that occasion she produced Severn little pass-books, in which she said she had kept an account of the expenses incurred- for each of her children for a year or two after the death of her hus-. band. Each was endorsed in her handwriting, with the name of the particular child with whom the account was kept. Eo date whatever appears in either of them. She said that they had been in the hands of her counsel from the time this suit was instituted, but that counsel did not see fit to produce them, either on the first hearing or before the master. This fact, in connection with tire first glance at the contents of the books, produced a feeling of suspicion of them, but a further careful examination satisfied me that they were genuine.

The account against- Mary, the complainant, amounts to $125.22,-and consists mainly of clothing, but in it are included two items: “Other expenses, $8,” and “School money, $7,” which latter items corresponds with the amount which Mrs. Henning swore that she paid for Mary’s schooling at the Catholic parish school after her husband’s death] and there is a charge for a white dress, which probably covers the charge for a suit of clothes for her confirmation.

The book account with George commences with what is plainly the cost of his first infant clothing, and goes on until he was large enough to wear shoes, a hat and a kilt suit. I find ten separate charges for shoes, at prices which indicate that the boy was old enough to walk. I find three charges for hats. The total is $39.50. I think it fair to conclude that this covers the period until he was four years old.

The accountant also produced some vouchers for clothing purchased from 1879 to 1881, mainly in 1881, most of which I infer were for men’s or boys’ clothing, the total amounting to $86.40. One bill-of $5.56, in June, 1878, was especially for Mary and Amelia jointly. She also produced physicians’ bills for medical attendance, amounting to less than $100. The evidence tended to show that very little of this was properly chargeable to the complainant or to the defendant George.

The evidence so produced furnishes little aid towards an accurate conclusion.

In a case like this it is of course impossible to arrive at any-accurate result. But in the case of the complainant, taking into consideration the fact that of the four years covered by the account in question she was either working out or in the house assisting her mother, and earning, or nearly earning, her living for nearly two years, I think that $250 instead of'$500 will be' a liberal allowance. The account must be reduced accordingty —that is, that she became indebted to her mother during that time in $154.94. The result is that she must be charged, against the balance found in her favor by the master, with three items, viz., $50, being one-half the counsel fee] $92.65 for commissions, and $154.94 for board and .support, in all, $297.59, leaving a balance due her from her mother of $1,282.16.

The master has not charged the accountant with interest on the annual receipts of rents. The question of interest does not seem to have been raised before him. The bill was filed J anuary 31st, 1898. The account of the rents is brought down by a supplement to June 1st, 1903. No exception is filed by either the complainant or the defendant George on that account.

With regard to the account of George Henning in the orphans court, I am unable to find that the mother actually expended as much as $500 in his nurture for the' three years and threequartdhs that he lived during that period. I think it unnecessary tor'adduce argument or authority for the position that in such a case a mother is not entitled to pecuniary compensation for the motherly services which she renders to an infant child in arms, but is entitled only to the actual outlay in money. As in the case of the complainant, so in the ease of the defendant George, little evidence was adduced to show what the actual cost of the support was. The whole matter is submitted to the court as a juryman to act upon common knowledge of such affairs. I think $300 will cover the whole expense during that period, and that amount must be charged to him, in addition to those items already mentioned. The account with him will stand as follows:

Net rents.................................. $1,579 75
Charges by master................ $1,068 00
Half of counsel fee............... 50 00
Commissions ..................... 92 65
Board, &c., before 1881............ 104 94
- 1,315 59
Due George........................... $264 16

To each of these .accounts must be added interest from June 1st, 1903.

At the hearing on November 17th, the complainant, when asked about her age, made a clear mistake of one year, making herself one year younger than she actually was. A careful examination of the evidence shows that she was born on August 5th, 1865, that she was married in August, 1885, when she was just past twenty years of age.


