text:
    Manly N. Cutter, App’lt, v. Cora Morris, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October, 15. 1886.)

    1. Employment—Sufficiency of pboof of.
    This was an action claiming to recover value of the services of plaintiff as an architect in drawing plans, etc., concerning an addition to a house at the request of and for the defendant. -The addition was of a room to be occupied by the .husband of defendant. The husband first called upon plaintiff to make the plans, etc., and the plaintiff at his instance went to the defendant’s residence where a conversation took place. In this conversation plaintiff remarked to defendant that the husband had told him she was about to erect an addition to her house and have D do the work; the defendant replied that, that was so, and suggested certain alterations. The room was however talked of by all three as the husband’s. _ There was no other interview with the wile, the plans drawn by the plaintiff were endorsed as of additions to the husband’s house and all correspondence was with the husband, and mentioned the work as the work of the husband, and all directions were given by aim. Held, that there was no proof that defendant had incurred any liability and that the comulaint was properly-dismissed.

      2. Same—Non-suit—When should be granted.
    Where the court would be justified in setting aside a verdict as clearly against the weight of evidence it is its duty to non-suit the plaintiff, before the evidence is left to the jury. There is, or may be, in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.
    Appeal from a judgment on the dismissal of the plaintiff’s complaint at the circuit.

      John Henry Hull, for app’lt; Charles E. Coddington, for resp’t.
   Daniels, J.

In this action the plaintiff claimed to recover the value of his services as an architect in drawing plans and making estimates for and concerning the erection of an addition to a house, at the request of and for the defendant. At the close of the plaintiff’s evidence it was considered by the court that he had failed to establish the fact that he was employed to render the service by the defendant, and whether the evidence sufficiently tended to prove this fact to entitle the plaintiff to submit the question to the jury, is the point upon which the appeal depends. The addition which was to be, and was made, to the house, consisted of a room designed to be occupied by John A. Morris, the husband of the defendant, and it was he who first called upon the plaintiff to make the plans and estimates for the addition. At his instance they proceeded to the defendant’s residence, where an interview took place with the defendant, as well as her husband, and in that interview the contemplated addition was the subject of conversation. In that conversation he stated that he remarked to the defendant that Mr. Morris told him that she was about to erect an addition to her house, and that it was decided to have Mr. Doty do the work, and that she replied that was so, and there was some talk and discussion regarding the proportions of the room and the size of the building; that he made a sketch of what he supposed would be the addition, and that Mrs. Morris, the defendant stated various features which she wished to have made to the room. And that the result of the conversation was that the defendant stated that she thought what it was proposed to do would be satisfactory and approved of the plan he presented. Her husband, Mr. Morris, also took part in the conversation in which it was stated that the room was for him, but if he did not like it the defendant remarked that she would take it herself. This was the only interview which at any time took place between the plaintiff and the defendant concerning this work. And while it was not directly stated that she was the person for whom it was to be done, or who was to incur the liability for it, yet that might be assumed, or inferred, from the evidence, if it were all that was given by the witness upon the trial. But it was not, for on the following morning Mr. Morris is stated by the plaintiff to have handed to him a paper containing suggestions, or indications generally describing and mentioning the work to be done. The witness drew plans for the work, but they were not exhibited to the defendant; but were to her husband, whom it was stated was to arrange the details, and these drawings were shown to him. After that the defendant and her husband proceeded to the south where they remained for a number of months, and- during that time correspondence passed between her husband and the plaintiff concerning this work. In the letters written by her husband he referred to the work as that which was to be done for himself, and mentioned the sum at which the. plaintiff had led him to expect it would be performed. In neither of these letters was any allusion made to the fact that the work was to be for the defendant, but in all instances it was mentioned and referred to as the work of the writer, who was her husband. At the plaintiff’s instance estimates were also obtained from other persons for portions of the work and material required to build and finish the room. Those estimates were produced in connection with the plaintiff’s testimony upon the trial. They were addressed to him and, with but one exception, they all stated the work to be for Mr. John A. or J. A. Morris, and that exception included two estimates of furniture by Roux & Co., which were stated to be for the defendant. The builder Doty, also himself obtained estimates for work and received letters concerning it. And in those instances the husband was mentioned as the person for whom the work was being done. And in a letter written under the direction of the plaintiff to him, in answer to complaints, or objections, made by him, the plaintiff himself mentioned this work as the work of the husband. In that letter concerning the cost of the work which was the subject of complaint it was stated, “at the outset I spoke to Mr. Doty, about making and sending you an estimate of the cost,” and, “If I had entertained any doubt on the subject it would have been dispelled by the fact that Doty recently informed me of your decision in favor of Spanish oak,” and “He also informed me that he had sent you samples from the piece I gave him, and that your preference was emphatic.” As to the cost it was written: “ ¡No, sir; I have not forgotten your remark about five thousand,” and in alluding generally to the work and expenses it was added: “Herewith I send drawings of the plans, and I think you will see that what is being done is merely the development of your instruction. There a few things done to emphasize the feelings and comforts of the room that you might possibly call deviations from your strict instructions,” and further on it was added: “ It is my duty to do as you request, and Doty in arriving at the cost shall have all the assistance I can render him.” The several plans which were made each contained the endorsement of the words: ££ Plans for addition to the house of John A. Morris.”

This however, was stated by a witness in the plaintiff’s employment to have been put on by himself, without knowing whether it had been seen by the plaintiff or not. It is, however, very probable as the plans were kept in the office, that this fact had come to the plaintiff’s knowledge. A letter was also produced written by the defendant in which the work was referred to as that of her husband, with the explanation that it was written by her for the reason that he had left Hew Orleans on that morning for Florida. To maintain the plaintiff’s action reliance was also placed upon a telegram from the defendant. This was sent to her husband who was at Jacksonville in Florida. Its language was: 1 £ Doty telegraphs the lowest contract for interior finish $5,911. Shall I sign contract? Answer him. Probably here. ” But this despatch contains no indication whatever that the work was being done at the instance of or for the defendant. It assumes, on the contrary, the work to be that of her husband, from whom she requests instructions as to what she may do. It was also shown that both of those persons made payments to other persons upon the work as it progressed, but generally they were by the defendant’s husband. How she came to make the payments was not explained, otherwise than by the fact that she received upon one occasion from her husband a check for the sum of §5,000.

This evidence, together with the fact that the addition was to be made as a room for the defendant’s husband, was strikingly at variance with the idea that she was the person who, by reason of the conversation transpiring upon the single occasion when she was met by the plaintiff, became hable to him for the performance of his services.

The plans for the work emanating as they did from the plaintiff's own office, the estimates which he obtained, the correspondence passing between himself and the husband, all indicate as well as emphasize the fact tobe, that the work was not only to be done for him, but that it was throughout so understood by the plaintiff himself, and under these circumstances the court was not required to submit the case to the jury for them to conjecture, or speculate upon a mere probability whether the defendant had not incurred a liability for the plaintiff’s services. The evidence was too uniformly against him, which w;as reliably furnished by the documents introduced into the case in the course of his own examination as a witness.

Their effect was to overcome what may be described as an ambiguous interview between the- plaintiff and the defendant, concerning this work, and to settle the question against him that it was the work of the husband, and so recognized by him throughout, and for which he alone should be held accountable.. As the proof appeared, the court was right in withdrawing the case from the consideration of the jury. This general subject was considered in Wilds v. Hudson River R. R. Co. (24 N. Y., 430), where in the course of the prevailing opinion it was held, that where the court would be justified in setting aside a verdict as clearly against the weight of evidence, it was its duty to nonsuit the plaintiff. Id., 433. And the same rule was declared in Dey v. N. Y. Central R. R. Co., 34 N. Y., 9. The authorities were there examined, and the result was stated to be that “if the evidence is not sufficient to warrant, a verdict, or if the court will set aside a verdict if found, it is the duty of the court to nonsuit a plaintiff. Id., 13. It is true that this rule was not followed in Colt v. Sixth Av. R. R. Co., 49 N. Y., 671. But as these authorities do not appear to have been intended to be overruled by this decision, and the rule seems to be founded in good sense, the case in which this last decision was made may be considered tó be exceptional, on account of some peculiar circumstances, not appearing by the report. The rule itself is further maintained by Wombough v. Cooper (2 Hun, 428) and by Commissioners, etc., v. Clark, 94 U. S., 278. There also the authorities were examined, and they were considered to maintain the proposition which has been stated. It was there added that “decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury,” but the modern decisions have established a more reasonable rule, to wit: that before the evidence is left to the jury there is, or may be, in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Id. 284.

The evidence in this case concerning the employment of the plaintiff by the defendant is not only of this infirm character, but by that which was written and forms the most reliable basis of what was the plaintiff’s relation to this work, this slender evidence was wholly overthrown, and it was the duty of the court to exercise its authority, as it did, and dismiss the plaintiff’s complaint.

The judgment appealed from should consequently be affirmed.

