author: Brown, J.

text:
    John R. Lent and Henry M. Taylor, Special Guardian, Resp’ts, v. The New York & Massachusetts R. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 26, 1892.)

      1. Eminent domain—Action fob awabd—Pleading—Plaintiff must al- - LEGE NON-PAYMENT OF AWABD.
    A complaint in an action by a plaintiff whose land has been condemned for railroad purposes setting up an award of damages, and that the report of the commissioners was confirmed on motion of the defendant, but which does not allege that defendant had failed or omitted to pay the award and which contains no allegation of indebtedness, is demurrable as stating no cause of action.
    8. Same.
    An allegation in a complaint that an order has been “ duly entered,” is equivalent to averring that it has been recorded.
    (Follett, Oh. J., and Vann, J., dissent.)
    Appeal from a judgment of the general term of the second department, affirming a judgment of the' special term entered upon an order overruling a demurrer to a complaint.
    The complaint alleges the incorporation of the defendant; the presentation to the supreme court, pursuant to the statute of this state, of a petition by said railroad company asking for the appointment of commissioners to ascertain and appraise the compensation to be made to plaintiff JohnR. Lent and others, for certain real estate which said, corporation desired to take for railroad purposes; the appointment of commissioners and of Henry M. Taylor as special guardian for said Lent, in said proceedings, and a report by said commissioners that the amount which ought to be paid to said Lent for said real estate was the sum of $14,270, and to said special guardian for costs and expenses the sum.of $300; that said report was upon motion of the railroad company confirmed and an order entered directing said company to pay said sums to said Henry M. Taylor, special guardian of said Lent; that subsequently said defendant appealed to the general term from said order, and that the said report and order had been upon such appeal duly affirmed. These allegations were followed by a prayer for judgment for the amount of the award and costs.
    The defendant demurred to the complaint upon the grounds:
    1. That the plaintiff had not legal capacity to sue.
    2. That there was a non-joinder of parties plaintiff.
    3. That there was a defect of parties plaintiff.
    4. That causes of action were improperly united.
    5. That the complaint did not state facts sufficient to constitute .a cause of action.

      Robert F. Wilkinson, for app’lt; Henry M. Taylor, for resp’ts.

       Reversing 28 St. Rep., 82.

   Brown, J.

It is provided by section seventeen of the general railroad act in reference to the taking of land for railroad purposes, that upon the report of the commissioners of appraisal being made the railroad company shall give notice to the parties to be affected by the proceeding for the confirmation of such report, and the court shall thereupon confirm the same and make an order containing a recital of the substance of the proceedings, a description of the real estate, and a direction to whom the money shall be paid, or in what bank and in what manner it shall be deposited.

Prior to 1876 it was provided in § 18 that a certified copy of the order confirming the report should be recorded at full length in the clerk’s office of the county in which the land described in the order was situated, and thereupon and upon payment or deposit of the sum to be paid as compensation for the land and for costs, etc., the title should vest in the company.

Under the section quoted this court decided in the Matter of the Rhinebeck & Connecticut R. R. Co., 67 N. Y., 242, that the confirmation of the report created reciprocal rights between the company and the land owner and put it beyond the power of the company thereafter to abandon the proceedings, and that the order of confirmation operated as a judgment binding both parties. This result followed the conclusion drawn from the construction given the sections of the statute quoted, that from the date of the order confirming the report the duty of the company to pay the award was absolute, and that it was not necessary in order to conclude the corporation that the title to the land should have become vested in it.

By chap. 198, Laws of 1876, § 18 was amended by adding thereto the following: If the company shall neglect to have such order recorded and make the payment or deposit as herein provided for the period of ten days after the date of such order, any party to such proceedings and interested therein may, at his election, cause a certified copy of the order to be recorded as aforesaid, and thereupon the moneys therein directed to be paid with interest thereon from the date of said order shall be a debt against the company, and the same shall be a lien on such real estate, and may be enforced and collected by action at law or in equity in the supreme court, with costs.

“Except, nevertheless, the company may abandon such proceedings by filing within thirty days after notice in writing of such recorded order, in the office of such clerk, a notice of its determination to do so, and paying the reasonable costs and expenses of such party to be ascertained and adjusted on motion by the court making such order. But, in case of such abandonment, the company shall not renew proceedings to acquire title to such lands without a tender or deposit in court of the amount of said award and the interest thereon.” This amendment effected a material change in the law in respect to the question raised upon, this appeal.

The company was no longer concluded by the order confirming the report. Their duty to pay did not then arise nor did their right to discontinue the proceedings then cease. The duty to pay, as well as the landowner’s right to sue for the award, was made to depend upon the recording of the order.

“Thereupon,” is the language of the act; that is. upon the recording of the order “ the moneys therein directed to be paid * * * shall be a debt against the company and the same shall be a lien upon such real estate and may be collected by action at law or in equity in the supreme court.” And the right to discontinue the proceedings did not end until thirty days after recording of the order, or thirty days after notice in writing that it had been recorded by some other party to the proceedings.

Under the section as amended, title to the land vested in the corporation upon the recording of the order and payment or deposit of the award. But no debt was created against the corporation until the order was recorded; and if the company neglected to have that act performed, any other party to the proceedings, could cause it to be done and thereby establish the company’s liability to pay the award.

It follows that no cause of action existed against the corporation in favor of the landowner for the amount of the award until the original, or a certified copy of the order, was recorded, and hence an allegation of that fact was essential in the complaint.

The complaint, while it did not expressly allege that the order had been recorded, did state that it had been “ entered,” and we are of the opinion that this term was used by the pleader as synonymous with the word recorded. This is manifest by the last line of the paragraph, “ to which order, or its record, plaintiffs beg leave to refer.”

The words “ entered ” and “ entry ” are frequently used as synonymous with “recorded” in the law books. Code Civ. Pro., § 1286. All through the statutes, Code and rules, the word “filing” describes the endorsement on a paper of the date when left in a public office, not for record, but for safe keeping. The word “entry” or “entered” describes the duty of a public officer when something more is required than filing. When we speak of entering a satisfaction of judgment, we mean that the “ satisfaction piece ” or execution is filed,' and the appropriate words written in the docket indicating that it has been paid. If one should plead that a satisfaction of judgment had been duly entered, it would imply that the clerk had done his whole duty. The law requires orders made on notice and in special proceedings to be entered; that is, recorded in an order book. Judgments are to be entered, recorded in a judgment book. If a pleader should aver that a judgment or order had been duly entered, I think it would be held on demurrer to be equivalent to averring that the judgment or order had been recorded; that the clerk had done his whole duty.

It remains to consider the question whether, giving to the word u entered” the interpretation that we have, the complaint states a «cause of action. The effect of the recording of the order was to create a debt against the defendant, and in that respect its liabiltiy is analogous to a liability arising upon the maturity of a contract for the payment of money, and the question is presented whether an allegation of non-payment is essential and material to the cause of action.

The Code, § 481, provides that a complaint must contain a plain and concise statement of the facts constituting the cause of action, and the general rule deduced therefrom is that whatever facts are essential to be proven to entitle the plaintiff to recover upon the trial must be alleged in the complaint.

It does not admit of controversy that upon an ordinary contract for the payment of money non-payment is a fact which constitutes the breach of the contract and is the essence of the cause of action, and being such within the rule of the Code it should be alleged in the complaint. It is said, however, that payment is always an affirmative defense, which must be pleaded to be available, and hence non-payment need not be alleged, as it is not a fact put in issue by a general denial. Salisbury v. Stinson, 10 Hun, 242.

The rule that payment is an affirmative defense is not one embodied in the Code, but had its origin under the common law practice in the plea of non assumpsit, and the reason for it was that in assumpsit the allegation in the declaration and the traverse in the plea were in the past tense, and under the rule which excluded all proof not strictly within the issue no-evidence was admissible except such as had a tendency to show that the defendant never had made the promise. It was never applied in the action of debt, the allegation in that form of action being in the present tense, and under the plea of nil debet any fact tending to show that there was no indebtedness on the part of the defendant was admissible. '

The history of the rule is set forth in Judge Selden’s opinion in McKyring v. Bull, 16 N.Y., 297, and need not be referred to here.

Following the rule thus established under the former practice, the courts have uniformly held since the adoption of the Code that payment must be pleaded and cannot be proven under the general issue.

While the effect of these decisions is to modify somewhat the rule embodied in § 500 of the Code, their tendency is to simplify pleading, as under their application the plaintiff is informed of the precise defense intended to be made, and thus unnecessary-preparation is obviated and surprise on the trial avoided.

But there is no need to further extend the rule and hold that, because payment as a defense must be pleaded, the breach of the agreement need not be alleged in the complaint. That would have the contrary effect and lead to embarrassments that are avoided when the plain provisions of the Code are followed.

No authority exists, so far as I am able to find, except the case of Salisbury v. Stinson, holding that a breach of the contract need not be pleaded, but all text writers and reported cases hold to the-contrary. 1 Chitty Pl., 325-359; Comyn’s Digest Title Pleader, C., 44; 2 Wait’s Law & Practice, 318; 1 Wait’s Actions & Defenses,. 394-, 395, and cases cited; Witherhead v. Allen, 4 Abb. Ct. App. Dec., 634; Tracy v. Tracy, 35 St. Rep., 167; Van Giesen v. Van Giesen, 10 N. Y., 316; Krower v. Reynolds, 99 id., 245.

