author: Boardmax, J. :

text:
    GEORGE KALE, Appellant, v. JOHN ELLIOTT, Survivor, etc., of ROBERT H. HUME, Respondent.

      Section 829 of the Code of Civil Procedure — when plaintiff may testify as to a conversation with a deceased partner.

    In an action against the surviving partner of a firm, upon a contract made with . it, the plaintiff is a competent witness to testify to a personal transaction had with the deceased partner, if the defendant was present at the time of its occurrence.
    Appeal from a judgment in favor of tbe defendant, entered upon the report of a referee.
    The action was brought upon a contract made by the plaintiff with the firm of Hume & Elliott, which was composed of the defendant and of Robert II. Hume, since deceased. Upon the trial the plaintiff was sworn as a witness in his own behalf, and testified that he had an interview with Elliott, the defendant, and Hume the deceased partner. The plaintiff’s counsel then offered to give ■in evidence the conversation between Hume and Elliott and the plaintiff, which evidence was objected to, on the ground that the witness was incompetent under section 829 of the Code of Civil Procedure, and the evidence was excluded, and plaintiff’s counsel excepted. The plaintiff’s counsel then offered to give in evidence merely what was said and done on the same occasion between the •defendant and the plaintiff. This evidence was also excluded for the same reason.

      H. Countryman, for the appellant.

      Henry Smith, for the respondent.
   Boardmax, J. :

In Comstock v. Hier (7 N. Y. W’kly Dig., 300), the Court of Appeals, by Allen, J., hold according to the head note, as follows: The death of one of the partners in a firm, with which plaintiff has ■made an arrangement, does not render the plaintiff an incompetent witness to prove the transaction, so long as the other partner who was present at the interview is living. This is the latest decision of the Court of Appeals upon this subject to which our attention has been called. As it meets all the facts in the present case, we must bo guided by its authority. There has been some misapprehension of the decisions, which has led to the erroneous ruling of the learned referee on the trial. The case cited has been since made public and makes clear the law applicable to this case.

In Kraushaar v. Meyer (6 W’kly Dig., 117), it was held, Eakl, J., that the declarations of a deceased person, made to a third party in a conversation in which the defendant took part, are inadmissible in an action brought by the executor of such deceased person.

Cary v. White (59 N. Y., 336) holds that section 399 of the Code docs not preclude a party from testifying to statements made by a deceased person to a-third party, even where the witness took part in the conversation, so long as the testimony is limited to what was not personal between him and the deceased.

In Brague v. Lord (67 N. Y., 495), the plaintiff was allowed to testify to conversations between defendant’s testator and one Barron, which plaintiff, being present overheard, and to some extent' took part in. The Court of Appeals, Rapallo, J., held the exceptions to the ruling of the court admitting this evidence to be well taken.

Without following past decisions further, we have gone far enough to see how easily the referee was led to the erroneous ruling made by him in rejecting the evidence of plaintiff of conversations between him and Elliott when Hume, the deceased partner of Elliott, was present. For this error the judgment must be reversed.

It is not necessary to consider the propriety of the nonsuit, since upon a new trial the evidence may be quite different from that presented to us now.

The judgment must be reversed, the reference discharged, and a new trial granted, costs to abide the event.

LeabNee, P. J., and Bocees, J., concurred.

Judgment reversed; new trial granted; reference discharged; costs to abide event.


source: Caselaw Access Project

author: Boardman, J.:

license: Public Domain

text:
    DANIEL E. DONOVAN, Appellant, v. JAMES H VANDEMARK, Respondent.

      Trust of real estate — when unauthorized and void.

    A testator devised certain real estate to a person therein named, “in trust, nevertheless, for the necessary support and maintenance of my son Abraham, during his natural life, and, after the death of the said Abraham,” to his lawful children.

      Meld, that the trust was not authorized .by the Revised Statutes and was void.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    Tho action was one in ejectment. Its determination depended upon the question whether or not a trust attempted to be created by the will of Andrew Schoonmalcer, deceased, was valid.
    The will provided : “I give, devise and bequeath to my friend George Chambers * * # all my real and personal estate, of every name and kind, wheresoever the same may be, intrust, nevertheless, for the necessary support and maintenance of my son Abraham, during his natural life, and, after the death of the said Abraham, to give and bequeath the said estate to the lawful children of the said Abraham, their heirs and assigns.”
    George Chambers refused to act as trustee and the plaintiff was appointed in his place.

      Van Etten & Clearwater, for the appellant.

      J. Newton Fiero, for the respondent.
   Boardman, J.:

I am entirely satisfied with the conclusions reached by the learned judge at Special Term, as expressed in his memorandum or opinion.

In Leggett v. Perkins (2 Comst., 297) it was settled, by a divided court, that a trust to receive the rents and profits and pay them over to the beneficiary is valid. Before that decision many learned judges thought such a trust within the prohibition of the Revised Statutes. Since then we have had numerous cases relating to these kind of trusts, but no well considered case is produced which would sustain the appellant’s views. In Rawson v. Lampman (5 N. Y., 456) a conveyance to one “ to have and to hold the same in trust for, and for the use, benefit and behoof of, Mary Cooper, * * * her heirs and assigns,” vested no estate or interest in the trustee. Again, where the beneficiary is entitled to the actual possession of the lands, and the receipt of the rents and profits, he is vested with the entire estate. (Wright v. Douglass, 7 N. Y., 564.) In Vernon v. Vernon (53 N. Y., 359), Judge Aedrews says : “ It is sufficient that a purpose within the statute is clearly embraced in the language used, or that a power, conferred in express terms, includes a power over the estate, for the execution of which the trustee may bo clothed with the legal title.”

In the case before us, the words, “in trust for the necessary support and maintenance of my son, during his natural life,” does not express a purpose within the statute, nor is it necessary that the trustee should be clothed with the title in order that the son should get his support and maintenance from the real estate. The trustee has no power to lease or collect and receive the rents to the use of the testator’s son. If there were doubt about the case of Leggett v. Perkins (supra), how absolute must be the conviction that this is not an active and valid trust within subdivision 3 of section 55 of 1 Revised Statutes, 728. (Jarvis v. Babcock, 5 Barb., 139.)

Intent is an important consideration in the construction of wills, but a trust estate prohibited by statute cannot be made valid by virtue of the testator’s intent, even if perfectly apparent. (Selden v. Vermilya, 3 N. Y., 525.) Nor is there any good authority for saying such trusts are permitted for the benefit of special classes, such as infants, idiots, spendthrifts, etc. By the Revised Statutes all trusts are abolished, except such as are thereby permitted. There is nothing in .the language used authorizing the creation of express trusts in any way limiting them to particular classes.

Without undertaking to examine and compai’e the many decisions on this subject, we think the judgment should be affirmed, with costs.

Bocees, J., concurred, LearNed, P. J., taking no part.

Judgment affirmed, with costs.


author: Learned, P. J. :

text:
    MILO C. OSBORN, Respondent, v. HENRY B. SCHENCK, WILLIAM. T. Y. SCHENCK AND ADELAIDE L. SCHENCK, Appellants.

      Conversion of articles by one tenant in common — what does not amount to.