text:
    George G. Bradley v. The Glenmary Company.
    [Submitted July 10th, 1902.
    Decided September 25th, 1902.
    Filed January 26th, 1903.]
    1. On mortgage foreclosure, evidence considered, and held to show that an agreement was in fact made for the extension of the time for the payment of the mortgage.
    2. The reduction by a mortgagor of the amount due on a first mortgage is a sufficient consideration to support an agreement by the second mort■gagee extending the time for payment of his mortgage.
    3. When a mortgagor, on negotiations between him and the first and second mortgagees, pays a sum on the first mortgage, the mortgagor believing that there is an understanding that in consideration of such payment the time for payment of the second mortgage is to be extended, though no such agreement was made by the second mortgagee, there is a quasi estoppel against his foreclosing before the time to which the mortgagor believed payment extended.
    4. In suit to foreclose a mortgage, a failure to pay taxes after the filing of the bill is of no avail to complainant.
    On final hearing on bill, answer and proofs.
    This is a bill to foreclose a mortgage dated November 23d, 1899, made’ by the defendant to the complainant, to secure the sum of $2,000 in one year, with interest payable semi-annually. The interest clause, which is in typewriting, is this: “To be paid upon the twenty-third days of November and May of each year.” Then follows, in the printed part, the usual clause that if interest shall remain in arrear for thirty days the principal may be declared due.
    The bill was filed on October 19th, 1901, nearly eleven months after the maturity of the bond.
    The defence set up is that by an arrangement made between complainant and defendant, based upon a valuable consideration, tlio time of the payment of the principal was extended for a period of three years from March 26th, 1901.

      Mr. Lindley M. Garrison,, for the complainant.

      Mr. Cornelius Doremus, for the defendant.
   Pitney, Y. C.

The bond and mortgage in question were given by the defendant to the complainant as part consideration of a conveyance by the complainant to the defendant of the mortgaged premises on the day of the date of the mortgage.

The property was sold subject to a mortgage made by a former owner to secure the sum of $9,000, referred to in the evidence and known as the Ryerson mortgage.

The defendant is a corporation engaged in maintaining one or more sanitariums or health resorts. Its domicile is at Owego, in the State of New York, where, at one time, it seems to have owned considerable property.

As part of the consideration of the conveyance the complainant, or his father, Mr. Edward A. Bradley, received a large block of stock in the defendant corporation. The amount of cash paid was insignificant.

In October, 1900, a bill was filed to foreclose the first mortgage, to which the complainant herein was made a party as second mortgagee, and such proceedings were had thereon that a decree was made in favor of complainant therein, and the property was advertised for sale for a day in January, 1901.

The defendant employed a Mr. Chatfield, a lawyer of Elatbush, New York, to delay the sale, and he obtained adjournments by making three successive pajanents of $250 each to Major Ryerson, the solicitor of the complainant therein, and finally entered into negotiations on behalf of the defendant for a permanent settlement of the Ryerson mortgage. The result was that Major Ryerson proposed that if the defendant would reduce the amount due on his mortgage to $7,000 he would give n extension of three years.

The counsel for the defendant at Owego was a law firm of Clark & Trueman, of whom Mr. Trueman had charge of defendant’s business. He came to Hew York to see the complainant, who is a practicing lawyer there, and arrange for an extension of both mortgages. I am. entirely satisfied that at that time Mr. Trueman supposed that the complainant herein had a decree for the amount of his mortgage embodied in the decree under which the property was advertised. Such was not the fact. An inspection of the papers in the Eyerson foreclosure shows that the Bradley mortgage was handed to Major Eyerson, and by him presented, with his own, to the master, and by him reported upon with the Eyerson mortgage; that Major Eyerson prepared a decree directing execution to issue to raise the amount due on each mortgage. The part of the decree which related to the Bradley mortgage was stricken out in the clerk’s office, and the execution, presumably, Avas worded accordingly. It has never been returned. The reason for this action by the clerk, presumably, Avas that no answer had been filed by Bradley and no order of reference made.

In order to raise the money to reduce the first mortgage it was necessary to get the consent of all the stockholders in the defendant corporation to execute a mortgage on the property in Owego.. Among those stockholders was Mr. E. A. Bradley, the .father of the complainant, to whom, as we have seen, the stock part of the consideration for the conveyance of the premises here in question was issued, and who it now appears is interested financially in the mortgage here under foreclosure. The result of the negotiations was that the money Avas raised and paid to Major Eyerson, and he and the complainants in the foreclosure signed this receipt:

“Beceived in several payments on account of the above decree, interest, taxed costs and sheriff's fees the sum of $2,460.59, in consideration .of which payment we, the undersigned, the complainants above named, do hereby agree not to further prosecute or enforce said decree for three years from the date hereof, provided interest at the rate of five per cent, per annum shall be promptly paid to us on the sum of $7,000, the amount remaining unpaid on said decree, semi-annually, on the 26th day of September and March in each year from the date hereof, or within thirty days after during said period; provided, also, that all taxes and assessments now or that may hereafter during said period become a lien on the lands described in the mortgage upon which said decree is founded, shall be duly paid when due and payable. Dated March 26th, a. d. 1901.”