Brady, J., concurs.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Constance B. Price, App’lt, v. Walter J. Price al., Res’pt.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Dower—How admeasured—Code Civil Procedure, § 1609.
    The widow is not entitled to he endowed in each separate parcel of land which had been owned by her husband during the period of the marriage. The court in all cases has the power to set-off as the dower of the widow a separate and distinct parcel of the real estate, and it must be done where it can'be, and at the same time will be for the best interests of all parties concerned.
    2. Same—Common law rule.
    The common law rule, that a widow has a right to dower in each separate and distinct parcel of land owned by her husband during their marriage, should be subordinated to the equitable rights and interests of other parties in the property. And where it would be inequitable and unjust to assign dower in certain lands conveyed by her husband during his lifetime with warranty, her dower should be admeasured to her in other property affected by no such rights and interests.
    Appeal from an order denying a motion to confirm the report of a referee for the admeasurement of dower.

      George H. Starr, for app’lt; William Peet, David Wilcox, James P. Marvin and Frank L. Hall, for resp’ts.
   Daniels, J.

The plaintiff has been held entitled in this action to recover dower in the real estate owned by Walter W. Price during the time of her intermarriage with him, and until the entry of a decree annulling that marriage. The controversy, as it was then disposed of, is reported in 33 Hun, 76. Under that decision, an interlocutory judgment was recovered directing the plaintiff’s dower to be admeasured in the real estate so owned by her husband, who departed this life on the 6th of June, 1876, and a referee was appointed make such admeasurement of her. dower. The property in which, under this decision, she is entitled to dower consisted of four separate and distinct parcels of land. Two parcels are still owned in severalty by two of the children of Walter W. Price. One, consisting of about fifteen acres, was conveyed by the deceased to his son, the defendant Walter J. Price, in July, 1875, and that has since been mortgaged to the Glens Falls Fire Insurance Company to secure the sum of $10,000. This property consists of about fifteen acres of land having no substantial rental value. The deceased left a will by which he devised certain premises, consisting of a lot of land on Hammond street, in the city of New York, to his son Charles G-. Price. He sold and conveyed this property to the rector, church wardens; etc., of St. John the Evangelist Church. The church acquired the title for a valuable consideration without notice of the plaintiff’s right to dower therein. The testator also devised to two of his sons, as tenants in common, a house and lot known as No. i Van Ness Place, in the city of New York, which they conveyed to their sister, Mrs. Ashmead, and she afterwards sold and conveyed the same property to Josephine Little for the consideration of $11,000. And she afterwards conveyed it to Mr. Wedeland. The rental value of this property was found by the referee, upon evidence sustaining the conclusion, to be the sum of $776, after deducting taxes and water rents, and of the Hammond street lot to be about the sum of $790 after making the same deductions.

The remaining property in which the plaintiff was entitled to be endowed consisted of two adjacent pieces of land on the westerly side of Lake George, containing together about seventy-three acres, and a small island situated near these premises in the lake. This land was divided by only a road running in a northerly and southerly ■direction, and upon that portion of it, situated westerly of the road, valuable buildings had been erected prior to the decease of the testator. This piece consisted of 33 75-100 acres, and the two pieces together, including the island, produced an annual rental varying from eight to thirteen hundred dollars. The dwelling upon it was designed for a summer residence, and the property had been improved to make it convenient, attractive and desirable for such a residence. But the referee considered it to be impracticable to assign the plaintiff her dower in this property, and was of the opinion that it should be sold and her dower ■estimated and paid to her out of the proceeds. It is true that no such express direction was given by him, but that was evidently the opinion upon which his final conclusions were founded. The court, upon the motion to confirm his report, dissented from his conclusion as to the inability to assign the plaintiff’s dower in this property, and ordered the case to be referred back to the referee to set off to the plaintiff her dower in that property, and the plaintiff has appealed from that order, considering it to have been unauthorized and not within the power of the court to make , it. And her counsel has endeavored to sustain this view in support of the appeal under the general statutory authority, declaring that' a widow shall be endowed in the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage (2 R. S. [6th ed.] 1121, sec. 1), and the common law rule maintaining her right to dower in each separate and distinct parcel of such lands.

But it was considered by the Chancellor in Wood v. Keyes (6 Paige, 478), that this general direction should be subordinated to the equitable rights and interests of other parties in the property. And where it would be inequitable and unjust to assign dower in the lands conveyed by her husband during his lifetime with warranty, that her dower should be admeasured to her in other property affected by no such rights or interests. The authority of the court to make this decision has been drawn in question in support of the appeal, and the case of Schnebly v. Schnebly (26 Ill., 116), decided under a like statutory provision has been relied upon as supporting this objection. And it is true that the court there announced and acted upon the common law principle which was held to be consistent with the statute, that the widow was entitled- to be endowed in each separate parcel of land which had been' owned by her husband during the period of the marriage. And the case of Atkin v. Merrell (39 Ill., 62), followed this authority. But these cases require no departure to be made from the doctrine of that of Wood v. Keyes, for the reason that the provisions of the Code of Civil Procedure concerning the admeasurement of dower have not only followed, but have enlarged the effect of this authority. For by subdivision 1 of section 1609 it has been in the most general manner directed that the referee or commissioners, must, if it is practicable, and in their opinion for the best interests of all the parties concerned, admeasure and lay off as the dower of the plaintiff a distinct parcel constituting one-third of the real property of which dower is to admeasured. And if that is practicable, or for the best interests of all parties concerned, then that fact is to be reported to the court. This phraseology empowering the referee or the commissioners to set apart a distinct parcel of land for the dower of the plaintiff, was not contained in the provisions of the Revised Statutes concerning this subject. There the direction was that the commissioners should “admeasure and layoff as speedily as possible the one-third part of the lands or premises embraced in the order.” 3 R. S., (6th ed.), p. 777, § 13; p. 578, § 51. And this additional direction empowering the referee or commissioners to admeasure and lay off “a dis- „ tinct parcel ” of the lands must have been designed to enlarge the authority of the court over this subject, and it has been employed by way of contrast to other parcels or portions of - the real estate of the deceased husband. This significance of the phraseology is not only indicated by the language itself, but by the manner in which it has been employed, in section 1599 of the Code of Civil Procedure, where a distinct parcel is distinguished from other real estate of which the husband may have died seized or alienated by one conveyance to one or more other persons. That the employment of these terms were designed and intended to have their appropriate office and. effect in the proceedings, further appears from sections 1610 and 1613 of the. Code. For care has been taken where that can be done, and the rights' and interests of other parties shall be promoted thereby, to restrict the property to be set off as the dower of the widow to a distinct parcel of that in which she may be entitled to be endowed.

It has been urged that this construction should be limited to the class of cases in which the widow indicates her willingness to receive a gross sum in satisfaction and discharge of her right of dower. And where she may consent to receive that sum in the manner provided for by the statute it has been further directed by section 1619 that a reference shall be ordered to ascertain whether a distinct parcel of the property can be so admeasured and laid off without material injury to the interests of the parties, and if it cannot that then a sale shall be made, out of the proceeds of which such a sum of money shall be paid to her. The next section has further provided where the widow may consent to receive the same, for the appropriation to her of a distinct parcel of vacant, or unimproved lots, to be owned by her in severalty and fee simple for and as her dower. These sections are substitutes for the enactments contained in chapter 111 of the Laws of 1810, and in no manner affect or abridge the authority provided by the preceding sections for setting off to the widow a distinct parcel of the real estate. But they especially provide for a class of cases not enumerated in those sections, and they in no manner enlarge or extend in the use which they have made of it, this phraseology which has been inserted and repeated in these sections of the Code, but whenever this language has been employed, the same significance is required to be given to it. What is a distinct parcel of the property in one case is no more nor less than a distinct parcel in the other, and the phraseology must have been designed and intended to have the same significance and effect wherever it has been employed in this part of the Code. And that was to confer upon the court in all cases the power to set off as the dower of the widow, a separate and distinct parcel of the real estate.

That has been positively required to be done where it can be, and at the same time will be for the best interests of all the parties concerned. And the referee has concluded, from the evidence produced before him, that it was for the best interests of all the "parties concerned that the dower should be secured to the plaintiff out of this property-situated upon the westerly side of Lake George. And in this conclusion he is sustained by the manifest injustice of directing dower to be apportioned to the plaintiff out of the houses and lots on Hammond street and Van Hess Place in the city of Hew York. That property has passed into the hands of purchasers for value without notice of the plaintiff’s rights, and to assign her dower in those lots would necessarily entitle their owners to reimbursement for the amounts paid from the estate of the testator, or under the covenants of warranty contained in the deeds conveying the property, and that should not unnecessarily be done. The lands conveyed to Walter J. Price, and situated between what is known, as the Bolton road and the westerly bounds of Lake George, are in no manner adapted to the plaintiff’s use or enjoyment as' her dower, for no income can be derived from that which would afford her any remuneration whatever for her claim. And in this state of the property the seventy-three acres upon which the buildings were erected by the testator in his lifetime and still owned by his devisee seem to be all that can justly be appropriated to the satisfaction of the plaintiff’s right of dower.