    In October, 1872, the plaintiff and one Platt owned, as tenants in common, a mill, together with the machinery therein, including a planing machine. On or about the fifteenth of that month Platt executed a chattel mortgage upon the planing
    ■ machine to the defendants, from whom he had purchased it, to secure part of the price thereof, they then knowing that the plaintiff owned an undivided one-half thereof. Subsequently it appeared that the machine was x-emoved by the
    ■ direction of the defendant Henry B. Schenck and placed in a building belonging to the defendants, whei’e it still l-emained.
    In this action, bx’ought to l’ecover damages for the conversion of the plaintiff’s interest therein, held

    (1.) That the giving of the moi'tgage upon the whole of the machine by Platt to the defendants did not i-ender the defendants guilty of a convex-sion of the plaintiff’s intex-est thei’ein, however it might be as to Platt.
    (2.) That the acts of Ileni'y B. Schenck did not amount to a conversion, in the absence of px-oof of a sale by him, or a refusal to deliver to the plaintiff coupled with an assertion of an exclusive ownei-ship.
    Appeal by tbe defendants from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    This action was brought by the plaintiff for the alleged conversion by defendants of the plaintiff’s undivided half of a planing machine. One Platt purchased the machine of the defendants in February, 1871, without payment of the purchase-money. After-wards and on the 18th of June, 1872, Platt sold one undivided half of a mill with the machinery therein, including this machine, to the plaintiff. On or about October 15, 1872, Platt executed and acknowledged a chattel mortgage of the machine in question to the defendants for part of the purchase-money of the machine, which mortgage was filed in the proper clerk’s office. At or about the same time the plaintiff and Platt leased the mill property and machinery in the building, including the planer in question, to Donaldson & Musson for the term of five years from October 15, 1872, at an annual rent of $2,500 per annum, payable quarterly. Subsequently the machine was taken, and removed by direction of the defendant, Henry B. Schenck, to a building owned by the defendants.

      Griswold (& Crowell, for the appellants.
    The facts do not show a conversion by defendants so as to enable the plaintiff to maintain the action. {Fiero v. Betts, 2 Barb. Rep., 633-635 [3d. Dist.]; Gilbert v. Dickerson, 7 Wend. Rep., 450; Nelson v. Reid, 3 John., 178; St. John v. Standing, 2 id., 468; Fenning v. Lord Grenville, 1 Taunton, 241; Fobes v. Shattuck, 22 Barb., 569.)

      J. I. Werner, for the respondent.
    It is the settled law of this State that one tenant in common of chattels can maintain trover against his co-tenant, in all cases ivliore such co-tenant has exorcised exclusive dominion over the common property, claiming it as his own, or has lost, or sold, or destroyed such property ; and that the tenant whoso interest has been thus appropriated, lost, sold or destroyed is not left to the sole remedy “ to take possession when ho can see his time.” {Wilson v. Reed, 3 Johns., 178; Ilyde v. .Stone, 9 Cowen, 232; Mumford v. McKay, 8 Wend., 444; White v. Stone, 21 id., 72; Tyler v. Taylor, 8 Barb., 585; Benedict v. Howard, 31 id., 569; Van Doren v. Baity, II Hun, 239; Freeman on Co-tenancy, §§ 307, 308, 310, 311, citing, besides, several of the above cases; Delaney v. Root, 99 Mass., 547; Wheeler v. Whaler, 33 Me., 349; Dyckman v. Valiente, 42 N. Y., 549; Strickland v. Barker, 54 Me., 264, similar in its facts to 31 Barb, [swpm], and both cases are referred to in Freeman, § 317; Waddel v. Cook, 2 Ilill, 47, and note a.)
   Learned, P. J. :

The more mortgaging of the planing machine was not a conversion. It does not appear that it was, or that it was intended to be, a denial of the plaintiff’s rights, and it was accompanied by no act which, in any way, disturbed or molested his claim. In Van Doren v. Balty (11 Hun, 239) the mortgagee of an undivided half assumed at public auction to sell the whole. In the present case the notes, to secure which the mortgage was taken, were made to correspond with the rent of the lease, and this tended to show that the mortgage was not intended to deprive the plaintiff of, orto affect, bis share of the planing machine. The plaintiff’s rights were known to the defendants when they took the mortgage ; and the mere fact that, in terms, the mortgage covers the whole machine, instead of the undivided half, does not make it a conversion. But again, if the executing of the mortgage by Pratt was a conversion by him, that does not prove a conversion by these defendants. Thus, in Dyckman v. Valiente (42 N. Y., 561), the court say that a sale by one of several owners in common of the property as his own, ignoring the right of the co-owners, is a conversion; and, further, that if the purchaser should also sell and deliver the property as his own, the co-owners coidd maintain trover against him for the subsequent conversion. Thus it is implied that the mere receiving of the property by the purchaser is not a ground for trover» Certainly not until demand and refusal.

The mortgage had become partly payable when the defendants, or some of them, took the property. And therefore by default such title as the mortgagor possessed had passed to the defendants. At the time of the taking of the planing machine, it was in a building owned in common by the plaintiff and Pratt, and the building, with the machinery, had been leased for five years to Donaldson & Munson and was in their possession.

In regard to the alleged taking, the evidence is that Henry B. Schenck, one of the defendants, took the machine out of the mill, and that it was afterwards seen in the mill of the defendants, and that the same defendant, Henry B. Schenck, said they had a right to take it, and did take it away. No evidence is given connecting the other defendants with the act of taking.

A motion for nonsuit was máde separately in behalf of each of the other defendants. I see nothing which connects them with the taking. The planing machine is proved simply to be in the mill of the defendants. It is not shown that the defendants, other than Henry B. Schenck, have ever exercised any rights over it, or claimed to own it, or that they authorized Henry B. Schenck to take it. The fact that he claims to justify under a mortgage to all of the defendants does not show that all of them converted the property.

A more difficult question is presented in respect to Henry B. Schenck. The plaintiff urges that his act was a conversion. The defendants say that his act was the lawful taking by one co-tenant of property held in common. It is not disputed by the plaintiff that, at the time when he took the planing machine, he ivas co-owner thereof with the plaintiff. Yet the machine was in a building owned partly by the plaintiff and partly by Pratt, who had ceased to be the owner of any part of the machine. And the plaintiff, so far as appears, was not acknowledging any rights of the defendants in the machine. Now, could it be said that the plaintiff had converted the machine so as to bo liable to pay the defendant half the value ? If not, what more has the defendant, Henry B. Schenck, done, on his part, that he should be liable to pay the plaintiff ? Before Schenck took the machine, it was on the plaintiffs’ promises, used for his benefit. Now it is on the defendants’ premises, and, so far as appears, not used at all.

The case of Dyckman v. Valiente, above cited, does not apply, because the defendant, the co-tenant, has not sold the property. Wilson v. Reed (3 Johns., 178) was the case of a sale and delivery by the co-tenant. So was the case of Mumford v. McKay (8 Wend., 444). In Van Doren v. Balty (11 Hun, 239) the co-tenant had sold the whole property, claiming it exclusively. The action was against the purchaser, after a demand and refusal, and an assertion of his exclusive claim. In Delancey v. Root (99 Mass., 547) the defendant took the entire possession of the entire property, a crop of grain, and fed it to his cattle. Thus none oí these cases are analogous to the present.

The case of Benedict v. Howard (31 Barb., 569) is thought to be authority for the ruling in the present case. In that case the defendant took machinery, engines, etc., which were common property, out from a mill, and put them up in a building of his own and used them. The court say that he had changed personal property into real, and the plaintiff could not repossess himself of it without being a trespasser. And the court compared that to the case of a tenancy in common of bricks, which one co-tenant takes and uses in building his own house.

Nothing of that kind appears here. The property is not shown to have been changed into real property. So far as avc can judge it vauis, and is, personal property. Nor is it used for the exclusive benefit of the defendants. All that is proved is that Henry B. Schenck said they had a right to take it. There is nothing to show that this was the assertion of an exclusive right. (Gilbert v. Dickerson, 7 Wend., 449.)

I think, therefore, First. That whatever the effect of Pratt’s mortgage was, in respect to him, it did not of itself make the defendants liable for a conversion. Second. That no evidence is produced to make the defendants, other than Henry B. Schenk, liable. Third. That, as to Heury B. Schenck, he is not shown to have converted the property, either by selling it as his own or by a refusal to deliver, and an assertion of exclusive rights.

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

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed, new trial granted, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK AND CANADA RAILROAD COMPANY, Respondent, v. DAVID BARRETT and others, Commissioners, etc., of the Town of Dresden, Appellants.

    1867 — chap. 874, § 2 — affidavit of assessw — how it may be impeached — proof of consents.