Added to that is another receipt in the handwriting of Major Ryerson, signed by the complainant herein, in these words:

“I hereby consent to the discontinuance of proceedings to enforce the final decree in the above-stated action, and consent to a return of the execution issued in said cause to the clerk of said court, and to the agreement above set forth. Dated March 26th, 1901.”

Mr. Trueman swears positively that before the payment was made he applied to the complainant herein at his office for an extension of his mortgage; and the fact that the payment of $2,000 on the principal, and all arrears of interest and costs, on the Ryerson mortgage would increase the standing and value of the complainant’s mortgage, was relied upon as a reason for such extension. And it further appears by the evidence of Mr. Chat-field that as none of them was a New Jersey lawyer it was discussed between Trueman, complainant and himself, in complainant’s office, whether, if the extension was signed only by the complainants in the Ryerson foreclosure, he, the complainant herein, would have a right to open and vacate the extension so far as he was concerned, and enforce his mortgage. Mr. True-man further swears positively and distinctly that Mr. Bradley, the complainant herein, agreed orally, to extend his mortgage for the same term as the Ryerson mortgage, and that it was supposed by them and Mr. Chatfield, who was present at some of the interviews,, that the signing of the agreement which complainant did actually sign would have the effect of extending his mortgage.

Further, Mr. Chatfield swears that he had several interviews and conversations with the complainant herein on.the subject, and that the benefit to complainant herein of the reduction of the Ryerson mortgage was naturally a matter of conversation; and the complainant herein desired to have that reduction accomplished; and he says that at the next to the last of those interviews the complainant herein said that before signing any paper or giving any express agreement on the subject he wished to consult liis father; and, finally, on the day when the contract of extension was signed, he said that his father was unwilling that he, the complainant, should give an express written extension other than that actually signed, but that the mortgage should stand if the interest and taxes were paid.

The clear effect of the evidence of Mr. Trueman and Mr. Chat-field is that complainant did in effect agree verbally, in addition to signing the writing above recited, that if the first mortgage was reduced to $7,000 and the interest and taxes were paid, the second mortgage might remain until the end of the three years’ extension given by the Ryersons.

On the other hand, the complainant denies this and says that he had no interest in the mortgage; that he held it as trustee for his father, and that he spoke to his father on the subject and that he declined to grant any extension for any definite length of time, but authorized him to say, and that he did say, to the gentlemen just named, that it might remain until they had time to turn themselves and make arrangements to raise the money and pay it.

But the account given by the two witnesses, Chatfield and Trueman, for the defendant is corroborated by that of Mr. Clark, of the firm of Clark- & Trueman, who came to see the complainant a few months later, after the latter’s father had written peremptorily to the defendant that his mortgage must be paid unless the defendant would furnish a purchaser, at a satisfactory price, for the block of stock which he held in the defendant company. He swears that in the interview which he had at that time with the complainant the latter said that he understood that the bargain between him and the -representatives of the defendant, at the time the extension of the Ryerson mortgage was effected, was that his mortgage should be extended for the same length of time and upon the same terms, but that his father did not so understand or was unwilling to stand by that agreement. Mr. Chat-field swears to a similar admission made at about the same time.

After a very careful examination and comparison of the evidence o-f these witnesses, I come to the conclusion that the weight of the evidence and the probabilities of the case axe in favor of the defendant’s contention. Of one thing I am well satisfied, that, whatever may have been in the minds of the Bradleys, father and son, however careful and restricted they may have been in the language used by the complainant herein to the representatives of the defendant at and about the time of the granting of the extension of the Ryerson mortgage, the complainant knew that the defendant’s attorneys did understand, and complainant was 'willing that they should understand, that his mortgage should stand as long as the first mortgage stood.