The referee concluded that the property could not be so divided as to set any portion of it off to the widow in satisfaction of her entire claim for dower in these four parcels of property. But the evidence taken by Min very decidedly preponderates in support of the view adopted at the special term, when the order was made from which the appeal has been taken, and that is, that tMs property can well be divided upon an easterly and westerly line, setting off to the plaintiff that portion containing the buildings standing upon it, and so much of the land as would yield to her at least one-third of the rental value of all this property. Three witnesses, whose knowledge of the property sustain their opiMon, have expressed their views to the effect that the land can be so divided, and its locality, extent, condition, value and rental seem to sustam that view. The evidence opposed to it was very slight and inconclusive, and failed against the other testimony upon the hearing to sustain the conclusion adopted by the referee. As the interests of the parties were proved and found by the referee, and to which no exception has been taken by either of them, and the evidence was presented concerning the ability to make this division of the land, the order made at the hearing was a proper one, and it should be affirmed, with costs and disbursements to abide the event of the action.

Bkady, J., concurs.


text:
    James J. Nealis, Receiver, etc., App’lt, v. Henry Adler et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Partnership—Power of partners—Fraud.
    Is is not necessarily a fraud for one partner, without the knowledge of the other, to make and deliver notes of the firm to relatives, if it was done in the business of the firm, even though it may have been thereby intended to appropriate the property of the firm to the payment of these demands to the exclusion of other creditors.
    2. Same—Power to bind other partners.
    A partner may create obligations binding on the firm and under which its property may be taken and sold, without the assent of his co-partners.
    3. Same—Omission to inform partner of service of summons has. no EFFECT ON JUDGMENT.
    The designed omission of one partner to inform the others of the service of a summons on him in regard to a firm matter in and of itself has no such effect on the judgment or execution as to prevent the appropriation of the firm or joint property to its payment.
    4. Evidence—Latitude allowed in insolvent assignment matters.
    In insolvent assignment matters where a fraudulent intent in the disposition of property is alleged to have actuated the parties, great latitude in the investigation and in the admission of evidence is allowed, as an unlawful intent can ordinarily be proven by circumstances, and however slight they may be, if they legally tend to prove the case, they should be received.
    Appeal from judgment directed by the special term.

      Samuel S. Thomas and A. Blaumensteil, for app’lt; Stern & Meyers, for resp’t.
   Daniels, J.

The plaintiff, as receiver of the property and effects of the partnership of Adler & Schoenhof brought this action to obtain a judgment declaring the recovery of six judgments and the levies made under them, and an assignment of the collectable accounts of the firm fraudulent, and for an accounting and recovery of the same. The judgments were recovered in the city court upon the services of the summons upon the defendant Adler alone. Before the suits were commenced this defendant made and delivered three promissory notes to the plaintiff in three of the actions, who is his son, which were made payable respectively without grace in two, three, and four days from the 10th day of October, 1885, each for the sum of $633.22. And similar notes were made on the 12th day of October, 1885, and delivered to Solomon Bachman, one for the sum of $1,512 and the other two for $1,500 each, due in one, two and three days. The notes were all made in the firm name by the defendant Adler (but who was authorized to make notes in its name), and without the knowledge of Ms co-partner. The persons to whom these notes were made and delivered were partners, and Solomon Bachman was the uncle of his co-partner. When the notes became due the suits were commenced upon them, and judgments recovered on which the property of the firm was taken in execution. But it was not necessarily a fraud for one partner without the knowledge of the other to make and deliver these notes, as long as the evidence showed that to have been done in the business of the firm, even though it may have been thereby intended to appropriate the property of the firm to the payment of these demands, to the exclusion of the other creditors. For while it is true'that one partner is legally incapable of making a general assignment of the partnership property preferring certain of the firm creditors over the others, a partner may create obligations binding on the firm, and under which its property may be taken and sold, without the assent of his co-partner. And he may in like manner sell or transfer partnership property to satisfy or secure a partnership indebtedness. These are acts within the scope and comprehension of the partnership business, and may be transacted by either of the partners, while that of assigning the property in trust for the benefit of creditors is not, and for that reason cannot be done by one partner in the absence of actually expressed or implied authority from the other. This subject was fully considered in Mabbett v. White (12 N. Y., 442), and in Graser v. Stelwagen (25 N. Y., 315), and the law is to that extent considered to be settled.

The notes which were given by Adler in the name of the firm were founded on a legal consideration. Those to his son Herman Adler were for an indebtedness created by his check given on the 1th of November, 1884, for the sum of $4,118.61, payable to the order of Adler & Schoenhof, and indorsed by Adler in the firm name, the amount of which was carried to its credit and used in its business. The other partner Schoenhof testified that this money was obtained to balance the indebtedness of his co-partner Adler to the firm. But that was denied by him, and as the amount was afterwards used without dissent as part of the assets of the firm, the fact could very well be found that it was a loan directly to the firm, as the check by which it was made imported the fact to be. That this was understood to have been its form was also disclosed by the letter of Schoenhof written in July, 1885, in which it was proposed as a condition to the continuation of the business that this debt should be specially assumed by his partner. That was not done, and as it was then evidenced by a note of the firm dated when the loan was made, but in fact given four months afterwards, and afterwards carried into another, which was superseded by the three notes on which the judgments were recovered by Herman Adler, it con-tinned to be throughout the debt of the firm, and not that of the partner Adler.

The other three notes were as well sustained as demands against the firm. For it was proven by the evidence that they were given on account of an indebtedness created by the payment of a debt owing by the firm to the Ninth National Bank. To take up the note of the firm held by the bank for that debt, the defendant Bachman made and delivered his check payable to the order of the firm for the sum of $4,512, which was the aggregate amount of the three notes on which the judgments were recovered in his favor. It is true that the payment of the debt to the bank released collaterals owned by Adler and held by it as security. But these, together with the partnership accounts assigned to him by Adler to secure about $16,000 of further but .contingent indebtedness, are still held.by Bachman. This indebtedness had not matured, but still it was a legal consideration for the assignment of the accounts, if the assignment was made in good faith, as the firm was insolvent, and it would in the end devolve on Bachman to pay the obligations. Neither were judgments made inoperative or unlawful by reason of their recovery on the service of the summons on Adler and not on his partner, for the law has provided for that course of proceeding, and when it has been followed the execution may be levied upon the joint property, which in that manner can be applied to the payment of the judgment. Code Civil. Pro., §§ 1932-35. And the designed omission _ to inform Schoenhof of the service of the summonses in and of itself had no such effect upon the judgments or executions as to prevent this appropriation of the firm or joint property to their payment.

The acts which have been proven by the evidence all have the sanction and authority of the law when they have originated and been controlled by the sole design of paying and satisfying partnership obligations. And that such was the design of Adler and of the persons benefitted by such acts could be found as it was from the proof in the ■case. And it may not have been changed if the evidence excluded had been received, as portions of it should have been when it was offered. For as the parties co-operated in what they did, what was said by either to explain or characterize what they did, was admissible as proof. Material portions of evidence at first rejected were after-wards received, but that was not the fact as to a large portion of it. And if the witness had answered that he did not authorize the borrowing of the money from Herman Adler, or stated what was said by his partner when he brought the check to the firm, or what was said when he found the first note had been given, or discovered the entry of the loan in the books, or the conversation relating to that fact, or the amount óf money the firm had in the Ninth National Bank,' or the time the note had to run when it was taken up by the check, or the conversation with Bachman when he was shown the financial condition of the firm, or what Adler directed the bookkeeper to do with the check, or who directed him to date back the note, or draw the check for the interest, it might have been made to appear by certain of the answers that the actuating intention of the parties was ih part to make a friendly disposition of the property of the firm for the future benefit of Henry Adler, and to prevent the other creditors from receiving any part of the assets of the insolvent firm upon their own debts. The transactions between these relatives were by no means free from suspicion. The circumstances were not those usually attending the disposition of the property of an insolvent firm, and whatever would have had a tendéncy, as several of the rejected answers might, to expose an unlawful or fraudulent intent should have been received as evidence. Great latitude is allowed in these investigations, and when an unlawful intent actuates the parties, it can ordinarily be proven only by circumstances, and however slight they may be, if they legally tend to prove the case, they should be received. While all the acts of the parties may have been lawfully performed, depending upon the intent which led to them, they would be unlawful and entitle the plaintiff as receiver to the accounting and recovery demanded if they were in any material respect prompted and produced by the intent of so disposing of the firm property as to prevent the other creditors of the firm from applying any part of that which was so appropriated, to the payment of their other debts. And another trial of the action, with so much of the rejected evidence in the case as is pertinent to that inquiry, may establish that result. Whether it will or not can in no other manner be determined than by a reversal of the judgment and the direction of a new trial. And that disposition should be made of the case.

Brady, J., concurs.


author: Macomber, J.

text:
    James J. Victory, App'lt, v. Julia Krauss et al., Ex’rs, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Abatement and eevivoil—What actions do not survive against personal representatives—Code Civ. Pro., § 3348.
    Actions by a tenant for damages resulting from the landlord’s negligently suffering the premises to become in an unhealthy condition does not survive against the landlord’s personal representatives.