    In an action to compel the commissioners of a town to issue its bonds to a railroad company in exchange for its stock, the assessor, who made the affidavit, equired by section 2 of chapter 874 of 1867, testified that he signed the paper, ut did not make oath to it j that the contents were not stated to him, and that he did not know, and had taken no means to ascertain whether a majority of the taxpayers had consented. The affidavit purported to have been taken before one of the attorneys for the road. I-Ie testified that he read the affidavit to the assessor who swore to it; that he told the assessor that a majority of the taxpayers had consented, though he himself had no knowledge of that fact, except as he had been told by others.

      jHeld, that the town was not bound by the decision of the assessor that a majority had signed the consent, and that the road could not compel the issue of the bonds.
    What proofs and acknowledgments of the signatures to the consents are sufficient, considered.

      Appeal from a judgment in favor of the relator, entered upon the trial of this action by the court without a jury.

      O. F. Davis, for the appellants.

      Tanner & Potter, for the relator.

       See People ex rel. N. Y. and C. R. R. Co. v. Hutton, ante, p. 116.

   Learned, P. J. :

This is an action to compel, by mandamus, the defendants to issue bonds of the town of Dresden and deliver them to the relators. Judgment was given for the people on the trial, and the defendant appeals.

It must be noticed, in the outset, that this is not a question between the town and bona fide holders of its obligations. The controversy is simply between the company and the town. And the question is, whether there has been such a valid contract between those parties that the town should, by mandamus, be compelled to perform it.

The relators claim their rights under chapter 874, Laws of 1867. By the second section of that act the consents to the bonding of the town are to have indorsed upon, or annexed to them, an affidavit of one of the assessors of the town, showing that a majority of the taxpayers had consented. Such an affidavit appears on the consents.

The assessor who made it, being called as a witness, testified that he signed the paper, but that he did not make oath to it; that the contents were not stated to him ; that he did not know whether a majority of the taxpapers had consented; that he took no means to inform himself; that he saw nobody else make any computations.

The officer before whom this affidavit, purporting to have been verified, was one of the attorneys for the relators, who was then engaged in the business of procuring the bonding of the town. He states that he read the affidavit to the assessor and swore him to it. But it appears from his own evidence that he told the assessor that a majority had consented to bond the town ; and he stated this without having the assessment-roll present. The defendants offered to prove that in fact a majority did not consent ; but this was excluded.

Now, whatever may be the judicial or quasi judicial character of the assessor’s act in counting up the consents, and making an affidavit that they are a majority of the taxpayers, it certainly cannot be that a company may, through its attorney, induce an assessor to make an untrue affidavit, to omit to make any examination whatever as to its truth, and to sign it on the mere statement of the attorney; and that the same company can claim that such an affidavit, so obtained, is conclusive to fasten a contract on the town for the benefit of that company. The company’s attorney testifies that he only knew that the majority had signed from what some one told him. He told this to the assessor and caused the assessor to swear to this, which, according to the offer, was untrue. This attorney was carrying on for the company the whole business of procuring the bonding of the town, and the subscribing for the company’s stock. And the company are now insisting that through these proceedings a contract was entered into between them and the town, which is protected by the United States Constitution. • The defendants offered to prove that the affidavit, which was a necessary step in the contract, was false, having already shown that the company had obtained it to bo signed by an unauthorized statement that it was true. The company knew that they wore wrongfully inducing the assessor to violate his duty. They cannot take advantage of their own wrong.

Again it is plain from the second section of the statute, above mentioned, that the only matter as to which the assessor is to decide (if his act can bo called a decision), is whether the taxpayers, whose names appear on the consents, represent a majority. He is, as it were, the counting officer of the vote. His affidavit does not pass upon the validity of the several consents. The statute says that the original consent and affidavit are legal evidence of the facts contained therein. And, thei’efore, if the original consent shows on its face that it is invalid, the assessor’s affidavit does not make it valid.

The consent must be proved or acknowledged in the same manner as signatures to conveyances of real estate. The requirements for such proof or acknowledgment may bo found in 1 Revised Statutes (m. p.), 758, §§ 9. 12 and 15. Now, the fh-st of these consents purports to be witnessed by David Barrett, and the proof of execution to be taken before a notary public, the same person who was the attorney for the company in these proceedings. The certificate of proof does not mention the name of any of the persons who purport to have signed the paper ; it states that he saw each of them sign his name, when, in fact, it appears that four of them made their marks.

The second of these consents, proved and acknowledged before the same notary has, as subscribing witness, William Suody. The certificate does not mention the names of any of the persons to whom lie is a witness. The consent has two columns of signatures, or what purport so to be. Some of them may be intended for names of witnesses. But it is impossible to determine which persons the attesting witness meant when he said that he saw them sign the paper.

The third of these consents is equally defective. It purports to have an acknowledgment attached. The acknowledgment does not contain the names of any person who made it. Nor does it state that the persons making the acknowledgment are known to the officer to bo the individuals described in and who executed the consent. To show how imperfect these certificates are, it may be noticed that, in one case, there is what purports to be a signature of Cynthia M. Western by Samuel Western. The certificate, does not show who signed the paper. Again there is a signature, Barber & Co., and another, Shelden & Benton. But nothing shows who acknowledged or signed the consent.

Wo must bear in mind that this proceeding is one in which the company, the relators, insist that the town has made a valid contract with them, and they ask to have the contract carried out. This is not a collateral proceeding, nor one arising between third parties, or parties having the rights of bona fide purchasers. It is a direct question between the company and the town whether such proceedings have been taken that the town has made a valid contract. And the town has therefore a right to show that any of the proceedings required by the statute have not been taken.

It is unnecessary to go over the cases which have been decided on similar questions. It will be found that where such acts as those of the assessor and of the county judge have been held to be conclusive, the question has arisen collaterally, and not in a proceeding which is directly based upon and is intended tq enforce the transaction alleged to be illegal and void; or else that rights of third parties, bona fide purchasers, have intervened.

The present case comes before us in a manner somewhat unsatisfactory. The judgment recites a verdict for the relators generally. But the case shows ai verdict on one single question only, and there are no other findings. We cannot, therefore, say what was decided by court or jury. And it seems to be unnecessary to examine the other questions in the case.

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

Present — Leakned, P. J., Boaedman and Bockes, JJ.

Judgment reversed ; new trial granted ; costs to abide event.


author: Per Curiam:

text:
    ELLIS H. ROSS, Respondent, v. EDMUND FERRIS AND CHARLES KIRK, Appellants.

      Stipulation not to enforce a judgment for a certain time — sureties on the appeal bond are released thereby.

    The defendants were sureties to an undertaking on an appeal from a justice’s ' judgment. Subsequently, by stipulation of the parties, a judgment of affirmance was entered, on the condition that execution should not be issued thereon for six months.

      Held, that this operated as an extension of time, and released the sureties.
    Appeal from a judgment of the County Court of Tioga county, ■affirming a judgment of a justice of the peace in favor of the plaintiff.
    The action was brought upon an undertaking given on an appeal from a justice’s judgment, which was signed by the defendants as sureties. The appeal was not heard ; but, in pursuance of a stipulation between the parties, a judgment of affirmance was entered “ upon the stipulation and condition that execution should not issue upon the judgment to be entered, under six months.”

      Charles E. Parker, for the appellants.

      Ambrose P. Eaton and Lyman L. iSettel, for the respondent.
   Per Curiam:

Stipulations made by attorneys in actions are held to be binding, without any regard to the question of consideration. Therefore, the agreement in this case, that execution should not be issued until six months after the recovery of judgment, was a valid extension of the time within which the debt could be collected. There could be no question on this point, for the stay of execution was made a part of the judgment itself.

It is a familiar doctrine that any valid extension of time, given by the creditor to the principal debtor, releases the sureties. We do not mean by this that the ordinary extensions of time in actions, or the putting a case over from one term to another, would discharge such sureties as the defendants are. But the agreement to delay execution is a very different matter. It extends the time of payment, which would otherwise be fixed by the judgment. It prevents the sureties, if they should pay the debt, from immediately enforcing the judgment obtained by the creditor, and to which they might be entitled by subrogation.

This is not a question of good faith or bad faith on the part of the creditor. It is merely the application of a rule of law, well settled and necessary for the protection of all sureties.

The judgment of the County Court and of the justices’ court must be reversed, with costs.