It is manifest that the property was a slender security for both mortgages at their full face. It is stated that only $500 in cash were paid; and the proof shows that the complainant’s father expected to be compelled to buy the property at the sale under the Ryerson decree for not more than the amount of the Ryerson mortgage; and it is clear that it was decidedly to the benefit of the complainant or his father, whichever was the real owner of the mortgage, to have the first mortgage reduced, and it is entirely clear that -they held out every inducement to the defendant to effect that reduction; and among those inducements was the holding out to them the expectation that they would have no trouble with the second mortgage if they obtained the first to be reduced. And it is manifest that the defendant would not feel much encouraged to go to all the trouble and expense that it did to raise the money to reduce the first mortgage if its officers had supposed that it would immediately be called upon to pay the second mortgage. '

Yet it appears that as early afe the 19th of June, 1901, less than three months after the settlement of the Ryerson mortgage, and when no payment of interest was overdue and no arrears had accumulated, the elder Bradley, in writing, called upon the Glenmary Company to pay his mortgage, and then, when remonstrated with, said he would extend it if the defendant would furnish a purchaser, at a satisfactory price, for his stock in the defendant corporation.

Some doubt is attempted to be thrown upon the evidence of Mr. Trueman by a letter which was 'written by him to Mr. Bradley on July 6th, 1901, in which he uses this language:

“Now from the conversation I had with you when I was in New York looking after the Ryerson mortgage I understood that you would be willing to allow your mortgage on the property to remain if the interest were promptly paid thereon. Of course there was no agreement, but I am sure that the understanding was that the mortgage would be allowed to stand.”

Confronted with the language “of course there was no agreement/5 the witness explained on the stand that he meant no formal written agreement. At the time of writing that letter the witness had not conferred with Mr. Chatfield, whose evidence shows that he had more to do in procuring the alleged extension than had Mr. Trueman. It is manifest, and he so swears, that by the word “agreement55 used in that letter he meant a formal contract in writing between the complainant and the defendant, because he was present when the consent was signed by the complainant to the Ryerson extension; and he’was also a party to the discussion as to how far that agreement bound the Bradleys.

The case presents no difficulty on the score of consideration for the alleged contract. As already observed, the reduction of the amount due on the first mortgage by the payment on the principal of $2,000, with all arrears of interest, thereby reducing it to $7,000, was a direct benefit to the complainant.

Ror do I find any difficulty on the score of a contemporaneous parol contract varying the terms of a written contract. If the written consent to the Ryerson extension operated as an extension of the second mortgage held- by complainant, then, of course, the oral agreement does not alter or vary it. If, however, that written document had no effect upon that mortgage, then, again, the oral agreement does not vary it in any respect. The fact is that the parties, though lawyers, were uncertain in their minds as to what would be the effect of the contract actually signed. They were not advised of its effect, and hence the anxiety on their part to have a direct contract between the complainant herein and the defendant providing directly- for the extension of the time on his mortgage; and that contract, I think, by the clear weight of the evidence, was either actually made by complainant, or believed by the attorneys of 'the defendant, on just grounds, to have been made, and that the payment to'Ryerson of two thousand and odd dollars was made on the strength of it. II this he so, then a quasi estoppel arises against the complainant. In other words, it is highly inequitable and unjust for him to prosecute his foreclosure before the expiration of the time mentioned.

It was further suggested that the taxes were not paid promptly. Proof was offered that the taxes were actually paid in accordance with the terms of the Ryerson extension, but not promptly. The case, however, must he taken as it was at the time the bill was filed, and then, as I understand the evidence, the taxes had been paid, and, after hill filed, the interest due on the 23 d of November was tendered and refused.

I will .advise a decree that the bill be dismissed, with costs.


author: PlTKEY, V. C.

text:
    George Wallace White v. Anna Mae White.
    [Submitted May 1st, 1902.
    Decided September 20th, 1902.
    Filed January 26th, 1903.]
    1. Evidence in an action for divorce examined, and held sufficient to show that both parties were guilty of adultery, and that neither was entitled to relief.
    2. Derby v. Derby, 6 C. E. Gr. 36, at pp. 39 and 40, cited and commented upon.
    Petition for divorce. On final hearing on pleadings and proofs in open court.

      Mr. Robert S. Hudspeth, for the petitioner.

      Mr. Zebulon M. Ward, for the defendant.
   PlTKEY, V. C.