Witherhead v. Allen arose upon a demurrer to a complaint. The-opinion states the rule as follows: “When the action is founded upon the contract obligation or duty of the defendant the very gist and essence of the cause of action is the breach thereof by the defendant, and'unless a breach is alleged no cause of action is-shown.”

In Van Giesen v. Van Giesen, 10 N. Y., 316, it is said: “The: material allegations of the complaint in this case are the making-by the defendants of the promissory note, the transfer of it to the plaintiff, and the non-payment by the defendants. Bach of them is material, for without the concurrence of all of them the complaint would not show a cause of action.”

To the same effect is Keteltas v. Myers, 19 N.Y., 231. See also Code, §§ 534 and 1213, subd., 2.

In Krower v. Reynolds, it was held in an action on a covenant, to pay a mortgage that it was necessary to allege that the mortgage had not been paid, or that the defendant had failed to perform his covenant, and without such allegation the complaint wasdemurrable.

And in numerous cases which need not be cited, but of which Allen v. Patterson, 7 N. Y., 476, is a type, the rulé is recognized, by implication, but the complaints were held good because of an allegation of indebtedness by the defendant to the plaintiff.

This rule is further recognized in § 534 of the Code, which provides a simple form of pleading on an instrument for the payment, of money only, but requires the plaintiff to state the sum which he claims to be due to him thereon. Again, the complaint, when verified and there is no answer, stands as proof of the plaintiff’s, claim and the clerk is authorized to enter judgment thereon.

But if the plaintiff is not required to allege a breach of the-contract or state the amount due, as his verification would cover-only the facts alleged, the clerk, under §§ 420, 1212 and 1213 of the Code would be authorized to enter judgment for the whole amount called for by the contract and this without proof of the amount due thereon. This would be contrary to the whole spirit of the Code and would require the clerk to presume a fact neither-alleged or proved, viz.: that no payments had been made.

These views show how essential to the practice it is that the plaintiff should allege the breach of the contract of which he complains. That breach is always a fact and is of the very essence of the cause of action. The complaint should show such facts which, if verified and not denied, prove to the clerk that the plaintiff is entitled to judgment for the amount he demands.

It cannot be said that where the breach consists in nonpayment of an agreed sum, that it is not an issuable fact because payment cannot be proven under a general denial. The most that can be said is that that form of denial does not put that fact in issue, and to that extent the rule that payment must be pleaded must be deemed to modify the rule of pleading under the Code in reference to a general denial.

But no reason is apparent how it can justify the omission from the complaint of a fact material to the plaintiff’s cause of action and essential to be proved to entitle the plaintiff to a judgment, Such facts under the Code must be pleaded. Ho presumption can be indulged in that a defendant has failed in his duty or omitted to perform his contract obligation.

There was no allegation in the complaint in this action that the defendant had failed or omitted to pay the award and no allegation of indebtedness, and without such.no cause of action was stated.

On this ground we are of the opinion the demurrer was well taken.

Other objections to the complaint were discussed upon the argument, but none of them are considered well taken.

The judgment must be reversed and the demurrer sustained, with costs, with leave to the plaintiff to amend the complaint within thirty days on payment of costs.

All concur, except Follett, Ch. J., and Vann, J., dissenting, and Potter, J., not voting.


source: Caselaw Access Project

license: Public Domain

text:
    Mary L. Morgan, Resp’t, v. The New York & Massachusetts R. Co., App'lt.

      (Court of Appeals, Second Division,

      Filed January 26, 1892.)

    1. Eminent domain—Commissioners’ report—Records.
    _ It is sufficient if the order of confirmation of the report of the commissioners of appraisal he recorded in full in the office of the county clerk of the county in which the land is situated; it is not necessary that it be recorded in the boon of conveyances.
    2. Same.
    Recording the original order which remained on file in the same office is a substantial compliance with the statute.
    Appeal from a judgment of the general term of the second judicial department, affirming a judgment entered upon a verdict directed at the circuit.

      Robert F. Wilkinson, for app’lt; Horace D. Hufcut, for resp’t

       Affirming 28 St. Rep., 86.

   Brown, J.

The question presented upon this appeal is whether evidence showed conclusively that the provisions of § 18 of the general railroad act had been complied with so as to establish a debt against the defendant for the amount of an award made in a proceeding instituted by the defendant to acquire lands of the plaintiff for railroad purposes.

We decided in the case of Lent against the same defendant at this term of the court, ante, 592, that it was essential to constitute a cause of action against a railroad corporation for the amount of an award for land taken for railroad purposes that it should be alleged in the complaint that the final order confirming the commissioners’ report, or a certified copy thereof, had been recorded at full length in the clerk’s office of the county where the land was situated, and until that act was performed there was no debt against the company.

The complaint in this action contained such an allegation, which the answer denied, and the issue thus raised was the only one considered at the trial.

The question is no longer one of general importance, aS the amendment of the Code in 1890 has established a new proceeding for the taking of lands under the power of eminent domain, and the laws as they existed prior to that time have been repealed. Laws of 1890, chap. 95.

We are of the opinion that there was in this case a substantial compliance with the statute. The defendant was the successor of the Poughkeepsie & Eastern B. B. Company, and it appeared that the real estate was situated in Dutchess county and the proceeding was instituted and brought before the court in that county.

The original order confirming the report, signed by the justice who presided at the court which granted it, was by the counsel for the railroad company delivered to the county clerk, and the expense of entering and recording it charged to him. It was copied at full length into a book kept by the clerk in his office, endorsed, “ Poughkeepsie & Eastern B. B. Co. - orders,” and at the end of the order, made by the clerk who copied it into the book, were the words : “Entered and recorded August 18, 1888.”

The appellant contends that this was not such a recording as required by the statute, for two reasons:

First. That the order should have been recorded in the book of deeds.

Second. That the recording of the original instead of a certified copy did not comply with the law.

Pinal orders in proceedings taken to acquire title to land under the power of eminent domain are statutory conveyances of real estate, and the first objection might have some foundation in the provision of the general recording act if the rights of a subsequent purchaser in good faith of the same real estate, or a portion thereof, were involved.

But in this case the final order was delivered to the court clerk by the defendant, and it caused it to be recorded at full length in the book referred to, and it cannot now be permitted to deny that such act was not a substantial compliance with the statute and created a debt from it to the land owner.

The second objection is without merit. Becording the original order which remained on file in the same office was a substantial compliance with the statute. The defendant caused that act to be done and cannot now be allowed to deny its efficacy. The order confirming the report was made August 13, 1888, and affirmed by order of the general term February 14, 1889. This action was commenced in March and tried in July, 1889.

There is no suggestion in the answer and no evidence on the-trial that the defendant intended or desired to abandon the proceeding and its rights have not been prejudiced or abridged.

The defense was without merit, and the judgment should be affirmed.

All concur, except Potter, J., not voting.


author: Parker, J.

text:
    James W. Chase, Resp’t, v. Sarah C. McLean et al., App’lts.

      (Court of Appeals, Second Division,

      Filed January 26, 1892.)

    1. Vessels—Money borrowed by ship’s husband—When owner liable for.
    A part owner of a vessel is not legally responsible for the payment of money borrowed by a ship’s husband to pay a prior indebtedness, although contracted for the benefit of the vessel.

      2. Same.
    The implied agency of the ship’s husband has only to do with the present or future use of the ship. It is based on present and pressing necessity, occasioned by the damages of navigation with a vessel out of repair, improperly rigged and inadequately provisioned.
    Appeal from a judgment of the general term of the supreme court, second judicial department, affirming a judgment of the supreme court, entered on a verdict of a jury.
    This action was brought by plaintiff, the former master of the bark “ Commerce,” to recover $449.
    The complaint alleged that both defendants owned the ship, the defendant David being also ship’s husband; that in such capacity, David, with the knowledge and consent, and by the authority of the defendant Sarah, contracted bills for, and on account; of said bark; borrowed moneys for the payment of bills, and disbursed moneys in satisfaction thereof; that on the 24th day of December, 1887, the plaintiff lent to the defendants, at their request through said David W. McLean as agent and ship’s husband aforesaid, the sum of $449.95, to be used and applied in paying bills and expenses of .the said bark “ Commerce.”
    The answer of the defendant Sarah was a general denial. But the answer of the defendant David alleged that he was both owner and ship’s husband and denied that the defendant Sarah was an owner of the vessel, or of any interest therein. He admitted the receipt from the plaintiff of the sum of money alleged in the complaint, but denied that it was conditioned that it should be repaid as stated in the complaint, and alleged that it was only to be repaid in the event that there should be found such a sum due to the plaintiff after the examination of his accounts.
    It appeared on the trial that the plaintiff had been the master of the bark “ Commerce ” from August, 1883, until December, 1887. In the latter month, he collected the sum of $800 belonging to the vessel and, exercising a captain’s prerogative, applied it in payment of wages then due. The defendant David, whom the evidence tended to show was the ship’s husband, stated to plaintiff that he wanted some of the money to pay the ship’s disbursements. The plaintiff let him have $449, with the understanding that his wife, the defendant Sarah, or her father, Peter S. Parker, was to sign two notes which he took for the loan.
    The defendant David brought to plaintiff the notes bearing the . endorsement, “ J. S. Parker.” and declared that it was the signature of Peter S. Parker. The plaintiff accepted it as such. It turned out that J. S. Parker was a man without means.
    This action was brought on the notes, but against the defendants as alleged owners of the bark “Commerce,” on the ground that the moneys were loaned for the use of the bark, and the notes were produced on the trial and an offer of their surrender for cancellation made. There was some controvery as to whether the loan was made as claimed by the plaintiff. The defendant Sarah C. McLean also denied being a ¡Dart owner of the bark.
    These two questions of fact were submitted to the jury, the court having denied the motion to dismiss the complaint, “on the stipulation that in case the jury find a verdict for the plaintiff I may reserve the case for further consideration of the law; and in case I come to the conclusion that defendant is right, and plaintiff wrong upon it, then I may render judgment for the defandant, notwithstanding a verdict.”
    In his instruction to the jury the court directed that if they found the loan was made, and that Sarah McLean was the owner of 127-128ths of the vessel, then to render a general verdict against both defendants. The jury having rendered a verdict in favor of the plaintiff, and against both defendants, their counsel moved for judgment notwithstanding a verdict under the stipulation.
    The court in denying the motion said : “ The question of law in this case is on the border line. But inasmuch as the jury has found for the plaintiff, the defendant ought to bear the onus of appeal.”
    Other facts appear in/the opinion.