Present — LearNed, P. J., Bocees and BoardmaN, JJ.

Judgment reversed, with costs.


author: Per Guriam:

text:
    PATRICK FLYNN AND MAURICE B. FLYNN, as Administrators, etc., of JOHN H. FLYNN, Deceased, Respondent, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant.

      Code, § 309 — only one extra allowance recoverable.

    Under section 309 of the Code the successful party can recover only one extra allowance, although the case may have been tried several times.
    . Appeal from an order made at Special Term, denying a motion for a readjustment of costs.
    This case was first tried in January, 1874, and a verdict rendered for the plaintiffs, and an extra allowance was made and the costs taxed.
    This judgment was affirmed by the General Term but reversed in the Court of Appeals. It was tried a second time and a verdict rendered for the plaintiff, and a second extra allowance was made and the costs, including both extra allowances, were taxed by the clerk of Columbia county, under defendant’s objections. The court below affirmed the clerk’s taxation.

      Ohas. B. Alexander, for the appellant.
    It is not lawful that defendant should pay the costs of erroneous and reversed proceedings, that the judgment should be' dead and the costs live. (Batten v. Stitt, 50 N. Y., 591; Cochran v. Qoldhert, 42 N. Y. Superior Court, 214.) The order is in the teeth of the express provisions of the Code, limiting strictly the amount of allowance, and of the following authorities. (Code, § 307; Hides y. Wal-termire, 7 How. Pr., 370; McQuadey. JV. Y. and Brie Ii. B. Co., 11 id., 436.)

      Robert Payne, for the respondents.
    A finally successful party is entitled to the costs of all prior proceedings in an action. (Howell v. Van Siclen, Ct. of Appeals, 4 Abb. [N. C.], 1; less fully reported 70 N. Y., 595; Isaacs v. Hew Yode Blaster Works, 4 Abb. [N. C.], 4; Code of Procedure, §§ 304, 305, 307; Spring
      y. Day, 44 How., 390; Hamilton v. Butler, 30 id., 36; Sturgis v. Sjoofford, 58 N. Y., 103; Vbn Reliar v. Schulting, 45 How., 139; Lumbard v. Syracuse, etc., R. R., 62 N. Y., 290; Bathgate v. Haskins, 63 id., 261.)
   Per Guriam:

We think it is plain, from the language of section 309 of the Code, that the successful party can recover only one extra allowance, although the case may have been tried several times. Such was the view of the learned justice, whose order is appealed from ; but he felt bound to hold otherwise on the authority of Howell v. Van Siclen (4 Abb. [N. C.], 1). Aside from the extra allowance, the successful party is entitled to his costs for all the proceedings in the case, except such as, being discretionary, have not been given to him. The plaintiff in this case, therefore, is entitled to tax the costs of both trials — the costs at the General Term and the costs at the Court of Appeals.

Nothing is said in the points presented on either side as to the item of interest on verdict; and we therefore pass that item.

The bill of costs must be modified, therefore, by striking out $257.55, being five per cent extra allowance on the first verdict; and, as thus modified, affirmed. No costs of this appeal to either party.

Present — LearNed, P. J., BoardmaN and Bocees, JJ.

Costs modified by striking out $257.55, being five per cent extra allowance on first verdict. No costs of appeal to either party.


author: Learned, P. J.:

text:
    THE GLEN’S FALLS PAPER COMPANY, Appellant, v. WILLIAM H. WHITE, Respondent.

      Section 12 of chapter 40 of 1848 — section 2 of chapter 333 of 1653 — report of trustees — sufficiency of — when defeats need not he alleged in the complaint.

    Section 12 of chapter 40 of 1848 provides that the report, thereby required to be published, “ shall be signed by the president and a majority of the trustees.” Held, that where there were five trustees of a corporation, of whom the president was one, a report, signed by the president and two trustees, complied with the statute.
    The statute provides that the report “ shall be verified by the oath of the president or secretary.” The report was verified by the president to the effect, that “it was, in all respects, ti-ue to the best of his knowledge and belief.” Held, that this was a sufficient verification.
    The statute requires the report to state “ the amount of its existing debts.” The report stated that “ the amount of its existing debts does not exceed $75,000.” Held, that this was sufficient.
    The statement in the report as to its capital was as follows, viz.: “ Amount of capital stock, of which all but five shares were issued for the purchase of property necessary for the business of the association, and such five shares have been paid in full, $15,000.” Held, that the statement was defective, as it could not be determined therefrom what proportion of the capital stock had been paid in in cash, and how much had been issued for property.

      Whitney Arms Co. v. Barlow (6,3 N. Y., 66), distinguished.
    Where the complaint, in an action to charge a trustee for a failure to file and publish the statement required by the said statute, sets out a copy of the report as filed and published, and alleges that it does not comply with the statute, the particular defects therein need not be set forth in the complaint.

      McHarg v. Eashman (4 Robt., 635), distinguished.
    Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed to the complaint herein.

      8. Brown, for the appellant.

      Matthew Hale, for the respondent.
   Learned, P. J.:

This is an action by a judgment creditor of the “ Evening Mail Association,” against a trustee thereof, to recover the amount of the judgment, on the ground of a failure to file and publish the annual statement required by law. A certain statement was published, and is set forth in the complaint. But the plaintiff claims that such statement was imperfect and defective, and that the defendant is, therefore, liable. The defendant demurred, and the court below sustained the demurrer. The plaintiff appeals ; and the only question is on the sufficiency of the statement, and of its verification.

I. It is claimed that the statement was not signed by the requisite number of trustees. The statute requires the statement to be signed by the president and a majority of the trustees. There -were five trustees, of whom the president was one. The statement was signed by the president and two other trustees. That was sufficient.

II. The statute requires the report to be verified by the oath of the president or secretary. In the present case the affidavit of the president is attached, stating that the report “is in all respects true to the best of his knowledge and belief.” The plaintiff claims that the affidavit should have boon positive, and not qualified by the phrase “ to the best of his knowledge and belief.” The statute does not expressly require a positive affidavit; and, indeed, it gives no form whatever. The word “ verified” by no means implies, in all cases, an unqualified affidavit. Pleadings are “verified ; ” although the affidavit is in part on information and belief. It may be impossible for the president to swear positively to the amount of debts ; because it is easy to conceive that other officers of the company may have contracted debts for which the company is liable, and of which ho is ignorant. The verification was in proper form.

III. It is objected that the statement does not show the amount of existing debts. The language of the statement is: “ The amount of its existing debts does not exceed $75,000.” The object of the statute in requiring these statements is to exhibit to 'the public the pecuniary condition of the company, in order that the public may know how far it is safe to deal with it. It might be difficult to compute to the very cent the exact amount of indebtedness, with accrued interest, owing at the date of the report. It is a reasonable compliance with the statute to show that the indebtedness does not exceed a certain amount. (Whitney Arms Co. v. Barlow, 63 N. Y., 66.)

IY. A further objection is made that the statement does not state what proportion of the capital stock has been paid in, or how much was issued for money, or how much for property. The defendant claims that this defect is not averred in the complaint. But the complaint sets out the whole statement in full, and avers that it is not in compliance with the statute. Whether it is, or is not, is a question of law, not of fact. In the case of McHarg v. Eastman (4 Robt., 635), on which the defendant relies, it does not appear that the complaint set out the statement. The contrary would appear from the opinion. We think, therefore, that the plaintiff may raise this point to sustain his complaint.

The statement in this particular is in these words: “Amount of capital stock, of which all but five shares were issued for the purchase of property necessary for the business of the association, and such five shares have been paid in full, $150,000.” The detect alleged is, that this does not show what proportion of the capital stock has been paid in, nor what has been issued for property. (Sess. Laws, 1853, ch. 333, § 2.) It seems to us that, in this respect, the statement is radically defective. One cannot discover, or conjecture, from that statement how much money has been paid in; because no indication is given of the par value of the shares. If the shares are five dollars each, then the company has twenty-five dollars paid in. If the shares are $5,000 each, then the company has $25,000 paid in. And, therefore, the amount issued for property is eritirely uncertain. The defendant has no right to urge that this uncertainty might be cleared up by an examination of the certificate of incorporation on file. That certificate formed no part of the published statement.