The petitioner, George Wallace White, by his petition, charges, his wife, Annie Mae White, the defendant, with, adultery with one Edward Zinke, and prays for a divorce by reason thereof.

The defendant, by her answer, denies the adultery, and by way of defence and in a cross-petition charges her husband with adultery with a Mrs. Julia Eaton, and prays for a divorce on her part from her husband.

By two several amendments which she was allowed to make, the defendant further charges her husband with adultery with an unknown woman at a roadside tavern, and also with adultery with a certain Mrs. B., at a time and place named.

The petitioner, by replication, denies each of these charges.

Evidence was adduced on seven non-consecutive days between the 25th of June, 1901, and the 21st of April, 1902, inclusive.

The evidence is voluminous and contradictory to a painful extent, showing clearly an unusual amount of perjury on one side or the other, and almost certainly on both.

The evidence adduced on each side in support of the charges made is ample to support them, if believed, and the denials and contradictions on each side are ample, if believed, to refute the charges.

I might content myself with stating the effect upon my mind, first, of listening to the evidence with care; second, of elaborate and able arguments on each side, and third, of a careful perusal of the evidence as transcribed. But the standing of the parties in the community and the importance to each of the result to which I feel myself constrained to come, and the very able manner in which the questions have been discussed by counsel, induce me to give my reasons at length.

The petitioner.is, I believe, the only child of his parents, who seem to have lived for the greater part of their lifetime in the city of Paterson, and the father seems to have acquired considerable wealth. The petitioner is a well educated man, a practicing physician, and it is said has a large practice.

The defendant’s maiden name was Wheatley. She is a native of Yew York, a daughter of a scenic artist, who died during her infancy and left her to the care of her mother, who has resided for many years in Paterson, where the defendant seems to have been reared.

The parties were secretly married while living at Paterson, on the 17th of October, 1891.

Some time thereafter, the petitioner, who was desirous of establishing himself in the practice of medicine, moved with his parents to West Hoboken, and took his wife with him. His father became the owner of a dwelling on the corner of Palisade avenue and- street, the front of the first floor of which was used as a drug store. The petitioner opened his suite of offices on' the same floor in the rear of the drug store, with a door opening on the side street.

The father and mother occupied the first floor above for their residence, and the petitioner and his wife occupied the second floor above for theirs.

One child—a son—was born to them in the year 1896.

This mode of living continued until the parties separated, in January, 1901.

The'suit was commenced on the 30th of November, 1900, and the parties had occupied separate apartments for some time previous to that date, and in January, 1901, the wife withdrew herself to her mother’s house at Paterson, where she has continued to reside ever since.

The parties are both young, of a suitable comparative age, both possessing attractive personalities, and if both had been faithful to their marriage vows should have led a model married' life.

Taking up now the case made by the petitioner against his wife.

[Omitting discussion of evidence.]

In estimating the value of this and all the evidence, standing by itself and disconnected from the denials and explanations which I will notice further on, it is proper to say that circumstances arose in the course of the production of the evidence in this cause which constrains me to look upon all of that produced against the defendant with much distrust and subject it to severe criticism. Those circumstances are the following: On the 13th of Januar3r, 1902, in the course of the examination of a witness produced by the’ defendant, it appeared that the petitioner had used money to hire a person in attendance before the court, whose evidence it was supposed would tend to prove the charges against the petitioner, to absent himself from the court, or, if he was called to the stand, to know nothing. This matter coming to the attention of the court I immediately instituted proceedings to investigate it, and called upon -the petitioner to show cause at a future day why he should not be adjudged guilty of contempt of the court. The proceedings so instituted resulted in the taking of considerable evidence, which satisfied me that both the petitioner and his alleged paramour, Mrs. Eaton, had been guilty of tampering with the witness in the manner stated, and also that two or three employes of the petitioner had likewise been guilty, with the result that they were all adjudged guilty and all the parties fined, the petitioner and one of his employes in a large sum. It further appeared in the progress of the cause that the petitioner was possessed of pecuniary means which enabled him to expend money freely in procuring evidence both to sustain his own view of the case and to combat that of the other side. I was entirely satisfied in that proceeding for contempt that both the petitioner and Mrs. Eaton had deliberately falsified.