      2. Same—Rules—Assignability of cause of action—Code Crv. Pbo.,. § 1910.
    One of the most comprehensive rules in determining the question whether or not the cause of action survives in favor of or against personal representatives is its assignability. Causes of action for personal injury cannot he assigned.
    Appeal from a judgment of the special term sustaining the demurrer of the defendants, upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

      Louis F. Post, for app’lt; Jas M. Fitzsimons, for resp’ts.
   Macomber, J.

At the time the plaintiff was a tenant of the defendant’s testator, one Pitschke, three of his children sickened and one of them died, as is alleged in the complaint, by reason of the defective construction of a tenement by which deleterious gases permeated the house and penetrated the apartments of the • plaintiff. The charge against the defendant’s testator is, that he negligently suffered the premises to become in that condition and negligently rented the same to the plaintiff without informing him of their dangerous and unhealthy condition.

By the demurrer, two questions are presented for our consideration; the first of which is whether the cause of action, admitting that there was one originally against the-landlord, survives, and is maintainable against .his personal representatives, if that is decided against the plaintiff, it will not be necessary to consider any other question which has been the subject of argument by counsel.

The cause of action comes under the head of personal injury, as defined by subdivision 9 of section 3343 of the Code of Civil Procedure, as it is an “injury to the person, either of the plaintiff or of another.” One of the most comprehensive rules in determining the question whether or not the cause of action survives in favor of or against personal representatives, is its assignability. It is the guide for determining for what injuries executors can be sued as well as for what injuries they can maintain an action. Section 1910 of the Code of Civil Procedure excepts out of the category of matters that may be assigned, causes of action to recover damages for personal injury, and places them on the same basis as a breach of promise of marriage. Two recent cases in the court of appeals have finally and completely settled this question in accordance with the plain language of the Code, namely, the cases of Hegerich v. Keddie (99 N. Y., 258) and Moriorty v. Bartlett (99 N. Y., 651), and these render any extended discussion of the question quite superfluous.

The judgment is affirmed, with costs.

Daniels and Brady, JJ., concur.


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    Philip Tillinghast, Appl’t, v. Francis T. Walton, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    Partnership—When special partner, who is also a customer of the FIRM, ENTITLED TO INTEREST ON CAPITAL.
    A., as special partner in a stock brokerage business, was bound to and did put into the business $100,000, on which he was credited with interest, as the general partners were also, on their capital, at six per cent. A., besides being a partner, dealt largely with the firm as one of its customers, and a stock account was kept with him as such. And so far as that account was in debt, he was charged with interest. Held, that he was entitled to have interest credited to him on his capital for the last quarter, although he had drawn drafts on the firm for a sum equal to more than half of his capital, such drafts being neither drawn against nor charged to his capital, but to his stock account as a customer of the firm.
    Appeals by the plaintiff and by John 0. Atterbuiy, defendant, from a judgment recovered on the report of a referee.

      John L. Logan and M. S. Hudgins, for appl’t; Joseph A. Shoudy, for resp’t.
   Daniels, J.

The parties were partners in business as stock brokers. The plaintiff and the defendant Atterbury were the general and the defendant was the special partner. As the capital of the special partner he was bound to and did put into the business the sum of $100,000, on which he was to be credited with interest, as the general partners were also, on their capital, at the rate of six per cent. And the accounts were kept on the books in that manner. For the last quarter of the year 1883, he was allowed, as he had also been credited, the sum of $1,500, interest on this amount of capital. This was resisted upon the trial, as it also is on the appeal, because of drafts drawn by him on the firm in October and November, and paid by it. These drafts amounted to much more than half this sum of $100,000. But they were not charged against his capital in the books of the firm until the close of the year. That was left accordingly in an apparently unimpaired condition. But that would not change the rights or obligations of the partners, if in fact the capital had been reduced by these drafts. But it was not; for besides being a partner, he dealt largely with the firm as one of its customers. In that relation to it a stock account was kept with him, and in that the moneys advanced on the drafts were charged. And, so far as he appeared to be in debt on that account, he was charged with interest, which was from time to time compounded, as it was with the other customers of the firm. The advances were dealt with—as in fact they were—as loans to Walton in his stock transactions, carried for him by the firm. And as the drafts were neither of them drawn against nor charged to the capital, they did not diminish its amount nor deprive him of the stipulated interest upon it. Neither this interest nor any part of the $2,400 can legally be deducted from the amount for which the judgment has been entered.

No other disposition can be made of his personal account of $9,316.12 which was made up of items drawn by him prior to October, 1883. No part of that was charged to or carried over to Ms capital account until the end of the year when the business of the firm was closed.

The firm made four loans in the course of the year for the interest on part of wMch it has been urged that the defendant Walton should be charged the sum of $909.73. But these loans were all effected for the business of the firm, and not especially for the use or benefit of Walton. The interest paid upon them was necessarily a part of the expenses of the business, as it was charged on the books, and under the articles was to be borne as other expenses or losses were, one-half by Walton and the other half in equal parts by each of the other partners, and charging it up as part of the expenses of the firm made that division of the interest by dimimshing in the same manner the share of each partner in the profits of the business.

There was np cause for charging the defendant Walton, with any greater amount of the losses than were in fact borne by him. None were shown to have been sustained beyond the interest paid upon loans, and for his share of that he was made accountable in the division of the profits of the business, The payment of that interest was not specially traceable to him, for the reason that the moneys advanced to him was in Ms relations of a customer, and they were not applied to reduce his capital until the stock account was closed and the final closing of the business, at the end of the year.

It has also been insisted that a further sum of $1,000 should be debited to this defendant, but no grounds upon which that can be done have been indicated. In all substantial respects the accounts have been settled as they were supported by the books, and the transactions of the business. No injustice appears to have intervened in the disposition of the case, and the judgment should therefore be affirmed, with costs.

Macomber and Brady, JJ., concur.


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    Walter K. Yorston, Resp’t, v. James W. Bouton, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Contract—Complaint—Demurrer—When complaint does not STATE CAUSE OF ACTION—CODE OF ClV. PRO., § 533.
    Where, hy the agreement sued, on, plaintiff agreed to canvass for a cer tain work to tie sold on subscription, and was to receive for his services in so doing $100 for each subscriber who might take and pay for the complete work; but the plaintiff failed to allege that the persons whose subscriptions are stated to have been obtained by him did in fact take and pay for the complete work. Moreover, it was not made to appear by the complaint that any part of the publication was at any time delivered to or received by the subscribers. Held, on demurrer that that part of the complaint was bad as not stating a cause of action.
    2. Same—When complaint does state cause oe action.
    Where, by another portion of the same agreement, the defendant agreed to pay the plaintiff a certain sum upon all subscriptions taken by H. The right of the plaintiff not being made dependent upon the subscribers taking and paying for the work. Held, that the mere averment that H. took a certain number of subscribers for said work was sufficient.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      H. B. Glossen, for app’lt; Frank F. Vanderveer, for resp’t.
   Daniels, J.

The action is brought upon a contract annexed to and made a part of the complaint, and certain alleged subdivisions have been demurred to on the ground that they fail to state facts sufficient to constitute a cause of action. By the agreement, which was subscribed by the parties, the plaintiff agreed to personally canvass or solicit, subscriptions for a publication of the works of Meissonier, to be published by the defendant. He agreed to devote his whole time and attention to procuring subscribers, and for his services in so doing he was to be paid the sum of $100 for each subcriber who might take and pay for the complete work. And the first cause of action or claim, set forth in the complaint, is to recover the compensation agreed to be paid by this portion of the contract. But the plaintiff has failed to allege that the persons whose subscriptions are stated to have been obtained by .him, did in fact take and pay for the complete work published by the defendant, and by the agreement he undertook to pay the stipulated amount only for subscriptions made by subscribers who might take and pay for the work. The complaint contains no averment that this condition, upon which the plaintiff was to be paid, had been performed, as that might have been done in general language, under the authority of section 533 of the Oode of Oivil Procedure. And he was, therefore, bound to show by his complaint before a legal right could be presented for the recovery of this part of the demand, that the agreement upon which his right to it depended had been- performed. And that he failed to do, inasmuch as it has not been stated that either of the subscribers did take, or pay for, the work which was to be published. Neither has any excuse been set forth justifying the omission of such an averment.

In addition to this defect, it has not been made to appear either expressly, or inferentially, by the complaint, that any part of the publication was at any time delivered to, or taken by, the subscribers, and by the agreement the defendant bound himself only to pay as the work itself should be in fact delivered. The payment for which he obligated himself, was to be made in three equal installments, the first third upon the delivery of the- first part of the publication, the second upon the delivery of the sixth part, and the last payment upon the delivery of the eleventh part of the work. No delivery of either part of the work has been alleged, and the complaint for this reason fails to show that any part of the amount to be paid to him for the subscriptions had become due at the time when the action was commenced.