      William H. Arnoux, for app’lts ; Thomas J. Bitch, Jr., for resp’t.

       Reversing 30 St. Rep., 159.

   Parker, J.

The money was not borrowed for the purpose of providing a proper outfit for the vessel, to make repairs, nor to do other necessary things for an immediate voyage; she was out of commission and the plaintiff who had been her captain for three years had terminated that relation. It was used in paying a debt contracted about three years prior with David W. McLean's sons, for chandlery goods, and ship supplies, furnished to the bark “ Commerce.”

The question presented is whether a part owner of a vessel is legally responsible for the payment of money borrowed by a ship’s husband to pay a prior indebtedness, although contracted for the benefit of the vessel ? It is raised by exceptions taken to the refusal to dismiss the complaint, and to the direction of the judge to the jury that Mrs. McLean was liable if a part owner.

The powers of a ship’s husband are determined mainly by usage, and are defined in McCready v. Thorn, 51 N. Y., 457-458, as follows: “ To provide for the complete seaworthiness of the ship; to see that she had on board all necessary and proper papers; to make contracts for freight, to collect the freight, and to enter into proper charter parties; to direct the repairs, appoint the officers and mariners; to see that the vessel is furnished with provisions and stores, and generally to conduct all the affairs and arrangements for the due employment of the ship in commerce and navigation, and for all such purposes he is the agent of the owners and can bind them by his contracts.” See, also, 1 Bell’s Com.'(5th ed.), 504; 1 Parsons on Shipping & Adm., 109 ; Story on Part., § 418; 1 Parsons Mar. Law, 98.

It will be observed that these duties have reference to the future employment of the ship and her preparation for it.

Mr. Bell, in treating of the limitations of the power of a ship's husband, says:

“ (1) That without special powers he cannot borrow money geiier ally for the use of the ship, though he may settle the accounts of the creditors for furnishings or grant bills for them, which will form debts against the concern whether he has funds in his hands or not with which he might have paid them.
“(2) That although he may, in the general case, levy the freight, which is by the bill of lading payable on the delivery of the goods, it would seerh that he will not have power to take bills for the freight and give up the possession and lien over the cargo unless it has. been so settled by charter party, or unless he has special authority to give such indulgence.
“(3) That, under general authority as ship’s husband, he has no power to insure or to bind the owners for premiums; this requiring a special authority.
(4) That, as the power of the master to enter into contracts of affreightment is superseded in the port of the owners, so it is by the presence of the ship’s husband, or the knowledge of the contracting parties that a ship’s husband has been appointed.” 1 Bell’s Comm., 504, 505, 5th ed.

The courts have modified in some respects the limitations formerly existing, and necessarily correspondingly enlarged the powers of the ship’s husband.

In this state it has been held that a master has power to contract for repairs, even in a home port, if they were absolutely necessary. Provost v. Patchin, 9 N. Y., 235.

While formerly he was not permitted to borrow money, the rule was first so modified as to authorize Iho "borrowing of money in foreign ports in case of necessity, and afterwards so as to include home ports, if the owner could not be communicated with, and the money was required immediately and for a specific pose. Rocher v. Busher, 1 Starkie, 23; Palmer v. Gooch, 2 id., 377-548; Johns v. Simons, 42 Eug. C. L., 743; Edwards v. Havill, 78 id., 106; Stearns v. Noe, 12 Gray, 482.

And in McOready's case, supra, relied on by the court below in affirming the judgment, the rule was further extended, so as to permit the borrowing of money to pay for such supplies as the ship's husband would have authority to purchase on credit. In that case the ship’s husband, as such, had authority to purchase the articles, to pay for which he borrowed the necessary amount of money. And to the inquiry upon what principle is the one credit within, and the other without, the implied authority of the agent, the learned judge responds none, except that suggested by the authorities, that the agent may dissipate and misappropriate the money. And this objection he guards against, by so qualifying the rule laid down by the court permitting the ship’s husband to borrow money to pay for articles whenever the circumstances would permit him to purchase such articles on the credit of the owners, as to burden the lender with proving as a condition of recovery that the money was not only borrowed for a proper purpose connected with the ship, or her navigation, but that it was actually applied to such purpose.

Our attention has not been called to any other case which goes quite so far in support of the authority of a ship’s husband to borrow money, and while we fully approve of the decision made, we do not regard it as applicable here.

The implied agency of the ship’s husband has only to do with the present or future use of the ship. It is based on present and pressing necessity, occasioned by the dangers of navigation with a vessel out of repair, improperly rigged and inadequately provisioned.

Now, this transaction, assuming as we must, in view of the finding of the jury, the plaintiff’s version of it, had not to do with the then necessities of the vessel, or its preparation for a voyage, for it was out of commission. If the ship’s master had asserted otherwise, within the rule laid down in McCready's case, the plaintiff would have been obliged to prove its application to such purpose.

But he did not claim that it was to be so applied and in fact it was used to pay an old debt, of several years’ standing. For such a purpose a ship’s master has no authority to borrow money at the charge of the owners.

On this appeal the respondent calls our attention to the evidence of Sarah 0. McLean, which he claims conferred on David W. McLean special powers in addition to the implied authority belonging to him as ship’s master.

Had the pleadings presented such an issue, the testimony to which he refers, considered in connection with the other evidence in the case, might have presented a question in that regard for the jury. But no such claim was made in the complaint; the cause was not tried on that theory; nor was any such question presented to the jury, or a request to that effect made.

It cannot, therefore, be made available to the plaintiff here.

The judgment should be reversed.

Judgment reversed and new trial granted, oosts to abide the event

All concur, except Haight, J., absent.


text:
    Margaret Dexter, Resp’t, v. Randolph Beard, App’lt.

      (Court of Appeals, Second Division,

      Filed January 26, 1892.)

    1. ^Easement—Right of way—Encroachment.
    C. owned the lands and buildings on either side of a sixteen-foot lane as well as the lane itself. On the south side of the lane a covered hatchway extended five feet from the building. In May,-1846, 0. conveyed to B. the premises on the north side of the lane, with a right of way * * * between the south line “ and a line drawn parallel with the north side of the store,” situated on the south side of the alley, “ to be used in common with the grantor ; said lane not to be encumbered, or built upon by either party.” The premises deeded to B. passed to plaintiff in 1882. In August, 1846, 0. conveyed to Van V. the premises sourli of the north line of the lane, except the right of way between the store and B.’s south line to be used by B. and Van V., whose title vested in defendant in 1882. Held, that the right was given to use the whole of the sixteen-feet of space between the Van V. store and the north side of the lane, and not merely a passage for teams, and that plaintiff could compel defendant by injunction to remove said hatchway as encroachingthereon.
    2. Same.
    Said covenant ran with the land and was not a mere personal covenant between the original grantor and grantee. The use of the words '‘ either party ” did not limit the duration of the covenant to such a period as the grantor and grantee should severally remain the owners of the dominant and servent estates, but included all persons whom the party undertook to represent and bind with himself, viz : the parly of the first (or second) part, his heirs, executors, administrators, or assigns, etc.
    Appeal from a judgment of the general term of the supreme court, fourth judicial department, entered on an order affirming a judgment, of the special term directing the defendant to remove so much of a building as encroached upon a right of way, to which the plaintiff made claim.

      A. P. Smith, for app’lt; J. E. Eggleston, for resp’t

       Affirming 25 St. Rep., 664.

   Parker, J.

By the judgment in this suit it was decreed that the defendant remove so much of a building erected by him as stands upon a strip of land of the width of four and one-tenths feet, and in length ninety feet, on the ground that it is an obstruction to a right of way granted to the plaintiff and her predecessors in title by one Parker Crosby, who was the common source of title of both plaintiff and defendant.