Nor is the defendant aided by the decision in Whitney Arms Co. v. Barlow (ut supra). There the court held that, notwithstanding a grammatical criticism, the fair meaning was that the. capital was $300,000, and that the whole of that amount had been issued for the purchase of property. But, in this present case, no possible grammatical construction of the statement will inform the reader “the proportion actually paid in,” or the amount of stock issued for property. If the statement had also given the total number of shares, or the par value of a share, or the amount of cash paid in, in either case, the matter would have been clear. But, as it is, we think the statement was defective in a material respect.

The opinion of the learned justice who decided the case below discusses only the three points first above mentioned. And in regard to these, we agree with his conclusions. He says nothing on this last point, on which alone we reverse the judgment.

The judgment appealed from must be reversed and judgment given for the plaintiff on the demurrer, with costs ; with leave, however, to defendant to answer within twenty days after service of a copy of this judgment, upon payment of costs on the demurrer in the court below, and also on this appeal.

Present — Learned, P. J.; BoardmaN and Bocees, JJ.

Ordered accordingly.


text:
    OLIVER CAMP, Appellant, v. NATHAN P. CAMP and others, Respondents.

      Advancements — when not to he deducted from a legacy to a child.

    A testator, by his will, directed his executor to sell all his estate, both real and personal, and divide the proceeds thereof equally among' his ten children, naming them. Prior to his death, the testator had advanced various sums of money to several of his children, taking from them papers acknowledging the receipt of the different sums “as a part of my apportionment of his estate,’ “ to be deducted out of the estate of the said,” etc.

      Held, that as the will did not direct these advances to be charged against the several children, they were not to be considered in dividing the estate.
    Appeal from a decree of the surrogate of the county of Tioga, entered on the final settlement of the accounts of the executors of the estate of Sylvester Camp, deceased.
    Sylvester Camp, at divers times during his lifetime, made advances, differing in amount, to his ten children, and at the time of making them took receipts for the amount advanced in one of the two following forms :

      “Received, Campville, May 27, 1867, of Sylvester Camp, five hundred dollars, as a part of my apportionment, to be deducted out of the estate of the said Sylvester Camp.
    “ OLIVER CAMP.”
    “ Or received of Sylvester Camp five hundred dollars, as a part of my apportionment of his estate.
    “OLIVER CAMP.”
    By his will he directed his executors to sell all his estate, both real and personal, and divide the proceeds equally among his ten children, naming them.
    The surrogate held that the advances made to each child should be deducted from his share under the will.

      Charles JS. Parker, for the appellant.

      George Sidney Camp, for the respondents.
   Per Curiam:

It is not disputed that, if the testator, by his will, had given specific legacies to his children, or had divided his property unequally among them, the prior advancements in question could not have been charged against their shares or legacies. The question is whether we have a right to assume, without any express statement to that effect in the will, that the testator intended that these advancements should be charged, merely from the fact that he divided his property equally. We think that we should not be justified in making this assumption.

If the deceased had made no will, then these advancements would have been charged to the respective parties. Why, then, did he make a will dividing his property equally, unless it were to prevent that very result ? He know that he had made unequal advancements, and he had carefully taken receipts. Thus, he had provided that, if he should die intestate, these advancements would be charged to the parties on the distribution of his estate. But he was clearly at liberty to change his intention in that respect, if such had been his intention. And the way to effect such change was to make a will, dividing the property, of which he should be the owner at his death, equally among his children. This be did. If be bad intended that tbe advancements should be charged against bis children, he would have said this in bis will.

Of course, we may conjecture that be desired an equal division, including tbe advancements. And, on tbe other band, we may conjecture that be desired an equal division, excluding tbe advancements. The' only safe course is to take what be said'in bis will as bis meaning, and to make no conjectures whatever. He said that bis property — that is, the property which be owned at his death — should be divided equally.

These advancements were no part of bis property ; and, therefore, do not come into account in tbe division.

Tbe decree of tbe surrogate must be modified in accordance with these views, and neither party should have costs of tbe appeal.

Present — Learned, P. J.; BoakdmaN and Follett, JJ.

Decree reversed and distribution to be made according to tbe terms of tbe will, without reference to tbe advancements.


author: Per Curiam :

text:
    NELSON BOWLSBY, as Overseer of the Poor, etc. Appellant, v. MARIA TOMPKINS, ELI A. DUNHAM AND HERMAN E. DUNHAM, Respondents, Impleaded with JOHN CHAPMAN.

      Action by overseer of the poor — what disposition of his property by the father of a lundtie is lawful.

      A father conveyed certain land to Ms daughter, she agreeing, as part of the consideration for the conveyance, to support and provide with medical attendance a son who was insane. Subsequently, the daughter reconveyed the property to the father, and he again conveyed it to her by a deed containing no clause by which the support of the son was charged upon her.
    In an action, by the overseer of the poor of the town, to set aside this conveyance as fraudulent, as being intended to impose upon the town the burden of supporting the son, held, that the action could not be maintained.
    Appeal from a judgment dismissing the complaint, entered upon tbe trial of this action by tbe court without a jury.

      The action was brought by the plaintiff, as overseer of the poor of the town of Catherine, to set aside certain conveyances as fraudulent. The defendant John B. Chapman, on December 13, 1873, conveyed to his daughter, Maria Tompkins, certain land, the deed providing that “as a part of the consideration of this conveyance the second party hereby agrees to live upon said premises, and there maintain, care for and support the first party in a kind and suitable living in food, clothing, washing, mending and lodging, so long as he shall live, and also, in like manner, care for and support, in a good and comfortable living and clothing, the son of the first party Chauncey B. Chapman, so long as he shall live ; and tó provide both with medical attendance in sickness, during their lives and the survivor of them.”
    “ A failure to perform these stipulations, on the part-of the second party, shall work a forfeiture of this conveyance, and, in that event, revert to the first party ; and the support of my son, Chauncey B. Chapman, if ho should survive me, is charged upon the premises herein described, during his life.”
    The.son Chauncey was, and had been from his infancy, hopelessly insane, and entirely unable to support himself. In 1876, the'daughter applied to have the son sent to an insane asylum, but the application was refused unless she would pay his support there. Thereafter she voluntarily conveyed the premises, by a quit-claim deed, to her father, who simultaneously reconveyed them to her by a warranty deed, which omitted the clause by which she agreed to support her father and. brother. This action was brought to set aside these conveyances as fraudulent.

      M. M. Mead, for the appellant.

      O. P. Hurd, for the respondents.
   Per Curiam :

We clo not see that the plaintiff has any standing in court to maintain this action. He seeks equitable relief in setting aside alleged fraudulent conveyances. But the plaintiff is not a creditor by judgment, nor even by simple contract. Nor has he obtained by any proceedings an adjudication establishing any liability to him, in bis official capacity or otherwise, of the alleged fraudulent grantor, or of any person. Until he shall have established such legal liability, and shall have been unable to enforce it, from, inability to find property of the alleged fraudulent grantor, he will not be in a situation to attack a conveyance as fraudulent in respect to him.

Whether he can, by any proceedings, obtain the rights of a judgment creditor so as to be entitled to maintain this action we need not decide.

The judgment must be affirmed, with costs.

Present — Leaeked, BoaedmaN and Follett, JJ.

Judgment affirmed, with costs.


text:
    IN THE MATTER OF THE PETITION OF CHARLES E. PATTERSON, Receiver, etc., of the MERCHANTS AND MECHANICS’ BANK OF TROY.

      Section 48 of chap. 37 of 1875 — deposit by savings bank — what is entitled to priority as.

    A savings bank entered into an agreement with four other banka by which it agreed, subject to the provisions and limitations of the laws of the State of New York inspecting deposits in banks and trust companies, to deposit one-fourth of all moneys received by it with each of said banks, as therein provided ; each bank agreeing to pay interest on daily balances at the rate of four per cent per annum; and at the end of the three years, during which the contract was to run, to pay over to the savings bank all money belonging to it, and also to pay, at sight, any checks or drafts drawn, upon it. Each of the four banks also agreed not to receive, from any other person or corporation, deposits of any sum less than ¡¡51,000, and allow interest thereon.