By another portion of the agreement the defendant agreed to pay the plaintiff the sum of forty dollars upon all subscriptions taken by Hr. C. F. Hervi, and it is averred in the complaint that he took five subscriptions for the sale of the work. The right of the plaintiff to this sum of forty dollars for each of these subscriptions was not made dependent upon the subscribers taking and paying for the work. Neither was the, amount agreed to be paid, divided into instalments, as the sums previously considered were, by the agreement. This right of the plaintiff was made dependent only on the fact of the subscriptions being taken by Hervi. And as it has been averred in the complaint that he did take these subscriptions, which had been received by the defendant, it appears from it that the plaintiff became entitled to demand and receive these sums from the defendant. And as he failed to pay them to the plaintiff when they were demanded, a right of action for their recovery accrued to him under this portion of the agreement.

By another portion of the agreement the defendant undertook to pay to the plaintiff the sum of fifty dollars for his commission on each subscription taken by the defendant at his store in the city of New York. And to present a cause of action under this subdivision of the agreement it has been alleged that the defendant did obtain and take nine subscriptions for the work. It has also been averred that eight other subscriptions were taken and were received by the defendant, and for each of these this commission of fifty dollars is claimed by the plaintiff. But by the portion of the agreement upon which these claims depend, they were made payable in three equal instalments in the same manner as the $100 subscriptions obtained' by the plaintiff himself. And that is, one-third on the delivery of the first part of the work, another third on the delivery of the sixth part, and the remaining sum on the delivery of the eleventh part of the work. And no allegation or averment has been made that any portion of the work had ever been delivered or received by either of these subscribers. And these portions of the complaint, like that which was first considered, contain no general averment that the conditions on which the money was made payable, had been performed.

The plaintiff also claimed the sum of $100 for each of four other subscriptions obtained by William E. Yorston, and received by the defendant, prior to the 1st of September, 1884 These subscriptions are alleged to have been obtained without the knowledge, or consent of the plaintiff, and no facts whatever have been averred bringing this portion. of the plaintiff’s case within any part of the agreement. If it should be considered to be within the second subdivision, then the complaint is fatally defective in failing to show, or state, that the subscribers have taken, or paid for, the complete work, or that any portion of the work had at any time been delivered to either of them. In these respects, as well as in the failure to state facts disclosing any right on the part of the plaintiff to these subscriptions, the complaint is insufficient.

These are all the subdivisions of the complaint which have been demurred to, and to all, except the cause of action mentioned in subdivision three, the complaint is clearly defective, and the demurrer should have been sustained. But as to the cause of action contained in subdivision three, the averments disclose a case within the last subdivision of the agreement entitling the plaintiff to a recovery, and to that extent the demurrer was properly overruled.

The judgment from which the appeal has been taken should be so far modified as to sustain the demurrer to the first, third, fourth and fifth causes of action contained in the complaint, and as so modified the judgment should be affirmed, but without costs of the appeal to either party, and with liberty to the plaintiff to amend bis. complaint within twenty days after notice of this decision.

Brady, J., concurs.


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    The United States Trust Company, of New York, Resp’t, v. Theodore M. Roche, as trustee, etc., impleaded with others, Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Trust estate—Trustee of express trust catotot mortgage it—Power 03? SUPREME COURT UNDER 2 REV. STAT. (6TH ED.), PAGE 1110, § 78.
    T., who held the title to real estate as trustee under a marriage settlement, gave a mortgage on the trust property pursuant to an order of the supreme court made 1881. Held, that the court at that time had not power to make such an order (see 2 Rev. Stat. [6th ed.], page 1110, § 78); that the mortgage was void as it contravened a trust; that although all the money raised upon the mortgage was obtained and used to discharge prior liens (back taxes), it could not be enforced against the property.
    2. Same—Laws 1882, chap. 275, not retroactive.
    Chapter 275 of Laws of 1882, giving the supreme court power to make such an order is not retroactive. -
    3. Same — Foreclosure — Necessary parties defendant— Remainder-man.
    A remainder-man is personally interested in any incumbrance that the trustee may put upon lands whether in pursuance of the terms of the trust or otherwise, and is a necessary party defendant in a foreclosure of a mortgage on the trust property.
    Appeal from a judgment directed at special term, for the foreclosure of a mortgage and sale of the mortgaged premises.

      Edward W. Sheldon, for resp’t; J. C. Bolton, for appl’t.
   Macomber, J.

In November, in the year 1858, James A. Foster, in contemplation of marriage with Anna S. Stagg, entered into an agreement in writing with Charles H. Towne, party of the second part, and Anna S. Stagg, party of the third part, by which, in consideration of the intended marriage, Foster sold and conveyed to Towne and his successor and assigns, the premises known as Nos. 40, 42 and 44 Bond street and 43 and 47 Great Jones street, in the city of New York, in trust from and after the marriage, to receive the rents and profits of the moiety and share of said premises from time to time during the life of Anna S. Stagg, and to apply the same to her benefit, free from the clebts, control or management of Foster. The marriage subsequently took place, of which there is now Hving a son, James Clinton Foster, who is of full age. On the 9th of September, 1881, on application of trustee Charles H. Towne, the supreme court at special term, by an order dated that day, directed the trustee Charles H. Towne, to make, execute, acknowledge and deliver a bond and mortgage on the trust property for an amount sufficient to pay one-half of the arrears of taxes and water rates and the interest thereon, which had been permitted to accumulate since the year 1870. The mortgage in question was given pursuant to such authority. The defendant Roche is the successor of trustee Charles H. Towne..

The answer puts in issue the validity of the trust deed and alleges that James Clinton Foster is a necessary party to the foreclosure. The marriage settlement provided that after the decease of the wife, the trust imposed upon the trustees should continue for the purpose of selling such moiety and paying and dividing the purchase moneys received therefrom .among the lawful issue of the husband and wife.

If this mortgage has any validity whatever, and if it is sought by the foreclosure thereof to give the purchaser a good title at the mortgage sale, it is difficult to see why James Clinton Foster’s rights should not be cut off. Being a remainder-man, he was not only interested in the execution of the original trust, but personally interested in any incumbrance that the trustee might put upon the lands, whether in pursuance T»f the terms of the trust or otherwise. Unless he be a party to this proceeding he would at all times thereafter have the right and power to question the validity of the mortgage and could not be debarred therefrom except in an action for that purpose. Inasmuch, therefore, as the objection was distinctly taken by answer, we should feel constrained to reverse the judgment and grant a new trial, with the direction to bring in James Clinton Foster as a defendant; but in view of the determination to which we have arrived on the other branch of the case, the present rights of James Clinton Foster are, perhaps, of little moment.

The statute (2 R. S., 6th ed., p. 1110, § 78) declares that where a trust shall be expressed in the instrument creating the estate, which is the case before us, “every sale, conveyance or other act of the trustees in contravention of the trust, shall be absolutely void.” In Cruger v. Jones (18 Barb., 467) which was an action to determine the validity of a marriage settlement, it was held that a mortgage, which is necessarily attended with a power of sale, was an act in contravention of the trust to hold the estate and receive the rents and profits from it and pay them over from time to time to the designated beneficiary, and was consequently void. In that action, as in this, it was claimed and proved that the moneys realized by the giving of the mort- ' gage were expended upon the estate for the benefit thereof and for the benefit of the cestui que trust. In that case, as in this, also, the mortgage was given mider the direction and sanction of the court. The decision, however, was, that notwithstanding the sanction of the court, the mortgage could not be enforced against the trust property. So,, also in the case of Douglass v. Cruger (80 N. Y., 15), where the action was to foreclose a mortgage made by the cestui que trust, after the trustee had conveyed to her, under the direction of the court, all her interest in the land, the parties assuming and believing that the trust itself had been extinguished. The court then said: “This was one of the express trusts authorized by the statute, and it is provided that where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trust in contravention of the trust, shall be absolutely void.” The court also refers to another section of the statute which was applicable equally in this action as in that, which declares that “no person beneficially interested in a trust for the receipt of the rents and profits of the land can in any manner assign or dispose of any such interest. The trustee, therefore, in this case could not destroy the trust by the conveyance to Mrs. Crager, and she could not convey or mortgage her right to have the trust performed, which was really the only right which she had in the estate conveyed to the trustee. The trustee, having no power to convey the land, his conveyance, otherwise absolutely void, could not be rendered valid by an order obtained from the court upon the joint petition of himself and Mrs. Crager. The supreme court has not the power to destroy a valid trust. The purpose of the statute was to make those trust estates and interests indestructible and absolutely inalienable during the existence of the trust; and if they could be rendered alienable by order of the court, the whole scheme of the statute would be greatly impaired and its purpose thwarted. The statute does not confer upon the supreme court power to authorize such conveyances.” Under these authorities, notwithstanding the fact that all the money raised upon the mortgage was devoted to the payment of back taxes, the mortgage appears to us to be absolutely void and cannot be enforced. The learned judge, however, in the opinion below, bases his decision upon the fact that the moneys were so obtained and used for the purpose of discharging prior liens, which, as he says, could be enforced against the property. .Very true, but enforced by whom ? The hens could be enforced, in all probability, by the sale of the premises under the tax laws embraced in the Consolidated Act, but upon a sale thereof under such proceedings, there would be the valuable right of redemption which would not obtain under a sale upon this mortgage, if the mortgage is held to be good.