Prior to May 5, 1846, Parker Crosby was the owner not only of the space between certain buildings, a portion of which is in controversy here, and which the plaintiff claims to be entitled to use in common with the defendant as a right of way, but also of the lands and buildings on either side of it

At that time the condition of the premises was as follows: A lane or drive-way sixteen feet in width extended east and west from Main street On the north side of the lane was a fence extending from the street back, about one hundred and fifty feet, while on the south was a store occupied by one Van Valen which ran from the street- back about forty feet, in the rear of which was an open space where teams were accustomed to be driven for the purpose of loading and unloading butter and other produce temporarily stored in the back portion of the store. On the north side of the Yan Yalen store, and about twenty feet from the street, there was a hatch-way extending out into the lane from the building about five feet, and of the width of four and one-half feet. It was walled up on three sides, and was used for the purpose of lowering heavy packages into the cellar. On the outer or northerly side the wall was built up to about the level of the ground, while the side walls slanted from such height to the top of the cellar wall, which was about twenty inches above the ground. A frame work was placed on the top of the three sides, and on this were doors opening each way. From this hatch-way, and projecting about two feet from the upper story of the store, there was a beam covered with a hood, to which a pulley and lope could be attached, and worked in lowering or raising heavy packages in the hatch-way. On the last mentioned date, Parker Crosby granted and conveyed to Wm. 0. Barnard, his heirs and assigns, the premises next adjoining the north side of the lane. The deed, immediately after the description of the premises, contained the following: “Also a right of way, the whole length of the south line of the above described lot, between the said south line and a line drawn parallel with the north side of the store now occupied by the said James Yan Yalen, or the grantor’s village lot, this day mortgaged to said grantee, to be used by the grantee in common with the grantor ; said lane not to be encumbered or built upon by either party.” * * * Through several mesne conveyances, that portion of the land which next adjoins the lane on the north of the right of way granted by said deed passed to the plaintiff, who obtained title February 1, 1882. About three months after the conveyance to Barnard, and on August 12, 1846, Crosby conveyed to Yan Yalen the premises south of the north line of the lane, which included the store on the south side thereof, the deed containing the following reservation: “Except the right of way between the store and Bamaid’s south line, to be'used mutually by Barnard and Yan Yalen, or their heirs or assigns respectively.” By subsequent conveyance the title to the premises thus granted became vested in the defendant January 23, 1882. Each of the intermediate deeds, as well as the one to the plaintiff, contained an exception in sulstantially the same language as in the one from Crosby to Yan Yalen. The deed to the defendant, in addition, contains the following: “The right of way, hereinbefore excepted, is the same right of way described in the deed from Parker Crosby and wife to William 0. Barnard, recorded in Cortland county clerk’s office, May 14, 1846.”

It does not appear that by any act of the plaintiff, or her predecessors in title, the easement granted to Barnard had been acquired by the defendant or his grantors; therefore, the plaintiff had, at the commencement of this suit, all of the rights which were granted in the deed from Crosby to Barnard.

The first question presented to the trial court for determination was, whether the right to use the whole of the space between the Van Valen store and the north side of the lane was granted; or so much thereof as was necessary for the use which gave rise to the grant ? Inasmuch as the south line was declared tobe “ A line drawn parallel with the north side of the store now occupied by James Van Valen,” the defendant contended that a line equidistant from the north side of the store at all points was only provided for, and therefore the description is as well satisfied by a line five or ten feet from the north side of the store as one next along it. That the line created was adjustable and uncertain as to location. It was further contended on the part of the defendant, that the existence of the covered hatchway in the lane at the time of the conveyance in 1846 tended to show that the intention of the parties was that only so much of the land as should be re-quired for the purpose of passage of teams should be granted, for they could hardly have intended that the hatchway should be -closed up, and the store deprived of the benefit of it, while there remained eleven and six-tenths feet between the north side of it and Barnard’s line for a drive-way. On the other hand it was insisted, that the line referred to was one along the north side of the store; that the use of the word “ parallel ” was not intended to make the line indefinite and uncertain as to location, but was made necessary because of the fact that the store only extended back forty feet from the street, and as plaintiff was granted a right of way ninety feet deep, the limits of the right of way was thus accurately described for a distance of fifty feet in the rear of the .-store as well as along it. A part of the sentence describing the -right of way declares, “ Said lane not to be encumbered, or built upon by either party,” and this it was insisted by the plaintiff was a strong indication of the intention of the parties to include the entire sixteen feet in the right of way, for the word “ lane ” did not suggest any limitation.certainly upon the width to be used, and not to be built upon, but was so comprehensive as to necessarily embrace the entire width of sixteen feet.

Evidence was also offered tending to show that this lane was largely used by teamsters, and that while the main travel was north of the hatch-way, that to some extent wagons actually passed over it. In view of the fact that the phraseology employed in describing the right of way was susceptible of more than one interpretation, thus presenting a question as to what was intended by the parties to the instrument, whether they sought to preserve for all time a right of way of the full width of sixteen feet, or merely a passage-way of sufficient width to meet the necessities of ■the parties, became a question for the court to determine. In the ■absence of language clearly expressing the object which the parties intended to accomplish, the court was permitted, and it was its duty to look at the surrounding circumstances existing when ¡the contract was entered into, the situation of the parties and the subject matter of the instrument. Heath v. Hewitt, 127 N. Y., 166; 38 St. Rep., 687.

In conformity with this rule evidence was introduced which, considered with the deed, permitted the court to find as a fact whether the parties intended that the description should embrace the entire space or only so much of it as should be necessary for the use of the parties for a single drive-way. Simmons v. Cloonan, 81 N. Y., 557-563. The intent being found, its employment as-an aid in the construction of the doubtful clause necessarity followed. Now the trial court found that from the 12th of August,. 1846, to the present the plaintiff and her grantors were the owners of the right of way mentioned in the complaint, and “ that said right of way is of the width of sixteen feet, and extends in length from Main street, or easterly, to a distance of more than ninety feet. The same being defined in the deeds.” This finding was required, we think, if the surrounding circumstances considered in connection with the writing induced, as it apparently did, the conclusion that the parties so intended. Therefore, in such further consideration as may be given, we shall deem it established that the grant described in the deed was of a right of way sixteen feet in width and about ninety feet deep.

The appellant contends that, if so, it is merely a description of the land in, through and over which the grantee was entitled to a right of way, and would not necessarily describe the limits of the way granted; therefore, this action cannot be maintained if the plaintiff has a sufficient right of way north of defendant’s building for the purposes had in view at the time of the grant

His position in that respect requires consideration, unless the plaintiff can take advantage of the covenant providing “said lane not to be encumbered, or built upon by either party.” This the appellant insists she cannot do ; because the covenant is not one running with the land, but a mere personal covenant between the original grantor and grantee.. In support of such contention is cited, Harsha v. Reid, 45 N. Y., 415; and Clark v. Devoe, 124 id., 120; 35 St. Rep., 206. In Ilarsha’s case the covenantees did not derive their title from the covenantor, for the covenant was an independent personal contract in no way connected with the title. The defendant in that case made a contract with a third party that no one should be allowed to erect a grist mill on a water privilege which was included in a subsequent sale to the plaintiff. By it was granted no interest in the premises to the covenantees, and it was therefore a purely personal contract, which could in no way burden the estate which came to the subsequent grantees.' It has therefore no bearing upon the question here presented. In Glark’s case, the owner of two adjoining lots in the deed conveying one of them covenanted for himself, his heirs, executors, administrators and assigns, that he would not erect on the lot remaining unsold any building which should be regarded as a nuisance.

It will be observed that the covenant had no relation to the land conveyed, but referred wholly to premises with reference to which neither party parted with, or received any title or interest-at the time with, and as a part of, making the covenant.

It was then a mere personal covenant, not binding on a subsequent grantee of such premises. The question presented therefore, was whether this personal covenant rendered the covenantor liable to respond for the acts of subsequent grantees, as well as his own: or only for his own. And the court held, that the grantor only intended to contract against his own acts, and the covenant should not be read distributively as if the grantor had covenanted that he would not erect a structure which should be regarded as a nuisance, nor would his executors, administrators or assigns.

Here the question presented is quite different. The grantor, in the deed conveying the fee of certain lands, also granted an easement in a strip of land adjoining, which was described. While .the fee still remained in the grantor, the easement of a right of way became annexed to the lands conveyed. And to more securely effectuate the intention of the parties that the right of way should not be interfered with, it was further agreed that the lane should not be encumbered, or built upon by either party.

notwithstanding the manifest intention of the parties, and the fact that the clause covenanting against encumbrances on the right of way formed a part of the sentence describing the - limits of the easement, the appellant contends that the easement was not intended to bind other than the immediate parties to the instrument, because in that phrase the words, “ either party,” were used instead of, “ either party, their heirs, executors, administrators or assigns.”

The construction thus contended for would, we think, not only do violence to the intention of the parties, but would be too narrow, in the light of the phraseology elsewhere employed in the deed. It recites that the parties of the first part, “ doth grant, bargain, sell, alien, remise, release and convey, unto the party of the second part, and to his heirs and assigns forever,” the premises ■described, and also the right of way, which concludes with the phrase, “ said lane not to be encumbered, or built upon by either party.”. And further declares that the parties of the first part, for themselves, their heirs, executors, administrators and assigns, do covenant and agree to and with the party of the second part, his heirs, and assigns, that they are seized of the estate ;• have a good right to convey; that the estate is free from encumbrances; and that the grantee shall have quiet enjoyment of every part, without molestation by the parties of the first part, their heirs or assigns.