      Held, that money paid by the savings bank to one of the said banks, in pursuance of the said agreement, was a deposit within the meaning of section 48 of chapter 37 of 1875, and entitled to the priority given thereby.
    Appeal from an order made at Special Term, directing the receiver of the Merchants and Mechanics’ Bank of Troy, an insolvent banking corporation, to pay over to the Troy Savings Bank the sum of $67,642.54, being the amount of a deposit made by the said savings bank with the Merchants and Mechanics’ Bank, and held by the latter at the time of the appointment of the receiver.

      ■ Ou December 31, 1877, the savings bank entered into an agreement with the Merchants and Mechanics’ Bank to deposit with it, subject to the provisions and limitations of the laws of the State of New York respecting deposits in banks and trust companies, one-fourth part of all moneys deposited with it during the next three yeai’s, the other three-fourths to be deposited in three other banks therein named. It being agreed that the deposits in the four banks should be kept as nearly equal as possible. The bank agreed to pay four per cent on the daily balances, and to pay over, at the expiration of the three years, all sums of money belonging to the savings bank. It also agreed to pay at sight all checks or drafts of the savings bank, and that it would not, during the existence of the agreement, receive on deposit or as a loan from any other person or corporation any sum less than $1,000, and pay or agree to allow interest thereon. The bank having failed the savings bank applied to have the amount it then had deposited with it paid to it, in preference to all other claims, as provided by section 48 of chapter 37 of 1875.

      Moses Warren, for the Receiver.

      Mselc Oowen, for The Troy Savings Bank.

      James Forsyth and Nathaniel O. Moah, for James Forsyth and other depositors.
   Learned, P. J. :

A deposit was originally a thing delivered to a person for gratuitous safe keeping; and it remained the property of the owner. The word, however, is now used to designate a certain kind of loan. For money, deposited in the ordinary way, becomes the property of the bank or banker ; and the deposit is a debt.

When we attempt to state what kind of loans are properly called deposits, we find that, to some extent, the original meaning of the word colors its present meaning. For there is an idea in the mind that money on deposit is lying in the bank, on hand, ready to meet the demand of the owner, and that it is kept there for his convenience.

While it is difficult to make an accurate definition of a deposit, which shall distinguish it from every other loan, yet there are many particulars by which it may be described. And generally we may say that it is a loan to a bank or banker ; that it is made for the convenience of the lender (or depositor), in his business ; that it is variable in amount from time to time ; that it is subject to be demanded at any time and in any amount; that it is evidenced only by entries on a pass-book, and on the books of the bank ; that it is paid out upon checks of the depositor, to be paid at once, on presentation, without notice.

A savings bank must necessarily keep a considerable amount of money on hand, to meet sudden calls and emergencies. The '■statute has indicated that ten per cent of its deposits is not an unreasonable amount. If that seems large, we must notice that, when the statute was passed, there was not in existence the great amount of United States securities which we now have, and in which investments can now bo made, convertible at once into cash. The Troy Savings Bank had very large deposits, and it Was a wise course, therefore, to divide up, among several banks, the money to be thus kept on hand. And, to prevent favoritism and jealousy among these banks, it was well to apportion this money equally and to arrange a regular mode of distribution. That was what was done in the present case. The agreements between the Troy Savings Bank on the one side, and the Merchants and Mechanics’ Bank, and the three other banks, on the other, simply provide for an equal distribution among the four hanks of the deposits to be made by the Troy Savings Bank. There was nothing illegal on the part of the Troy Savings Bank in its obtaining interest on these moneys. And if the four banks were severally to pay interest, it is plain that they might reasonably insist on a ratable division of these moneys among them.

Nor does it change the character of these moneys that the Merchants and Mechanics’ Bank agreed not to pay to others interest on small deposits ; that is, not to carry on a savings bank business. It was wise and proper that they should never pay such interest; and an agreement not to do, what good banking forbade, can do no harm.

The contract does not agree on any definite time, for which" the money is to remain on deposit. It is payable at any time on the checks of the Troy Savings Bank. The agreement that, at the end of the three years, the Merchants and Mechanics’ Bank would pay to the Troy Savings Bank any of the moneys then on hand is what the law would have implied without an agreement. It docs not postpone the liability of the Merchants and Mechanics’ Bank. The moneys are spoken of as deposits, and they have all the characteristics of deposits. They are the moneys needed for the business of the depositor; they are deposited, from time to time, as its business brings them in, and they are to be drawn out in like manner and upon checks as business requires; they are evidenced by entries on a pass-book and on the books of the Merchants and Mechanics’ Bank, and the arrangement is for tht convenience of the Troy Savings Bank in its business. The fact that interest is to be paid on them, however unwise on the part of the Merchants and Mechanics’ Bank, does not change their character or prevent them from being deposits in the ordinary meaning of that word, (Upton v. N. Y. and Erie Bk., 13 Hun, 269.) The transaction is wholly unlike that which was examined in the case of Rosenback v. Manuf. and Build. Bk. (69 N. Y., 358).

If these moneys were deposits, within the meaning of the statute, then the Troy Savings Bank is entitled to its preference. If it should be admitted that the amount thus kept on deposit at some time was more than ought, under the statute, to have remained uninvested, that would not affect the present question. The savings bank may, by such act, have forfeited its charter ; but that is a question for the State, and does not relieve the Merchants and Mechanics’ Bank from paying its debts ; nor its receiver from paying them in the order prescribed by law.

It is not disputed that the deposits of the Troy Savings Bank, at the time of the failure, were less than twenty-five per cent of the capital of the Merchants and Mechanics’ Bank. The whole amount, therefore, of these deposits is entitled to a preference. No question has been made here as to the rate of interest allowed on this balance of deposit, in the order appealed from. The order must be affirmed, with ten dollars costs and printing disbursements against the api^ellants.

Present — LearNEd, P. J., BoaudjiaN and Follett, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


author: Boardman, J.;

text:
    JAMES McGIBBON AND JAMES McGIBBON, Jr., Respondents, v. WILLIAM SCHLESSINGER AND ADOLPHUS SCHLESSINGER, Appellants.

      A venden’ may resell, without notifying the vendee in default, of the time and place of the resale — • The resale need not he made at the place of delivery designated, in the contract.

    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.
    The action was brought to recover damages occasioned by the refusal of the defendants to receive and pay for eleven bales of hops, purchased by them, to be delivered at Malone.
    On February ninth, the plaintiffs notified the defendants that the hops were at the depot at Malone, ready for delivery, and that, if the defendants did not comply with the terms of the contract before February fifteenth, the hops would be sold on their account. Subsequently, the hops were shipped to New York and sold, without notifying the defendants of the time and place of sale. The court, at General Term, said:
    “It was not necessary for the plaintiffs to give the defendants notice of the time and place where the property would be sold on defendants’ account. Upon the refusal of the defendants to accept, the plaintiffs became the agents of the defendants to sell the property, so that the loss might be as small as possible. Notice of intention to sell, in case the contract is not performed, is all that the law requires. (Dustan v. Me Andrew, 44 N. Y., 72; Lewis v. Oreider, 49 Barb., 606; aff’d, 51N. Y., 231; Pollen v. Le Roy, 30 N. Y., 549.)
    “Nor was it necessary that the place of sale should be the place of delivery. (Lewis v. Ordder, supra.) The case of McJHackron v. Bundles (34 Barb., 301), holding a different doctrine, is not sustained by the authority cited [Sands v. Taylor, 5 Johns. B., 395), and is directly overruled by Pollen v. Le Boy (30 N. Y., 558), so far as it sustains appellants’ views.”

      Beman & Brennan, for the appellants. W. P. Oantwell, for the respondents.
   Opinion by

Boardman, J.;

LearNed, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


author: per Learned, P. J.

text:
    CLINTON ALLEN, Respondent, v. RUFUS WELCH, Appellant.