The evidence in this action showing that the mortgage moneys were devoted to the payment of prior taxes and assessments was duly and properly objected to.

Under the complaint, which is a simple and ordinary one for the foreclosure of a mortgage, there is no allegation to the effect that' the plaintiff had become subrogated through any imaginary equitable principle to the rights of the .city of New York to enforce the liens for taxes upon the property. The action was begun simply in foreclosure. The mortgage and the relief which was demanded and the judgment which was given were but the usual foreclosure and sale of the premises, and it was all done in accordance with the terms of the mortgage alone, and not through any other consideration whatever, and the sole cause of action was a mortgage, too, which under the authorities already quoted, and under the plain reading of the statute, was absolutely void. Under these circumstances, no other equitable relief, even if it could be had in any other action, could be granted the plaintiff in this action.

• We are not unaware that the legislature of the state, since this mortgage in question was given, has passed an act (chap. 275 of the Laws of 1882) by which section 78 of the Eevised Statutes above mentioned has been so changed that the supreme court now has the power, in a suitable and proper case, to permit the mortgaging of real estate for the purpose of preserving and improving the same. This act, however, can have no retroactive effect, and the plaintiff’s rights must be determined by the statutes as they existed at the time of the execution of the instrument.

If these views are correct, a new trial would not subserve any useful purpose to the plaintiff, and it follows, therefore, that the judgment should be reversed and judgment ordered for the defendant with costs.

Daniels and Brady, JJ., concur.


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    Henry W. Gray, App’lt, v. George T. Greene, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October, 15, 1886.)

    1. Pabtneeship—Accounting—When eight to, accbubs afteb dissolution.
    0
    Where after the dissolution of a partnership the business thereof requires for its completion, continued transactions and no default or misconduct can be alleged on the part of either of the parties, as a ground of action, the law permits a reasonable time to be taken for its completion before a right to have the settlement of the partnership accounts made by the courts will accrue.
    :2. Same—Effect of agbbement empowebing one paetneb to liquidate
    Where at the dissolution of a partnership an agreement is made between the parties, constituting one the liquidating partner of the firm, that places the unfinished business under his control and the agreement is a defense to a suit for accounting brought by either of the parties until said partner has had reasonable time to liquidate and adjust the firm’s affairs.
    4. Same—Statute ff limitations —Code Crv. Pbo. § 388.
    The statute of limitations, Code, Civ. Pro. § 388 will not begin to run against the right to an accounting as long as the liquidating partner diligently proceeds, under an agreement, with the settlement of the partnership affairs.
    Appeal from a judgment entered on the report of a referee.

      John B. Dos Passos, for app’lt; O. C. Suydam, for respd’t.
   Daniels, J.

The plaintiff and defendant were partners in business as brokers and dealers in stocks. Their partnership commenced on the 1st of January, 1870, and it was. dissolved on or about the 21st of October, 1872, and this action was brought for the settlement of the partnership accounts in August, 1884. The defendant by way of a defense set up the statute of limitations, that the action had not been brought within ten years after the right to commence it had accrued, as that was required by section 388 of the Code of Civil Procedure. On the trial • so much evidence was taken before the referee as was deemed necessary to present this defense for his decision, and as he concluded it to be maintained he dismissed the plaintiff’s complaint. Whether he was right or not in directing this disposition of the action depends upon the construction which should be given to this section of the Code. The limitation prescribed by it is the period of ten years after the cause of action accrues. What was intended by the Legislature by this language was the existence of the right to bring and maintain an action for the redress claimed to be recovered in the suit, and it is from the time that right becomes vested in the party that the statute commences to run and from which the period mentioned in it is to be measured. The learned referee concluded that this right of action accrued when the dissolution of the partnership took place and the action was disposed of upon that view. But it does not follow from the dissolution of a partnership that either partner can at the time when, that shall take place immediately institute and maintain an action for the settlement of its affairs. Cases may well be imagined where that can be done and where the right of action immediately accrues, but where the business of the partnership requires for its completion continued transactions, and no default or misconduct can be alleged oh the part of either of the parties as a ground of action, there the law will permit a reasonable time to be taken for the completion of the partnership affairs before a right of action will accrue. Of course that could not be prolonged by unnecessary delay or misconduct, on the part of either of the parties; but as long as no delay of that description or any misconduct intervenes, there neither of the parties would be permitted to appeal to the authority of a court of equity to take the management of the business outc of their hands and settle and adjust'it through its own instrumentalities.

This principle has been considered in quite a large class of cases where the courts have announced the conclusion that the statute will only be held to include the • period of unexplained delay in the settlement and adjustment of the partnership affairs. This was considered in Tatam v. Williams (3 Hare, 347, 358), where that was the conclusion of the court predicated upon authorities at that time stated. In Tood v. Rafferty's Adm’rs (30 N.J.Eq., 254), a similar point was examined, resulting substantially in a like conclusion. And so it was in Hammond v. Hammond (20 Ga. 556), where the general principle was considered to be established, that “the statute of limitations does not commence to run in favor of one partner against the other, even after a dissolution of the co-partnership, so long as there are debts due from the partnership to be paid or debts due to be collected.” And a like view was taken in Massey v. Tingle (29 Mo., 437), where it was said in the course of the opinion that “We know of no principle which declares that the statute of limitations begins to run against a claim to adjust and settle partnership accounts from the time of its dissolution.” Id., 438-9. And equally pointed was the ruling of the court in Foster v. Rison (17 Gratt., 321). This case arose under the provisions of a statute of the state of Virginia declaring an action to be barred for the settlement of partnership accounts after five years from the cessation of the partnership dealings, and it was held that collecting in outstanding firm debts were such dealings and prevented the running of the statute. And in Causler v. Wharton (62 Ala., 358), the court considered the principle to be a sound one, that “where the partnership affairs are unsettled on a dissolution, and one partner, by a written agreement with the other, leaves the partnership assets with him, to dispose of whenever he can do so at a fair price, a continuing trust is thereby created, and the bar of the statute of limitations will not begin to run against the right to an accounting of the partnership dealings so long as the party to whom the assets were delivered acts under the trust or admits that it is still continuing. And Cannon v. Copeland (43 Id., 201), sustains the same general proposition. It was likewise considered in Adams v. Taylor (14 Ark., 62), and Lawrence v. Rokes (61 Maine, 38), sanctions the same general principle.

It is true that it will not apply to a case where the business of _ the partnership has been brought to a complete conclusion, as it is by a general assignment or proceedings in bankruptcy. The former was the case of McKelvey's appeal (72 Penn. St., 409),and of Wilhelm v. Caylor (32 Md., 151). In that class of cases, when the business of the partners has been terminated, the right to an. accounting at once accrues, and an action may be immediately maintained for that object.

But neither these cases nor the principle which they maintain have any application to the present action, for it was proved upon'the trial that at the time of the dissolution of this partnership the firm was indebted in the sum of about $200,000. And it was then the owner of property in addition to three demands which have not yet been collected, but one of which was paid in part in May, 18Y9, April, 1881, February, 1882, and March, 1884. By tie terms-of the partnership agreement, the losses and profits of the business were to be divided between the parties by the plaintiff receiving four-fifths and sustaining an equal amount of the losses, and the defendant receiving one-fifth and sustaining that proportion of the losses. And at the dissolution of the firm an agreement was made between the parties by which the plaintiff was constituted the liquidating partner of the firm. That placed its unfinished business and its management and adjustment in his hands and -under his control. And if an action had been brought at that time either by himself or the defendant for an accounting and settlement of the partnership affairs, this agreement would certainly have been a defense to the suit, and a right of action accordingly had not then arisen for this purpose in favor of either of the parties. The extent- and application of the agreement was not definitely fixed, but under it the plaintiff had a reasonable time, to be measured by the state of the partnership property and indebtedness to liquidate and adjust its affairs.

What that reasonable time may be, has not been shown by anything which transpired upon the trial, it evidently having been deemed inappropriate to the simple question entertained by the referee of the application of the statute of limitations. And it. cannot, therefore,, be held from anything which transpired that ten years had expired since a reasonable time had elapsed to carry into effect the intent of the parties manifested by this agreement. And for that reason the case contains no facts upon which the point can be considered, or determined, whether such a lapse of time had taken place as would entitle the parties, or either of them to disclaim the binding effect of this agreement While it has continued and was in process of reasonably vigilant performance by the plaintiff, the affairs of these parties could not be taken from his hands and brought for adjustment within the jurisdiction of a court of equity for the parties had practically disabled themselves, by making the agreement, from disaffirming it as long as no default or unreasonable delay appeared on the part of the plaintiff, and no-delinquency should be proven against the defendant. Such, a default or delinquency is not to be presumed, but it is to be made the subject of proof, and from that time only would a cause of action accrue under this provision of the statute. When the statute should be held to apply to the rights of these parties must depend upon the facts attending the settlement of the partnership affairs, so far as they have been made the subject of settlement. Its debts appear to have been paid, but what period of time was requisite for that purpose has not been shown. Neither does it appear what time was necessary to appropriate the partnership property to this object. But it was further proven upon the trial that efforts had been directed to enforce and collect demands due and owing to the firm up to the time of the commencement of the action, and that they were in some measure pending at the time of the trial. And the defendant himself in July, 1884, assented to legal proceedings upon one of these demands, but with the proviso that he-should not be charged with any portion of the expense. What particular effect these proceedings should have upon the rights of the parties, or whether any can be attributed to a very small indebtedness of the firm still outstanding, it is not necessary at the present time to consider, for it is evident that the referee was wrong in holding .that the statute of limitations took effect upon the rights of the parties at the time when the dissolution of the partnership occurred. No right of action then accrued in favor of one against the other, but that right was extended certainly as long as the plaintiff diligently proceeded under the agreement with the settlement of the partnership affairs. And what period of time may have been consumed in doing that can only be made to appear by proof exhibiting the manner in which the business was done by the plaintiff.