Had the words “ either party ” been omitted, it would not have been contended but that the covenant bound all subsequent grantees. And their use cannot be held to have been intended to limit the duration of the covenant to such a period as the grantor and grantee should severally remain the owners of the dominant and servient estates, for they were undoubtedly employed, not in a restrictive sense, but broadly, so as to include by the word “ party ” all persons whom the party undertook to represent and bind with himself, viz.: the party of the first (or second) part, his heirs, executors, administrators or assigns.

It follows that so much of defendant’s building as encroached •upon the lane was in violation of the rights of the plaintiff, and she thereby became entitled to have the wrong righted. The court, in the exercise of a discretion guided by established equitable principles, reached a conclusion that the injunction prayed for in the complaint afforded the only adequate remedy, and no-sufficient reason has been pointed out to support a reversal of such determination by this court. We have examined the exceptions, to which our attention has been directed, but they do not call for' a reversal of the judgment, and need not be discussed.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Vann, J., not voting.


author: Peckham, J.

text:
    Katie T. Schermerhorn et al., Adm’rs, Resp’ts, v. James Cotting et al., App’lts.

      (Court of Appeals,

      Filed January 26, 1892.)

    1. Will—Trust—Alienation nor more than two lives.
    A testator devised his residuary estate to his brother in trust to pay over to his widow one-third of the net income, rents and profits, and one-third to a daughter and one-third to a son; in the event of the death of the son or daughter, the widow was to receive one-half of the income and the surviving son or daughter the other half; and in case of the death of both son and daughter intestate, and without issue, the widow was to receive the whole income. But in regard to the son’s (a minor’s) share, the trus'.ee was to accumulate the income and make only certain payments up to certain ages; if the son died during the widow’s lifetime, one-half of the income was to go to the widow during life, and the other half to the daughter; if the son be dead at the death of the widow, the whole income to go to the daughter. Held, that there was no undue suspension of the power of alienation. Although the trust would last through three lives, yet the will would be valid, because it would be limited upon the one selected, life, viz., that of the wife.
    2. Same.
    A testator may suspend the absolute power of alienation for a period of two selected lives in being at the creation of the estate, and during that time he may make such disposition of the annual income among as many persons as he sees fit.
    3. Same.
    Income and principal given in equal shares out of one fund kept in solido for mere convenience of investment may be severed and independent trusts created for the several beneficiaries, and thus the shares and interests will be several, even though the fund remain undivided.
    4. Same.
    Where a trust is created which by no possibility and in no contingency can endure longer than during the existence of two lives in being, it is of no consequence that if one contingency happen the estate is to be measured by two named lives, or if another contingency happen the estate is-still to be measured by two named lives, one of them different from the-one named in the other contingency.
    Appeal from judgment of the supreme court, general term,, first department, reversing judgment recovered at special term declaring certain trusts invalid.

      John L. Cadwalader, for app’lts; Charles Jones, John Al Roosevelt and Frederic J. Middlebrooh, for resp’ts.

       Reversing 35 St. Rep., 125.

   Peckham, J.

It has been held in the court below that this will in one contingency (the death of the son before the wife, and the latter's death before the daughter) illegally attempted to suspend the absolute power of alienation of the real estate and the absolute ownership of the personal property for a period beyond the existence of not more than two lives in being at the creation of the trust estate. It was stated that in such contingency the trust estate might be limited upon the lives of the son, the wife and the daughter of the testator, and thus three lives instead of two would be the limitation of the trust. If this be the true construction to be given to this will, it might be that the whole trust was illegal, and not simply the remainder over the limit allowed by law. It seems to me, however, that it is not only possible, but proper, to take another view, and to construe the provisions of the will somewhat differently, and at the same time keep clearly within and nearer to the intention of the testator as expressed in the will. The construction that I suggest would also keep the disposition of the property of the testator within the rules of law. Briefly, I think the following is the true construction of this will: After disposing of a part of his property, the testator created a trust estate in the residue for the life of his wife, and provided that, during that time, the income arising from such estate should be divided into three parts, and one part should be paid to his wife, one to his son and one to his daughter. The payment of the one-third to the son was on certain conditions, depending upon his age, not material upon this question.

Upon the death of the wife the whole estate was to be divided into two independent trusts, one in favor of the son and one in favor of the daughter.

I think this construction not only admissible, but clearly demanded upon the authority of the cases in this court herein referred to. Everitt v. Everitt, 29 N. Y., 40; Stevenson v. Lesley, 70 id., 512-516; Monarque v. Monarque, 80 id., 324; Vanderpoel v. Loew, 112 id., 167; 20 St. Rep., 654. The whole estate is bound in solido during the life of the wife, and upon her death the independent trusts provided for by the will come into play, and it follows that the life of the wife must be counted as one of .the lives upon which the independent trusts must be limited. In fact the will does this. And the other life upon which each independent trust could be limited must, of course, in each case have also been in existence at the time of the death of the testator. The will does so provide.

There are two contingencies which could happen in regard to the son. He ■ might survive his mother, the wife of the testator, or he might die before her. The will makes provision for each. We will first assume that the son survives the wife. The trust in favor of the son is upon this construction, and in such contingency, bounded by the life of the wife for one life, and by the son's life for another or by his arrival at the age of thirty years. In such event there is no undue suspension of the power of alienation.

There was, however, one other contingency that could occur which would affect this question, and that was the death of the son before the death of the wife. in mind that the trust estate is to last in any event during the life of ,tke wife, and that the income only is to be divided between the persons entitled to it during such time, if the son die before the wife the only change that occurs is that his share of the income is divided between the wife and the daughter, but in this contingency the trust estate is not limited or bounded by his life, nor does his death in the slightest degree affect it.

That estate continues in exactly the same condition it had been in, and must so continue during the life of the wife. The only difference made by the death of the son is that his share of the income is divided during the wife’s life between her and her daughter. It seems clear that in this contingency the duration of the trust estate is not, and never has been, measured by the life of the son, but by the lives of the wife and daughter.

A testator may suspend the absolute power of alienation for a period of two selected lives in being at the creation of the estate, and during that time he may make such disposition of the annual income among as many persons as he sees fit. Thus having created a trust term which must end within the period required by the statute, he may provide that the income shall be paid during that time to A. for life, remainder to B. for life, remainder to 0. for life, and so on for as many different lives as he chooses, providing the whole trust term must end with the death of the survivor of the two lives.

A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expiration of two lives in being at the creation of' the trust. If provision be made for such termination, the income of the estate may in the meantime be divided among any number of successive lives. Phelps' Executor v. Pond, 23 N. Y., 69. The statute is satisfied by the absolute necessity for the termination of the trust at the expiration of the two lives, and what may be done with the income in the meantime is, so far as this question is concerned, wholly immaterial. In this case the income from the trust estate may be paid according to the terms of the will during the lives of the son, the daughter and the wife, and to the wife as the survivor of both, provided they die before her intestate and without lawful issue, in which case she would be entitled to the whole income during her life. In this event it would happen that the trust would last during three lives, and yet it would be valid because it would be limited upon the one selected life, viz., that of the wife.

It is true the will does not in terms provide for the event of the death of the son subsequent to the wife, and before he arrives at the age of thirty, intestate and wdtho'ut issue. I think, however, the whole scheme of the instrument shows what was the intention in such event,, and that enough of such intention,is stated to permit of its being carried out, __ The testator provided specifically for the payment of the income of one-half of the estate to the son or to his guardian for his benefit, subsequent to the death of the wife and prior to the arrival of the son at the age of thirty years, and lie provided that, if the son died after the wife and before he arrived at that age, the share of the property intended for him. should go to such persons as the son should, by will, appoint, or, in default of appointment, to his children. This gift of the immediate income to the son or to his guardian for his benefit, indicates an intention to vest in the son the corpus from which such income is derived. Robert v. Corning, 89 N. Y., 225, 241. This intention is actually carried out in terms in the will incase the son arrives at the age of thirty years, or, if he die before that time, in case he makes a disposition by will, and in default of making such disposition then by the will, the share is to go to his issue. The one event, that of1 dying before thirty, intestate and without issue, not being specifically provided for, reference may be had to the language of the will generally and to the whole scope and tenor of that instrument, and from such reference it is plain that the corpus was so far vested in the son after the wife’s death, that upon his death before thirty, intestate and without issue, his interest in the one-half share of his father’s estate passed to and vested in his heirs and next of kin, freed from any trust whatever. The same result follows in the case of the daughter dying subsequent to the wife, intestate and without issue and before the son arrives at the age of thirty years. The share of the original estate which would come to the daughter vested in her after the death of the wife (her mother).

From that time the will specifically provided for the gift of the income from one-half of the original estate to the daughter, with a right in her to dispose of it by will, and in default of such disposition it was to go to her children. From all this it is clear that tbe corpus was so far vested in the daughter that in case of her dying without making any appointment by will, and without-any children, her share in the estate would pass to and vest in her heirs and next of kin, freed from any trust.

This construction prevents the trust in either part from enduring beyond the lives of the wife and daughter in one case, and of the wife and son in the other, and upon the death of the son or daughter at any time subsequent to the death of the wife, even if without issue and intestate, the property is freed from the trust and goes in the latter event to the heirs and next of kin.