On the other hand, while the defendant has enjoyed but á comparatively small alimony, pendente lite, and her counsel has received a very moderate counsel fee, and she, so far as appears, is not possessed of any pecuniary means, yet she seems to have friendsf'ffiud to have been able to procure evidence and witnesses to support her view of the case; and two apparently respectable females,' who were called .by her. 'to assist in proving an alibi on one of the days on which the evidence tended to show that she had been guilty of adultery with Zinke, were shown to have falsified, and after the evidence showing the falsity of their testimony had been taken, they felt constrained to admit that they had been mistaken. I am, however, unable to see.how they could have been mistaken.

I mention this now to show that the evidence on both sides must be scanned with great care, but I feel constrained to say that that produced on the part of the petitioner deserves the more severe scrutiny.

Now coming to the denials and explanations of the defendant.

[Omitting discussion of evidence.]

Taking all the evidence together, I am entirely satisfied that the case against the defendant is made out.

Now, as to the case made by the evidence against the petitioner. Sexual intercourse is alleged with three persons—one, a Mrs. B., supported by one witness. It is enough to say of this charge that it fails signally, but I am not prepared to say that it was not made in good faith.

The next charge of adultery is with an unknown woman at a roadside tavern in Hoboken or its neighborhood.

[Omitting discussion of evidence.]

With regard to this charge I will content myself at present by saying that I see no reason to seriously doubt the evidence of Mr. Beelonan, upon which it mainly rests.

I come now to the third charge, which is the one particularly relied upon by the defendant, and that is the charge of adultery with Mrs. Julia Eaton.

[Omitting discussion of evidence*]

Now, taking the evidence together, I am forced to the conclusion that the ease is made out against the petitioner, and this in full view of the fact that the defendant, helpless woman as she is, has been able to induce witnesses to prevaricate upon the stand. But the witnesses whose evidence tends to prove the case against the petitioner are numerous; many of them are disconnected with each other, so that it is impossible to believe, there was a concert between all of them; most of them weré'Tiot subject to any particular influence that might be brought to bear upon them by the defendant. Hence, I- am unable to believe that it was possible for her to induce so many witnesses, having such variant attitudes towards her and the ease, to come on the stand and deliberately perjure themselves. Or, to state it in another way, if the ease rested on the evidence of one, or two, or three witnesses, and .their evidence was not supported by other evidence, and was not consonant with the general trend of the whole evidence, I might believe that they were either mistaken or perjured ; but where so many witnesses differently situate, with diverse interests and connections, swear to so many facts all looking in one direction, I find it impossible to escape the result.

The result is that I find both parties guilty, and can afford neither any relief.

I come to this conclusion, so far as relates to the defendant, with regret. I should have been glad to acquit her and give her relief against her husband. I say this because there is good reason to suspect, if not believe, that the petitioner persistenly defrauded the defendant by withholding from her and bestowing upon other women those ministrations of love which every husband owes wholly to his wife, and, if so, it was natural; though unlawful, for the defrauded wife to cast her affections upon this innocent boj-, and seduce him, as I believe she did, to perform her husband's duties. Such a case naturally excites the sympathies of a judge toward the unfortunate female; and the books furnish instances where judges have permitted their sympathies to lead them from the plain path of judicial duty so far as to deliberately smother their real convictions and delude themselves into a sort of belief that the evidence is insufficient to show the guilt of the wife. I am glad to say that few persons of intelligence and sound judgment approve this mode of administering justice, and I believe that most persons condemn it. The striking picture, so graphically drawn by the masterly hand of Chancellor Zabriskie in Derby v. Derby, 6 C. E. Gr. 39, 40, of a delinquent husband taking “feeble hold” with “weakened, blanched and attenuated hands upon the horns of the altar of justice,” seems to me to be a distracting and dangerous object to have lodgment in the mind of the earnest, diligent and honest seeker for the truth, tending, as I think it does, to produce dimness and obliquity of vision and erroneous results. Better far, in my judgment, to keep at all times in view the time-honored motto: “Let the truth prevail though the heavens fall.” Conscious as I am that my judgment is convinced by the evidence in the cause that this defendant is guilty, my oath of office compels me-so to declare, and let the law of the land fix the consequences.

The only question that remains is to determine what shall be done with the child, and what provision shall be made for his care and maintenance. Upon that I will hear counsel.