      ‘Statute of champerty — 1 B. S., 739, § 147 — not applicable to eases of disputed bomdary lines.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order made at Special Term, dening a motion for a new trial on a case and exceptions.
    This was an action of ejectment to recover a narrow strip of land west of a highway and east of a brook. Both parties claimed under one Bobinson, the common source of title, who owned land on both sides of the brook, in all seventy-six acres, which included the disputed strip. In 1848 he conveyed the east half of the seventy-six acres bounding the land conveyed, westerly, by the “ centre of said brook.” The plaintiff has this title by mesne conveyances, with the same description. In 1850 Bobinson mortgaged the west part of the seventy-six acres bounding the mortgaged land easterly by the highway. The mortgage was foreclosed, and the defendant by mesne conveyances has this title. There was some evidence on the trial that the brook had, at some time, changed its place, and that it was now farther west than it had been in some past time, and it was claimed that at one time the brook was within the limits of the highway. The jury found for the plaintiff.

      The court, at General Term, said : “It is further urged (and this is the principal point of the defendant’s argument) that the ¡plaintiff should have been nonsuited, on the ground that at the time of the delivery of several of the conveyances under which the plaintiff claims, the defendant was in possession of the premises in question. The statute provides that every grant of land shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to the grantor. (1 E. S. [in. p.], 739, §§ 147, 167.) * * *
    “Again, the statute above cited was intended to prevent champ-erty, and the purchasing of titles from parties out of possession. It should not be unnecessarily extended in its effect. The present case is merely one of disputed boundaries. The plaintiff’s grantor, and all from whom he took title, were in possession of the land which they sold ; except that, as the defendant claims, there was a dispute where the westboundary line ran. Now, it is plain that such a case is not within the evil at which the statute was aimed. Assuming that the defendant was in possession of the disputed strip, shall it be said that the deed to the plaintiff was void altogether, or even to the extent to which the defendant encroached ? Would it be a reasonable construction to say that if one of two adjoining neighbors entered upon and took possession of a strip of land between two disputed boundaries, the other could not make a valid sale of his farm until the end of a litigation of ejectment and the removal of the intruder ? I think not. This view is sustained by the case of Ovary v. Goodman (12 N. Y., 266), and is favored by the doctrine in Corning v. Troy I. and FT. F. (40 N. Y., 204). The exception .of judicial sales from the operation of the statute shows that courts look to the intent rather than the words. (Stevens v. Hanser (39 N. Y,, 306.)
    It is true that the boundary between the two pieces of property is not described in the same manner in the two sets of conveyances. Still, the fact remains unquestionable that the question was simply one of a boundary; each party admitting that the other was owner up to the line, wherever it might be, which lawfully divided them; and, for this reason, I think that the statute of champerty did not apply.”

      Charles A. Ciarle,, for the appellant. Charles D. Nixon, for the respondent.
   Opinion

per Learned, P. J.

Present — LearNed, P. J., Bocees and BoardmaN, JJ.

Judgment and order affirmed, with costs.


text:
    LOUISA SEVERN, Respondent, v. THE NATIONAL STATE BANK OF TROY, Appellant.

      Code, § 399 — when the testimony of a 'party as to a personal transaction with a. deceased person, is not incompetent wider.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover money standing to the credit of the plaintiff on the books of the defendant,- which they refused to pay. The complaint set up, in substance, that one Joseph Wright had had an amount of money on deposit with the defendants ; that said Wright gave the. plaintiff a written order for the amount, together with his bank book ; that the plaintiff went to the bank, delivered the order and book, and had the amount transferred to her name, and received a bank book therefor ; that she afterwards demanded the money, presenting the book, but the defendants retained the book and refused to pay the money.
    The answer, in substance, averred that, after such transfer to the plaintiff, further information came to the defendants which removed the belief that the order, purporting to be that of Joseph Wright, was such, and that the defendants, therefore, retained the book; and it denies any other deposit, except by such order and book.
    On the trial, the plaintiff, called on her own behalf, was proceeding to testify to personal transactions with said Joseph Wright, deceased, when the defendants objected under section 399 of the Code of Procedure, and offered to show, at the same time, that the administrators and heirs of Joseph Wright had indemnified the defendants against this claim. The offer was excluded and the objection overruled.
    The court, at General Term, said : “It is not claimed by the defendants that the evidence objected to and admitted comes within the literal language of the section. But they insist that it is within the spirit. That is, they insist that the action was practically against the administrators of Joseph Wright, although such administrators were not parties defendant.
    “ The case of Lobdell v. Lobdell (36 N. Y., 327) shows that it is not enough that a case be within the spirit, it must be within the letter, of this statute. And a similar view has been taken in other cases.

      “ The claim of the plaintiff is simply against the bank for money alleged to be deposited with the bank by her. Against the bank she could prove any material facts, although they consisted in personal transactions with Wright. For the bank was not executor, etc., or assignee, legatee, etc., of Wright. It would, then, not be just that the administrator of Wright, by voluntarily indemnifying the bank against the plaintiff’s claim, should prevent her from giving testimony, otherwise competent. * * *
    “It is not necessary to inquire here whether the defendants could have brought a bill of interpleader; or whether they could have availed themselves of the provisions of Code, section 122. If they had done this the question as to this evidence might have been in a different shape.”

      D. A. Boies, for the respondent. M. Fairchild, for the appellant.
   Opinion

per Learned, P. J.

Present — Leaeeed, P. J., Bocees and BoaedmaN, JJ.

Judgment and order affirmed, with costs.


author: per Bockes, J.

text:
    JACOB DAVIS, Plaintiff, v. THE LAMAR INSURANCE COMPANY OF NEW YORK, Defendant.

      Insurance company — who is an agent of .

    MotioN for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    The action was upon a policy of insurance, and the defence was that the policy was avoided by reason of the premises being unoccupied. It was claimed that one Hulbut was an agent of the defendant, and that he knew the premises were unoccupied at the time the policy was issued. With reference to his agency the court at General Term said:
    “ It may be assumed that the jury found, as they well might have found on the evidence submitted to them, that Hulbut, who solicited and accepted the risk, had power to bind the company and waive the conditions of the policy. On this branch of the case it seems to come within the decision in Bodine v. Exchange F. Ins. Co. (51 N. Y., 117), followed and applied in Van Bchoiclc v. Niagara F. Bis. Co. (68 N. Y., 434). On the facts the case in hand is much like the Van Schoick case last cited. There, as the facts are compactly stated in the syllabus, application for the policy was made to Lewis, who was engaged in the insurance business in partnership with Doolittle j the latter was the commissioned and nominal agent of the company ; as to the plaintiff Lewis acted as agent, with the assent of Doolittle, which action was known to the company and not disproved of. It was held that the company was bound by the acts and knowledge of Lewis. The decision was put upon the principle recognized in the Bodine Case, which was this: That an insurance agent could employ a clerk, and authorize him to contract for risks, to deliver policies and renewals, to collect premiums and to give credits therefor; and that the act of the clerk in such cases was to be deemed the act of the agent, and binding on the company. Now, in the case in hand, Clay was the commissioned agent of the company, solicited risks for it and issued its policies. He employed Hulbut in that busi. ness, and gave him part of the earnings of the business; permitted him' to put his name on the bills ; employed him as solicitor to obtain risks and to make surveys, and to collect premiums and deliver policies; there was an arrangement between them by which they divided the proceeds of the business. Hulbut fixed rate¡s and Clay accepted of his acts, and adopted his judgment. Hulbut had also been introduced by Clay to the special agent of the company as a man engaged in the business with him; and it also appeared that the officers of the company had visited the agency, and that they knew of the manner in which the business was there conducted. In this case, as he had done in others, Hulbut made the contract of insurance, received the premium and delivered the policy. The case is quite as strong on the facts as was either Bodine’s or Van Schoick’s case ; and on this point, too, it is within the decision in Ghase v. People's F. Ins. Go. (21 N. Y. Sup. Ct. [14 Hun], 456). The jury were, therefore, well authorized to find that Hulbut was an agent of the company by whose action and knowledge the latter would be bound.”