I think the construction above outlined may fairly be held to-answer the objections set up by the counsel for the respondents to the validity of this trust for the son. If the son die before the wife, we have seen that the trust estate is limited by the lives of the wife and daughter, and is therefore valid; If the wife die and leave the son and daughter both surviving, the will has provided for two independent trusts, and each lasts only during the life of the son or daughter, respectively, or until the son arrives at the-age of thirty years.

The provisions of the third subdivision of the fourth clause in the will do not render it necessary to keep the whole, trust estate undivided after the death of the wife and until the son arrives at the age of twenty-five years. The payments which are therein directed to be made to the guardian of the son and to the son are not to be deducted from the amount of the whole income of the undivided trust estate. This result would be at war with the fundamental scheme of the will, which manifestly is predicated upon an equal division of the income from the testator’s property between his wife, son and daughter during his wife’s life, and upon her death between his son and daughter. The payments mentioned in this subdivision are, on the contrary, to be deducted from the son’s share of the property, and the balance of that share after the payments are made is to be accumulated. Hence it is unnecessary to keep the original trust estate together after the wife’s death for the purpose of deducting these sums from the total income'of such estate, and of then dividing the balance between the son and daughter. Even if after the death of the wife the separation of the estate were into undivided halves of income and subsequently of principal, to be paid to the son and daughter and their issue respectively, that fact would not necessarily prove there was no division into separate trusts. Income and principal given in equal shares out of one fund kept in solido for mere convenience of investment may be severed and independent trusts created for the several beneficiaries, and thus the shares and interests will be several, even though the fund remain undivided. This is the result of the case of. Vanderpoel v. Loew, supra. Nothing in Colton v. Fox, 67 N. Y., 348, or in Ward v. Ward, 105 id., 70; 6 St. Rep., 798, is opposed to this view. The facts are entirely different It is, however, not questioned by any that the trust for the accumulation of the surplus income in favor of the son after his arrival at the age of twenty-one years is void. Such surplus goes to the son as presumptively entitled to the next eventual estate. This answers the proposition as to the payment of income.

The further objection is made that there may be a trust for the life of the wife and for the life of the son until he reaches the age of twenty-five, and on the death of the wife the trust would continue during the lives of the daughter and the son until the latter arrived at the age of thirty years or the daughter died, and this would, as claimed, make a trust for three lives and hence illegal. The answer to this proposition, however, has already been given. Treating the estate as a trust for the life of the wife, and then severing the trust estate into two separate and independent trusts for the son and daughter, respectively, during their lives or until the son reaches the age of thirty years, there is no attempt at an invalid suspension of the power of alienation.

If the daughter should die before the wife intestate and without issue, and the wife should then die leaving the son surviving under the age of thirty years, the same answer which has been made in regard to the death of the son before the wife applies in this case. The trust was for the life of the wife, and the death of the daughter in the contingency mentioned before the wife did not affect the trust estate, which in this event would be limited by the lives of the wife and son, or by the life of the wife and upon the son attaining the age of thirty years.

I see no legal or other difficulty in carrying out the intention of the testator on the theory that these trusts are separable after the death of the wife.

I think the whole plan of the will is better carried out on the theory of separable trusts than upon any other. The language of the testator in regard to the payment from the trust estate after the death of the wife may reasonably be regarded as a direction to divide the estate and pay the income of one moiety to the daughter, and that of the other moiety to the son. Other provisions of the will lend color to the correctness of this interpretation; among them is the provision for taking $50,000 from the son’s share as an advancement to him, and giving him the rents and profits arising thereafter from his share of the estate, and deducting the said sum of $50,000 from the principal of his share. And the principal is to be charged to him when he is paid at the age of thirty the full amount of his share in the estate. Some of the provisions in regard to the daughter lead to the same conclusion. It is not material to specifically mention them.

There is one feature resulting from this construction of the will which I have not yet mentioned, but which must be adverted to and decided before we can reach the conclusion that the trusts which are objected to are valid. It has appeared that in the contingency of the death of the son before the wife, the trust term was limited by the lives of the wife and daughter, while upon the other contingency, viz., the death of the wife before the son, the trust in the one-half of the estate was limited by the lives of the wife and son, or upon the life of the wife and the attainment by the son of the age of thirty years. The two lives which govern the duration of the trust in one contingency are not the same two lives which govern its duration in the other. Does this circumstance render the trust void.

I do not see why it should. In no event is there a suspension for more than two lives in being at the creation of the trust, and upon any contingency the trust must determine upon the death of the survivor of two lives in being when it was created.

Contingencies are provided for by the testator, and he says, in effect, that upon the happening of one contingency the trust shall terminate upon the death of my wife and daughter, and upon the happening of the other upon the death of my wife and son. The wife is the one person whose life is counted in both contingencies, and in the one the daughter is added and in the other the son; but one or the other of the two contingencies must happen, and in no event is the trust to endure longer than the two selected lives in being at its creation. Such a provision does not run counter to the views upon which our statute against perpetuities is based. The common law regarded the burden of proof as being upon the party who claimed it to sustain a future gift, and by one decision after another, the courts holding some good and some bad, finally settled down to the rule that all future gifts, to be valid, must be limited to a life or any number of lives in being and for twenty-one years thereafter. 1 Jar. on Wills, 252, 5th Am. ed. Our Revised Statutes limited the term to two lives only, and both must be in being when the estate is created. In this case the two lives are thus in being.

Where a trust is created which by no possibility and in no contingency can endure longer than during the existence of two lives in being, of what consequence can it be that if one contingency happen, the estate is to be measured by two named lives, and if the other contingency happen, the estate is still to be measured by two named lives, but one of them is different from the one named in the other contingency ? So long as both contingencies cannot, happen the number of lives upon whose duration the trust term is to be limited cannot be more than two actually named and in existence when the trust was created. I cannot discover any reason which forbids such a contingency and such a limitation imposed thereon. I have not been able to discover any authorities upon this precise point, and we must, therefore, rest our decision upon the general principle that so long as the trust can last but two lives, which two shall be the selected ones may be left to the happening of a contingency such as exists in this case.

The construction which we have above given would leave the main trusts of the will valid. All concede the invalidity of the trust for the accumulation of the income. The special term while holding the main trust valid, adjudged that relating to the accumulation to be void. We think the special term was right.

The judgment of the general term must, therefore, be reversed and that of the special term affirmed, with costs of all parties to be paid from the estate.

All concur.


author: Ruger, Ch. J.

text:
    Benjamin F. Batchelder, App’lt, v. The Council Grove Water Co., Resp’t.

      (Court of Appeals,

      Filed January 26, 1892.)

    Corporations—Mortgage—Foreclosure.
    Mortgage bonds were given in 1889 payable in 1912, but containing a provision that in case of default in the payment of the interest coupons * * * the principal should “become due in the manner and with the effect provided in the said trust deed or mortgage.” Said trust deed directed that upon- default in the payment of the coupons for six months after presentation the principal should become due and the trustee migjht so declare the same and upon written request of the holders of a majority of the bonds should foreclose and collect the principal and interest of the outstanding' bonds. Held, that this impliedly excluded all other methods and confined the bondholder to the remedy expressly authorized.
    (Finch and Gray, JJ., dissent.)
    Appeal from judgment of the New York superior court, general term, affirming judgment declaring that plaintiff was not entitled to recover the principal of the bonds sued upon, and limiting his recovery to the interest represented by the coupons.

      F. T. Moissen, for app’lt; Isaac I. Miller, for resp’t.
   Ruger, Ch. J.

This action was brought in September, 1889, to recover the principal and interest of three several mortgage bonds for $1,000 each, payable July 1, 1912. It is, therefore, apparent that the action, except on the coupons for interest, was prematurely brought, unless there are other circumstances appearing in the case, showing that an earlier day for the payment of the bonds had been provided. It is claimed that these circumstances appear from a clause in the bond reading as follows : “In ■case of default in the payment of any of the interest coupons attached to this bond in the manner provided in the trust deed and mortgage hereinafter mentioned, then and in that case the principal sum of this bond shall become due in the manner and with the ■effect provided in the said trust deed or mortgage.”

Default having been made in the payment of the coupons, the plaintiff claims that the bond became absolutely due ana entitled him to enforce its payment in any way available to any holder of ■a past due obligation. This claim would, undoubtedly, be sustainable, provided the bond had stopped with the words: “ The principal sum shall become due; ” but it did not, in fact, stop there, but continued with the following qualification of the previous •sentence: “in the manner and with, the effect provided in the said trust deed or mortgage.”

It therefore becomes necessary to refer to the trust deed or mortgage to determine the extent and character of the qualifications, for it cannot be disputed but that this clause made the provisions of the trust deed an essential part of the contract between the bondholder and his obligor. The clause in the trust deed to which the bond referred reads as follows: “ If default be made by the said party of the first part in any half year’s interest on any of said bonds, and the warrants or coupons for such interest shall have been presented and its payment demanded, and such default shall have continued for six months after such demand, without the consent of the holders of such coupon or bond, then and thereupon the principal of all of said bonds hereby secured shall be and become immediately due and payable, anything in such bonds to the contrary notwithstanding, and the said party of the second part may so declare the same and notify the party of the first part thereof, and upon the written request of the holders of a majority of the said bonds then outstanding shall proceed to collect both principal and interest of* all such bonds outstanding by foreclosure and sale of said property, or otherwise, as herein provided.”