It has been suggested that as the plaintiff is still acting under the agreement in the enforcement of the three uncollected demands, that the action is premature on that account, but that point was not considered or decided by the referee. And when it shall be, it may be possibly be answered by the circumstance that the defendant has been requested and refused to adjust his own alleged indebtedness arising out of the partnership transactions, and the settlement of its affairs so far as that has been consummated. As the case now appears it should not have been dismissed upon the effect of the statute, but it should have been fully heard and decided after hearing the evidence pertaining to the issues which the parties should be able to procure.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Macomber and Brady, JJ., concur.


author: Daniels, J. Brady, J. Maoohber, J.

text:
    George Henry Warren, Resp’t, v. Rowland M. Hill, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Specific pebfobmance—Evidence—What admissible.
    In an action for the specific performance of an agreement to convey land, the defendant has the right to prove any facts within the issue rendering the claim by the plaintiff for compensation an inequitable one. The rule is that where the claim made for relief in actions of this description is unfair, inequitable or unjust the court will not decree specific performance which may be attended with that effect,
    2. Same—When oba^ testimony allovved to vaby a wbittbn conTBACT.
    In actions for the specific performance of contracts the parties resisting are allowed to prove by paroi evidence that the contract had been entered into by mistake or that an unfair or improper advantage had been taken by the plaintiff in obtaining it. These facts may properly influence the discretion of the court and qualify the right to relief.
    3. Same—Admissibility of evidence to show that it would be inequitable AND UNJUST TO GBANT THE BELIEF SOUGHT.
    This was an action to compel specific performance of a contract by which the defendants agreed to convey to the plaintiff certain lands situated in the city of Newport, by a deed containing a general warranty, and the usual covenants for the conveying and assuring to him the fee simple of the premises, free from all incumbrance. Before the contract was made and also when it was. to be carried into effect, a sewer had been laid through a portion of the premises which the city had the right to maintain and keep in repair, and for that defect in the title the plaintiff was allowed compensation by the judgment which, in addition to decreeing its payment, directed a conveyance to him of the premises. Upon the trial the defendants offered to prove the plaintiff's knowledge that the sewer ran through this property prior to the execution of the contract, and to follow it up by showing that the contract itself was prepared by his attorney, who had searched the title and knew of the existence of' the sewer. Held, that it was error to refuse to admit the evidence. Macombee, J., dissenting. . Higgs v. Pursell (74 N. Y., 370), distinguished.
    Appeal from a judgment recovered on trial at the special term.

      Wheeler TI. Pechham, for app’lt; George G. De Witt, Jr., for resp’t.
   Daniels, J.

The contract for the specific performance of which this action was brought, by its language, obligated the defendants to convey to the plaintiff the property referred to in it by a deed containing a general warranty and the usual covenants for the conveying and assuring to Mm the fee simple of the premises free from all mcumbrances. Before the time when it was made, and also when it was to be carried into effect, a sewer had been laid through a portion of the premises, wMch the city of Newport had the right to maintain and keep in repair, and for that defect in the title the plaintiff was allowed compensation by the judgment, which, in addition to decreeing its payment, directed a conveyance to Mm of the premises.

Upon, the trial of the action the defendants proposed to prove the plaintiff’s knowledge that the sewer ran through this property prior to the execution of this contract, and to follow it up by showing that the contract itself was prepared by his attorney, who had searched the title and knew of the existence of the sewer. This was objected to by the plaintiff’s counsel and excluded by the court. And to that ruling the defendant’s counsel excepted. No objection was taken to the insufficiency of the offer in any respect, but the only objection previously made to that description of proof was, that the preceding conversations and negotiations had become merged in the written agreement, and it was probably in that view that this evidence was excluded by the court. But as this action was for the specific performance of0 the agreement, the defendants had the right to prove any facts within the issue, rendering the claim by the plaintiff for compensation an inequitable one. For the rule is well settled in actions of this description, where the claim made for relief is unfair, inequitable or unjust, the court will not decree a specific performance which may be attended with' that effect. If this evidence had been received, and it is to be assumed for the present disposition of the case that the defendants could have proved their offer, then it would have established the fact that the plaintiff and his attorney, understanding the existence of this sewer in the property, and that it was the purpose of the defendants to convey it in the condition in which it was, prepared the contract and obtained its execution in such a form as to impose the obligation by its language upon the defendants, to convey the premises in the same manner as though the sewer itself had no existence. And that would result in taking an unfair advantage of the defendants, if in fact the plaintiff and his attorney were aware of the existence of the sewer. It would be an imposition upon the defendants to prepare and obtain the contract as they did, without apprising them of the fact that it had been so drawn as to obligate them to convey the property free from the incmnbrance of the easement. It would likewise be of the same character if the understanding between the parties was that the plaintiff should receive the conveyance of the property subject to this servitude. In either case the transaction would" appear not to have been fairly conducted. For if the plaintiff and his attorney knew of the existence of the sewer in the land, that knowledge required that some explanation or provision for the protection of the rights and obligations of the parties, growing out of it, should have been given a place in the agreement. That was not done, but the contract was taken from the defendants without any reference whatever being made to this sewer, or to the formal obligation declared by the contract to protect the plaintiff against it.

It may be that the conduct of the plaintiff and his attorney was entirely free from all criticism, and that it will be so made to appear upon a further consideration of the case. But as it has now been presented, that cannot be assumed, but the court is required to infer from the offer, that knowing of the existence of the sewer, the attorney or counsel for the plaintiff prepared the contract without any reference to it, or exception made concerning it, binding the defendants to execute and deliver such a deed as they were incapable of giving because of the existence of the sewer.

In actions for the specific performance of contracts for the conveyance of real estate, it has been the constant practice of courts of equity to receive proof establishing’ the fact that the decree applied for would be unjust or inequitable by reason of any material mistake, misapprehension or imposition upon the party proceeded against. 3 Greenleaf on Evid., (15th ed.) sec. 361.

It has been urged in support of the ruling made at the trial, that if the proof had been received as it was offered, it would not have shown such knowledge on the part of the plaintiff or his attorney as would charge either with information as to the legality of the easement itself; and the case of Riggs v. Pursell (74 N. Y., 370), has been cited as-an authority sustaining this position, but that, case very materially differs from this in its principle. There the only fact subject to observation indicating any restriction upon the right of the owner to use and improve the property, was-the manner in which the building itself had been erected. And from that it could not naturally have been inferred that it was in this condition by reason of any legal restriction upon the right of the owner, while if the plaintiff was aware of the fact that the sewer existed in and passed through this property, and his attorney had discovered it in searching the title, it might be inferred that it was there by some right existing on the part of the city to place and maintain it there. Certainly the offer was not so deficient in this respect, as to justify the court in excluding the evidence for any reason of this character. Neither could it be excluded under the rule rejecting oral evidence offered to explain, qualify or add to a written instrument. For while it is true that this rule is observed in courts of equity as it is in courts of law, (Hunt v. Rousmanier, 8 Wheat, 174, 211, Brainerd v. Brainerd 15 Conn., 576, 585; 3 Greenleaf on Evidence, [15th ed.], § 366), the courts have, in actions for the specific performance of contracts allowed the parties resisting the suit, to prove by oral evidence that the contract had been entered into by mistake, or that an unfair or improper advantage had been taken by the plaintiff in obtaining it, as facts proper to be considered, to influence the discretion of the court and qualify the right to relief. This evidence under the principle already mentioned, should have been received. But it was not. Neither was any evidence afterwards received upon the trial equivalent to this rejected offer of proof.

If the facts had been proved they would have been entitled to the consideration of the court upon the right of the plaintiff to the compensation allowed by the judgment for the existence of this sewer. And because of the exclusion of the evidence the judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, J.

I think that the evidence offered and particularly referred to by Justice Daniels, should have been received. I concur therefore.

Maoohber, J.

(dissenting).—This is an appeal from a judgement of the special term, by which a specific performance of a contract was awarded to the vendee of a land contract, with an abatement from the purchase price, on the ground that the title of the vendor was not of the character that he agreed to convey by the written contract.