This clause plainly limits the effect of the provision making the principal of the bonds due upon the failure to pay semiannual interest, and it prescribes the manner in which such a breach of the contract shall be made available. It authorizes the trustee, upon the request of a majority of the bondholders, to foreclose the mortgage and distribute the proceeds realized thereby equally among the bondholders. By prescribing the effect which the clause shall have on the contract, and the particular manner in which a default in the payment of interest shall be availed of, it impliedly excludes all other methods and confines the bondholder to the remedies expressly authorized. If the method provided by the mortgage be pursued, it subjects the action to be taken by the bondholders to the will of a majority, and insures that course of action, with respect to the property of the debtor, which will enure to the best interest of the bondholders as a class. This prevents individual bondholders from pursuing an individual course of action and thus harassing their common debtor and jeopardizing the fund provided for the common benefit. The manifest equity and justice of such a proceeding indicates the intent of the parties in drafting the form of the bond.

The.plaintiff’s right of action is based solely upon the language of his contract, and if he doés not make out a right to recover by virtue of its terms, his action must necessarily fail. We think that the reasonable construction of the contract requires us to hold that the principal sum of the mortgage debt, upon the failure to pay interest thereon, was not intended to be made payable except in the manner specifically provided by the terms of the mortgage. McClelland v. Norfolk Southern R. R. Co., 110 N. Y., 469; 18 St. Rep., 844. Any other holding would authorize the individual bondholders to pursue the company and strip it of its present funds and rights of action and destroy its capacity to cony on its business and thereby protect its creditors. It is not reasonable to suppose that the bondholders, as a class, intended to make a contract which should lead to that result. It was, of course, correct for the trial court to authorize judgment to be given for the past due coupons, as, by the express terms of the contract, as manifested by the mortgage, bond and coupon, the interest was made payable unconditionally on a specified day, and this was entirely consistent with the holding that the principal sum was not due, because, by the terms of the contract, it was not made unconditionally payable on the happening of the event mentioned.

It follows, from these views, that the judgment below should be affirmed, with costs.

All concur, except Finch and Gray, JJ., dissenting.

       Affirming 38 St. Rep., 529.


author: Barnard, P. J.

text:
    The Excelsior Brick Co., Resp’t, v. The Village of Haverstraw, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Villages—Discontinuance and alteration of streets.
    A resolution of village trustees discontinuing a highway and substituting a way to which the village has no title without application therefor, release of damages,’ certificate of freeholders or opportunity to the owners of property to be heard, is inoperative and void.
    Appeal from judgment in favor of plaintiff, entered on a trial before the court without a jury.
    Action to restrain the defendant, by its officers, from interfering with the lands of plaintiff. Such lands embraced territory which formerly constituted portions of certain streets.
    On tie hearing a resolution of the board of trustees of the village, passed in 1887, was introduced' in evidence providing that such portions of those streets should be discontinued, but no certificate of freeholders that the same were unnecessary vras shown.

      A. Wheeler {F. A. Brewster, of counsel), for app’lt; Irving' Brown (Calvin Frost, of counsel), for resp’t.
   Barnard, P. J.

The order discontinuing parts of Division and other streets in the village of Haverstraw was inoperative and void. By the Eevised Statutes a road could only be discontinued upon the certificate of twelve freeholders. The charter of the village of Haverstraw is a substitute for this mode. The trustees were given power under the general act for the incorporation of villages “to lay out and open new roads and streets, ana to widen, change and improve other roads.” Chapter 291, Laws of 1870, title 3, 3, subd. 25.

By title 7, § 1 of the same law the trustees can discontinue, open or alter streets. This order provides for an alteration of Division street and also for parts of Liberty street and Allison avenue. An alteration can only be made on the petition of ten freeholders, residents of the village, unless all claims for damages on account of the alteration be released without remuneration. The order is not accompanied by this release and there was no certificate of freeholders. It was a mere resolution of the trustees discontinuing a highway and substituting a way to which the village had no title. The resolution in its effects destroyed the symmetry of the village street system, and without any right did so by the substitution of a narrow circuitous and unsightly substitute. Those lands lying on Division street altered out of existence are deprived of all compensation. There was no application, certificate of freeholders, and no opportunity to be heard before the jury, and no application or opportunity to be heard under the village charter.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    Sarah Coyne, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Negligence—Evidence.
    A physician who was called to attend the plaintiff on the day of the injury, and has continued to attend her to the time of the trial, is competent to give an opinion as to the permanence of the injuries.
    '2. Same.
    In such case it is not necessary that the question should he hypothetical in form.
    Appeal from judgment in favor of the plaintiff, entered upon verdict, and from order denying motion for a new trial.
    Action for injuries alleged to have been caused by the negligence of defendant, its servants or agents.
    Plaintiff’s evidence tended to show that as she was about to leave defendant’s cars after they had stopped, they suddenly stai'ted with a jerk, which threw her across the back of a seat, and injured her.
    Upon the trial Dr. Lewis H. Miller, the physician who attended Mrs. Ooyne, after testifying as to the nature of her injury and the symptoms of which she complained, was asked the following questian, which he answered under objection of defendant’s counsel: “ Q. In your judgment, and from your knowledge of the case- and the symptoms, has this injury permanently affected Mrs, Coyne ? A. I should say that, of course previous to this 19th day of July I never saw the lady at all, and never treated her, but the fact that her health previous to that was as she claims, Í should say that it had.’’

      Julien T. Davies and Samuel Blythe Rogers, for app’lt; Frederic S. Barnum; for resp’t.
   Pratt, J.

The only objection seriously urged to the recovery is that it is claimed that Dr. Miller was allowed to give an opinion without a proper foundation having been laid therefor. We are not able to see that the objection is well founded.

He was asked whether in his opinion the injury was permanent. It has already appeared that he was called to attend the plaintiff on the day of the injury, and had continued to attend down to the time of the trial. Her condition during this time had been given with great detail.

Ho one could have a better opportunity to observe her condition, and if it were held that a surgeon under those circumstances could not give an opinion as to the permanence of the injuries, it is difficult to see how that fact could be proved before; a jury.

Appellants argue that opinions can only be testified to in-answer to questions hypothetical in form. Such a rule would sacrifice substance to form. But were the objection well founded it is cured by the answer. For in his testimony the witness, avowedly bases his opinion upon specified facts alleged by the plaintiff.

The jury were, thus notified that the surgeon’s opinion as expressed was conditional upon their finding the facts to be as claimed by the plaintiff,

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    James Cargain, Jr., Resp’t, v. William W. Everett, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Contract—Performance—Quantum meruit.
    When the complete performance of a contract is prevented by the failure-of the owner of the building to supply materials as called for by the contract, the contractor may recover on a quantum meruit.
    2. Justice's court—Amendment of pleading.
    Where the proof shows that the work done was worth more than-the amount claimed in complaint, the complaint may be amended in that respect at the close of the trial.
    3. Same—Jury.
    Until the new jury list is filed with the justice, it is his duty to draw a jury from the old list.
    Appeal from judgment of the county court of Putnam county, affirming judgment in favor of plaintiff recovered upon verdict of a jury in justice’s court.

      Action to recover for services rendered by plaintiff in partially painting a house for defendant. Under the contract therefor defendant was to furnish the materials, but he failed to do so.
    On the return day, July 22,1890, the defendant demanded a jury trial, and the justice thereupon drew one from the list of jurors drawn in 1887. On the adjourned day defendant moved to quash the panel on the ground that it was drawn from the old, and not from the new list, and that the term of office of the jurors on the old list had expired, which motion was denied. It appeared that a new list had been filed with the town clerk, July 7, 1890, but such list had not been filed with the justice.
    At the close of the testimony the’ complaint was amended by increasing the amount demanded, to conform to the proof.

      Odie Close, for app’lt; Clayton Ryder, for resp’t.
   Pratt, J.

Plaintiff agreed to paint a house for defendant for $100, material to be supplied by defendant.

When the work was partially done the material gave out; defendant neglected to supply more, and after waiting a reasonable time, plaintiff brought suit. He proved the number of days work done, and that the reasonable value of a day’s work was $2.50, and for the amount thus produced he recovered judgment. That was right. To enable him to recover that amount it was necessary to amend the complaint, in which the value of the work was alleged at an amount less than the proof on the trial showed. That amendment was properly allowed.

The justice drew the jury from the list which had been filed with him by the town clerk. It appears that a new jury list had been prepared but not yet been filed with the justice by the town clerk. Until thus filed, it was the duty of the justice to draw the jury from the old list, being the one last filed with him. Laws 1889, chap. 505.

The appeal is without merit and judgment is affirmed.

Barnard, P. J., and Dykman, J., concur.


text:
    In the Matter of the Probate of the Will of William W. Merriam, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Will—Execution.
    Where the attestation clause is full and complete and the will was drawn and witnessed by one who was a lawyer and accustomed to the requirements of the execution of wills, his testimony that all the requirements were complied with is sufficient to show due execution, notwithstanding the other witness, who was a law student and paid little attention to the matter, testifies to the contrary.
    3. Same-Capacity op testator.
    Testator was eccentric; he was a college graduate and had been a teacher; he was in the habit of malting wills in favor of school girls to whom he took a fancy; his memory was defective at times, but not unusually so, and he could make clever public addresses; he disinherited his near relations but gave his reasons for doing so. and there was never a time wlmn he did not understand his affairs or know the effect of his acts. Held, that he was not incapable of making a will.

      Appeal from decree of the surrogate’s court of Suffolk county ■ admitting the paper in question to probate. The will in question gives all the testator’s estate to the government of the United. States.

      Timothy M. Griffing and George D. Robinson, for app’lts; Jesse Johnson, for the United States; George F. Stachpole, for ex’r.
   Barnard, P. J.

The deceased was a resident of Brooklyn, Suffolk county, and died there in January, 1889, at a little over-fifty years of age. He left a will which was admitted to probate by the surrogate of Suffolk county, executed in May, 1888. The next of kin and heirs at law appeal from the decree of the surrogate and allege that the will was not executed according to the-requirements of the statute and that the testator was not of sound mind and memory and therefore incapable of making a will. Tire will was executed by the testator in the presence of B. K. Payne. Payne drew the will upon the instruction of the testator. The attestation clause is full and complete, embodying all the statute-requirements. Mr. Payne testifies that the will was either read over by the testator or by the witness and that testator declared it. to be his last will and requested Mr. Payne and a Mr. Lennon tobe witnesses ; that the testator signed the instrument in their presence and that the witnesses signed as such in his presence and in the presence of each other. Lennon testifies that he did not see the testator sign the paper; that he did not sign as an attesting. witness at testator’s request; but at the request of Payne and in another room from that in which testator was at the time. The surrogate’s finding that the will was properly executed is supported by the evidence. Payne was a lawyer, used and accustomed to the requirements of the execution of wills. The attestation clause states the facts contrary to Lennon’s recollection. Lennon was a law student; had no charge of the execution of the will, and has signed a certificate which is at war with his testimony. Lennon knew of the requirements of the law as to the execution of wills, and signed the attestation clause, as he says, without reading it; that the execution was of no concern to him whether it was done right or wrong, and that some six years thereafter, and after testator’s death, he seems first to recall the fact that, the will was not properly executed. The surrogate’s finding is upheld on this point of the formal execution of the will.

The evidence as to the mental condition of the testator shows, him to have been very eccentric. He was a graduate of, Williams College, and had been a teacher in the common schools subsequent, to leaving college. He was a man of large property and managed it unaided and without suffering waste or depreciation so long as-he lived. In many respects he was childish in his tastes and occupation. He was in the habit of making wills. He would take-a childish fancy to some young girl and make a will in her favor. These legatees were, it seems, éasilv supplanted by a new fancy or by some sudden change on the part of testator, and the-result would be a new will. The testator was subject to complete changes in his political beliefs. He was capable of writing an address called “happy” or “clever” by those who heard it; he could make political addresses. There was a lack of discipline in his school. His memory was at times somewhat defective, but not unusually so. The evidence fails to show that there ever was a time when he did not understand his affairs, and when he did not know the effects of his acts. He gave his reason always why he did not want his next of kin to take. He had neither father, mother, wife or child. He was dissatisfied with his sister and step-mother in respect to the distribution of his father’s will.

He invented the plan of giving his property to the general government, and directed his lawyer to make his intent effective by will. His sister had plenty of money and the testator knew that they did not need his property. The greatest peculiarity in the deceased, after all, was that he felt called on to teach, which is quite unusual to a man who had so large a property. His girl legatees were generally, if not always, school girls of tender years, and his selection was made without any other motive than a wish to attach them to him practically as a child of his own.

The evidence therefore fails to show the testator incapable of making a will. The will was freely made, without suggestion and without restraint. It was made by one who knew the condition of his property and the scope, meaning and effect of his will, and the decree should therefore be affirmed, with costs. Horn v. Pullman, 72 N. Y., 270; Delafield v. Parish, 25 id., 9.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Andrew J. Nutting, Resp’t, v. The Kings County Elevated R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Verdict—Contradictory testimony.
    The complaint alleged that defendant had procured plaintiffs consent to the building of its road on an agreement to pay ten per cent of the value of his property, which was not paid; that it afterward agreed to pay him §9,000 for an adjournment of the hearing of an appeal taken by him in eminent domain proceedings. On the trial plaintiff, after testifying positively that the payment was to be for the adjourdment only, admitted on cross-examination that it was to include the right of way across his premises. Held, that his testimony was so contradictory and unsatisfactory that a verdict based upon it should not be permitted to stand.
    Appeal from judgment in favor of plaintiff.

      Vanderpoel, Cuming & Goodwin (Delos McCurdy, of counsel), for app’lt; W. J. Gaynor, for resp’t.
   Dykman, J.

The complaint in this action alleges the ownership of the plaintiff of certain real property in Fulton street, and the defendant requested him to sign a consent for the building and operation of its railway, and promised to pay him therefor the same as it was paying other property owners for similar consents, which was ten per cent, on the valuation of the property.

That the assessed valuation of the plaintiff’s property was $90,-000 ; that he signed the consent under such agreement and delivered the same to the defendant, but the defendant has not paid and refuses to pay the plaintiff the sum of $9,000, to which he is entitled under the said agreement.

For a second cause of action the complaint alleges that in January, 1888, the defendant instituted proceedings for the acquisition of the easement and rights of the plaintiff in Fulton street, that the plaintiff appeared in the proceedings and raised an issue which was tried and decided in favor of the defendant and order to that effect was entered which was affirmed by the supreme court at general term, and the plaintiff appealed to the court of appeals from the order of affirmance.

That the appeal was on the day calendar of the court of appeals for hearing on or about the 27th day of November, 1888, at the same time with another appeal in the matter of the Union Elevated Eailway Company.

That the day before the appeal of the plaintiff was to have been heard, the defendant promised and agreed if he would consent to have his appeal set down and heard with the other appeal, “ to pay him in cash as high a sum as it had paid or agreed tó pay to any property owner on the said Fulton street for consenting to or signing the statutory consent for the building and operation of its railway on the said Fulton street, in proportion to the value of the plaintiff’s said real property as compared with the value of such other real property so consented for as such values might appear on the books of the department of assessments of the city of Brooklyn, namely, that it would pay to the plaintiff a sum which would be equal to the same percentage of the said value of his property as the'sum paid or agreed to be paid to such other property owner or owners was of the value of their property."

At the trial 'the plaintiff and his attorney were the only witnesses for the plaintiff, and no testimony was offered by the defendant

After the plaintiff had given testimony tending to show that the company agreed to pay him $9,000 for the adjournment of the hearing of his appeal, the plaintiff testified as follows:

“ By the court :
“ Q. Had you asked $9,000 in these conversations which you had with Judge Shea for this consent which you had given ? A. Yes, sir.
“ Q. That is, had you asked it apart from the adjournment question ? A. Yes, sir.
“By defendant’s counsel:
Q. By that you intended and understood that the company were to have the right of way across your premises ? A. Yes, sir.
“ Q. And that was included in the $9,000 ?
“By plaintiff’s counsel: How does he know that?
“By defendant’s counsel:
“ Q. As you understood it, that the $9,000 which you asked in the office of Yanderpoel, Cuming & Goodwin in October, 1888, and in the $9,000 which you say Judge Shea promised to give you, was not there included' the right of way of the company across the premises? A. I stood in ‘the same position as they settled with others, there was nothing said.
“Q. ..Didn’t you understand that that payment of $9,000 included the right of way across your premises V A. I suppose that was it, yes, sir; that they were to have that privilege.”

This last evidence is inconsistent with the first part of the plaintiff’s testimony, and is irreconcilable therewith. It is, moreover, much more consistent with all the circumstances which cluster round the transaction.

It is inconceivable that this corporation or any of its agents would agree to pay the plaintiff $9,000 for the postponement of the argument of an appeal with no condition attached respecting the ultimate determination of the case, when for the same sum it could buy out the litigation and secure the easement of the plaintiff in the street. That was what the plaintiff had agreed to take, and the defendant held the consent, and yet the jury must have found, contrary to the latter part of the plaintiff’s testimony, that the $9,000 was to be paid for the adjournment only.

The judgment must stand upon the testimony of the plaintiff, unsupported by any fact or circumstance, and as that was inconsistent and contradictory we do not think the jury was justified in taking the statement most favorable to him as the basis of a. verdict and disregarding the testimony which was fatal to his case.

It must be assumed that he made the best statement possible in his own interest, and when he admitted that he understood that the payment of $9,000 included the right of way across his premises, the admission was fatal to his recovery.

The verdict is unjust because if it stands the plaintiff will receive $9,000 for nothing, and collect the damages resulting from a deprivation of his easement besides, a result which never could have been intended by either the defendant or the plaintiff, and his testimony is antagonistic to such a theory and such a result. The verdict must have been the result of misapprehension.

Our conclusion is that the testimony of the plaintiff is contradictory and unsatisfactory, and that a verdict based upon it cannot be permitted to stand, and that the motion of the defendant to dismiss complaint should have been granted.

The judgment and order denying the motion for a new trial should be reversed, and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.