By the contract, which bears date the Jth day of July, 1881, the defendants, excepting Blagden, in consideration of the sum of 89,000, payable as therein mentioned, agreed to sell to the plaintiff certain lands situated in the city of Newport, in the state of Rhode Island, bounded southerly on Ward avenue, westerly on the land of John A. Hazard, northerly on the land of John A. Hazard and land of the heirs or devisees of Robert H. Ives, and easterly on the Annandale road, and execute and deliver therefor a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of the premises free from all incumbrance. The purchase money, excepting the sum of $100, which had been paid at the time of making the land contract, was to be paid on the Sltli day of July and the deed then delivered. On the day for the payment of the money and the delivery of the deed, a conveyance was tendered to the plaintiff, in all respects conforming to the contract, except that the premises were made subject always to the rights relative to a drain or sewer in and through said land granted by deeds to the city of Newport. Discovering this reservation of rights in the city of Newport, the plaintiff refused to receive the deed and to pay the unpaid purchase price, claiming that the deed was not in accordance with the contract. The rights so referred to in the deed are shown by the deed itself to the city of Newport to be such as give the authorities of the city of Newport at all times the right to maintain the ditch as a public sewer and to enter upon the whole premises at any time to make repairs, etc.

Negotiations were had between the parties for sometime, designed for their object to get the city of Newport to release or surrender its rights in respect to this sewer, but they came to naught, save only that the city, by its proper authorities, consented to use only a ■ portion of the land over and along each side of the sewer for the purposes of entering and making repairs.

The trial court granted to the plaintiff specific performance with a deduction of $985.62, in which sum it was found the premises were less valuable by reason of the servitude previously granted to the city of Newport. It is urged by the learned counsel for the appellants that the easement to" the 'city of Newport is not one of those incumbrances or defects of title which will enable a court of equity to grant a specific performance of a contract with 'compensation for the servitude. We have, however, a very careful statement of the rule as laid down by Pomeroy in his work on Specific Performance of Contracts, §440, as follows: “The existence of easements upon land in favor of third persons, or of other similar rights which conflict with those of the owner, and which would prevent a vendor from forcing an acceptance upon an unwilling vendee, wifi entitle the purchaser at his election to insist upon a conveyance of the land subject to these rights, with such compensation or abatement from the price as shall be proportionate to the diminution in the value of the subject matter.”

See also the case of Riggs v. Pursell (66 N. Y., 193), where the court assumed that a purchaser would not be compelled to take a title affected by an easement which was detrimental to the premises.

Neither Pomeroy nor counsel cite us to any case where the servitude for which compensation has been sought existed as a right of a municipal corporation for the purpose of drainage, though there are many cases alluded to bearing generally upon the question of making compensation, such, for instance, as where the land is found to be subject to the right of a third person to dig minerals or ores, or subject to an outstanding right of dower in a widow. It is also urged by counsel that the doctrine can be applied only to cases where compensation may be made directly and by computation. It is true most of the cases in the books are of that description, a familiar instance of which is where the vendor in a land contract is unable by his deed to convey the number of acres which he has agreed to convey by the contract and which the vendee supposed he would get by the deed. But it does not seem to me that the fact that the subject matter of inquiry is difficult renders the court unable to do justice between the parties.

It is further claimed that in this case the court has attempted to make a contract between the parties which neither of them contemplated at the time they signed the written agreement. This could be urged with equal force in any case, however simple it might be, where it was found that one of the contracting parties was not able to perform fully and the other desired performance pro tanto. The judgment of the -court in such cases, where the parties do not make a new agreement among themselves is to enforce the agreement as nearly as it may be. The defendants ought not to be permitted to complain of the fact that they have deliberately, by a written agreement, undertaken to convey more than they had, and should therefore be relieved entirely of the obligation which they had assumed, and the plaintiff lose thereby his right apd privilege of making a good bargain. But a sufficient answer may be found in the language of Lord Eldon, in the case of Mortlock v. Butler (10 Ves., 315), where it is said: “If a man having partial interests in an estate chooses to enter into a contract representing it and agreeing to sell it as his own, it is not competent for him afterwards to say, though he has valuable interests, that he has not the entirety, and that therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction,' the person contracting under those circumstances is bound by the assertion in ,his contract; and if the vendee chooses to take as much as he can have, he has a right to that and to an abatement; and the court will not hear the objections by the vendor that the purchaser cannot have the whole.”

Nor is the amount of the compensation made to-the plaintiff an arbitrary sum. The trial court accepted apparently the lowest estimate of damages made by this witness. The subject-matter of this estimate was not speculative in any sense. The property consists of certain well defined lots of land, as shown in the map printed in the case, with a blind sewer running within about forty feet of one of the lines, upon which the authorities of the city of Newport have the right to enter at any time to enlarge, cleanse and repair for public purposes. Any person, therefore, acquainted with the land and knowing well what uses it might be put to except for the sewer in that location, could easily estimate the diminished value o£ the property for airy use to which it might be put by reason of the servitude. The estimates of the several witnesses- of such damages are as nearly alike as we are accustomed to see in the trial of law cases, where damages are to be estimated in other ways than by a mathematical computation. In arriving at the result, each witness necessarily took into the account any possible benefit, if benefit there were, to the land, by having its drainage thus provided for at public expense. Hence it is that the argument of copnsel does not appear to be sound in urging that there could be no compensation, because there were certain benefits derived to the land by the existence of the drain.

No compensation could be awarded the plaintiff together with a specific performance if he had knowledge or notice of the existence of the servitude before -making the contract. Hence it is with some embarrassment that we notice that the trial court excluded the evidence of the witness Ford, which was apparently offered to show that the plaintiff knew of the existence of the sewer at that time. This evidence should have been admitted, but we are not prepared to say it was such an error to exclude it as to warrant us in reversing the judgment. The knowledge of the plaintiff, however, or notice to him which was thus sought to be given, was only of the physical existence of a drain or sewer upon the premises. No witness was adduced who testified or who could testify that the plaintiff had any notice or knowledge of the existence of the easement or servitude by the deed of the defendants which had been theretofore executed. On the contrary, it affirmatively and conclusively appears that he had no such knowledge or notice. What then could have been the full significance that might be given to the excluded testimony ? Was it anything more than the knowledge that a person would get of any land by examination of it? There was nothing in the case and there was nothing in the offer which would go to show that an inspection of the sewer or notice of its existence would put the plaintiff upon such inquiry as would lead him to a discovery of the easement or servitude. Indeed, it is not the existence of the drain or sewer that is the subject-matter for which compensation has been made. The trial court has decided that the property was of diminished value because there existed an outstanding perpetual right in a municipal corporation to enter upon the lands at any time for the public purpose of enlarging, cleansing or repairing the sewer. Nor has the court found as a fact as is claimed, that the plaintiff had no knowledge of the existence of the sewer. What the court found was that the plaintiff had no knowledge or notice of the existence of the sewer and of the easement of the city of Newport. That fact is uncontroverted. There is nothing in the case to show that the judgment of the special term, permitting a specific performance with compensation, was vested upon the assumed fact that the plaintiff did not know of the existence of the sewer. It is, however, based upon the fact that he had no knowledge that any third person had a right in and to the premises which he had bargained for. Under the facts established in this case, though the plaintiff knew of the existence qf this sewer, that knowledge would not put him upon inquiry as to who had a right to use it or control it, for there was nothing in the premises so far as could be seen, that was different from the ordinary drainage of land in that locality.

The only remaining question is whether the plaintiff has used due diligence in prosecuting his rights under the contract. The facts constituting the alleged loches are properly set up in the answer of the defendant Blagden. The plaintiff was made aware of the existence of the easement on July 28, 1881, when the defendants refused to make compensation or award him damages for the easement which he had then discovered for the first time. His right of action accrued at that time. The nature of the case is such as the courts could properly require diligence in its prosecution. There are, however, facts which we think are sufficient to justify the slight delay that was made in this case. A short time elapsed after the time appointed for the consummation of the agreement in endeavoring to get the city authorities of Newport to relinquish their rights to such an extent as that the plaintiff would accept the deed of the defendant. Furthermore, an action was brought in the superior court of the city of New York for the same purpose, but which was abandoned in April, 1882, for the reason that the plaintiff had not succeeded in getting the proper parties before the court. There was a continual assertion by the plaintiff of his right to a deed, with compensation up to this time, and such claim was repeated by bringing this action in January, 1883. The delay was not caused by any fault of the plaintiff, because, as it is found, he had instructed his counsel to bring the action shortly after the failure of the defendants to deliver him a proper deed, and again gave» such instructions after the discontinuance of the first action. A further circumstance for excusing any apparent loches on the part of the plaintiff is the fact that his son, who was the attorney of record, was for a considerable time in New Mexico, and that his absence was the cause of some delay. There was at no time a relinquishment by the plaintiff of any claim that he made against the defendant for a deed, with proper compensation; on the contrary, he asserted it at all times, and gave the defendant Blagden, who subsequently purchased the land of the other defendants, notice of his claim before that purchase was made.

The judgment should-be affirmed, with costs.

Judgment reversed, new trial ordered, with costs to abide event.