      Lounsbery & G Mlds, for the plaintiff. Charles A. Fowler, for the defendant.
   Opinion

per Bockes, J.

Learned, P. J., and Boardman, J., concurred.

Motion for new trial denied, and judgment ordered for plaintiff on verdict.


author: Hardin, J.:

text:
    JACOB GINTHER AND ISAAC A. WILE as Assignees, etc., Respondents, v. HENRY E. RICHMOND, Appellant.

      General assignment — power therein to the assignee to compromise claims does not vitiate it.

    A general assignment is not vitiated by the insertion of a clause therein, authorizing the assignees “ to compromise or compound any claim by taking a part for the whole, where they shall deem it expedient so to do.”
    Appeal by the defendant from an order denying a motion for a new trial, made on the minutes of the judge at the Monroe circuit, after a verdict for the plaintiff.
    The only questions involved arise from the assignment made to the plaintiffs, for the benefit of creditors, by Ginther and Oakley. The plaintiffs claimed to recover from the defendant, as sheriff, property which came to them in virtue of such assignment, and the acceptance by the plaintiffs of the trusts reposed in them. The assignment was in the following words :
    GEORGE C. GINTHER and CHARLES J. OAKLEY JACOB GINTHER and ISAAC A. WILE. General Assignment.

    This indenture, made this 29th day of July, 1878, between George C. Ginther and Charles J. Oaldey, constituting the firm of “Ginther & Oakley” of Rochester, New York, of the first part, and Jacob Ginther of Buffalo, New York, and Isaac A.. Wile of said Rochester, of the second part, witnesseth :
    Whereas, the parties of first part are indebted to various parties and firms in divers sums of money, which they are unable to pay in full,
    Now, therefore, in consideration of the premises and of the sum of one dollar to them paid by the parties of the second part, they, the said parties of the first part, do hereby sell, assign and transfer, unto the parties of the second part, all and singular the goods, chattels, property and dioses in action of every name and nature, except such property as may be exempt by law from execution, whether owned by them jointly as a firm or by each of them individually.
    To hold the same unto the said parties of the second part, upon the trusts following, viz. :
    First. To pay the costs and charges of those presents, and the expense of executing the trusts hereby declared.
    Second. To distribute and pay the remainder of said property, and the proceeds of all sales thereof, unto and equally between all the creditors of the parties of the first part, provided, however, that if there is not sufficient funds for payment of all debts of parties of first part in full, then said debts are to be paid pro rata, or in propor-'¡ion to their respective amounts, without distinction or preference.
    The rest and residue (if any there be), after paying all said costs and debts as aforesaid, shall be paid over to parties of the first part.
    The parties of the second part are hereby empowered to sell all or any part of said property, and to receive and collect all accounts and choses in action due to parties of first part, with the right to compromise or compound any claim by taking a part for the whole, where they shall deem it expedient so to do.
    In witness whereof the parties of the first part have hereunto set their hands and seals the day and year first above written.
    [l. s.] GEORGE C. GINTHER,
    CHARLES J. OAKLEY.
    We hereby accept the above trust reposed in us.
    Dated this 29th day of July, 1878.
    JACOB GINTHER, ISAAC A. WILE.

      D. B. Beach, for the appellant.

      Wile <& Wile, for the respondents,
   Hardin, J.:

The assignees are given the right “ to compromise or compound any claim by taking a part for the whole, when they shall deem it expedient so to do.” It must be conceded that this clause confers a power and discretion upon the assignees to compromise debts in the discretion of the assignees. Docs this authorize or require in express terms an illegal act to be done ? If it does not it cannot be held to invalidate the assignment. (Benedict v. Huntington, 32 N. Y., 219; Townsend v. Stearns, 32 id., 209.) Certainly the assignees are not “required” to compromise any claim. They are only given a discretion “to compromise or compound, * * * where they shall deem it expedient so to do.” This discretion could be exercised as to doubtful debts, and if so exercised it would be just what assignees would, like other trustees, be authorized to do by law.

The act of 1877, section 23, chapter 466, and amendment of 1878, chapter 318, contains a provision authorizing the county court, “on such terms as it may direct,” to “ authorize the assignee to compromise or compound any claim or debt belonging to the estate of the debtor.” *■ * * The use of the words “ any claim” cannot reasonably be interpreted to authorize the court to give power to the assignees to compromise a good debt against a perfectly solvent debtor. Yet, such a construction of the words of the statute would be just as reasonable as the like construction of the words of the assignment before us. It is a well-settled rule of construction that such interpretation should bo given to an instrument or statute as would make it consistent with innocence, and the general rules of law, in preference to one which would impute a fraudulent intent to the grantor, or defeat the general purpose and spirit of the law. (Rapalee v. Stewart, 27 N. Y., 315.) The doctrine of Lord Coice, as stated by Porter, J., in Townsend v. Stearns (supra), is applicable. Coke says: “ Whensover the words of a deed or of the parties without deed may have a double intendment, and one standeth with law and right, aud tbe other is wrongful and against law, the intendment that standeth with law shall he taken.” The 23d section of the act of 1877 also contains a provision that any authority given by the county court to compromise “shall not prevent any party interested in the trust estate from showing, upon the final accounting of such assignee, that such debt or claim was fraudulently or negligently compromised.” This provision enables us to see that the authority to compromise, derived from the county court, is not conclusive in any case. This is made clear by this further provision of the section, to wit: “And the assignee shall be charged with, and he liable for, as part of the trust fund, any sum which might or ought to have been collected by him.”

This language is broad enough to establish the liability for any loss occasioned by an improper use of the authority derived from the statute, or even of the assignment, if such assignee should by its use occasion a loss to the “ trust fund ” of “ any sum which might or ought to have been collected by him.” Thus, we see that the assignee has not power, under the assignment or under the statute, to compromise any “debt or claim” in such cases as would “fraudulently or negligently” occasion loss to the trust fund.

We may, therefore, assume that the 23d section of the act of 1877 is cumulative without so deciding in this case. We may conclude that tile provision quoted from the assignment does not require us to impute a fraudulent purpose on the part of the assignors, and that it does not appear “ that the clause in question is in plain violation of the law.” (Porter, J., 32 N. Y., 215; Matter of Nicholas, 15 Hun, 317.)

It is next insisted that ‘1 the assignment is void, because it nowhere directly authorizes, empowers or requires the assignees to convert all the assigned property into money to pay debts.” The words authorizing a sale of “all or any part of said property” are proper words to vest in the assignees power to sell all, if needed to pay debts ; to sell part only, if that will pay the debts. Surely if part would pay the debts in full, no creditor could have anj > interest in having the whole sold.

The language of the entire instrument being construed, we find, first, a transfer of the debtor’s property; second, a trust created; third, for the purpose of paying debts ; fourth, full power given to soli any or all of the property to fully execute the trust reposed in the assignees. There is no intent evinced to have the assignees set up a discretion which would hinder or delay the creditors. The words of the assignment do not justify us m imputing to the assignors any such intent. We are referred to the case of Rapalee v. Stewart (27 N. Y., 310), but it has no application to this assignment. There the language was “ to be converted into cash, or otherwise disposed of to the best advantage/' by the assignees, and it was very properly held that the intent was to authorize the assignees to sell on credit, and the assignment was held void. No such purpose to hinder or delay creditors appears from the terms of the assignment before us.

The assignees, by accepting the trust, became obligated to carry it out, and the obvious purpose of the assignors was to authorize a sale of so much of their property as would produce proceeds sufficient to pay their debts in full, or to sell the whole and pay pro rata all of the proceeds thereof. The duty was clearly imposed by the terms of the assignment; The 11th section of the act of 1877 would, enable any creditor to call the assignees to account and to enforce the execution of the trust.

We must, therefore, conclude that the assignment upon its face was not fraudulent and void. The order should be affirmed.

Talcott, P. J., and Smith, J., concurred,

Order affirmed.


author: HardiN, J.:

text:
    HARRIET C. WIDRIG, Appellant, v. PHILIP FINSTER, Respondent, Impleaded with MARY FRANK and others.

      Devise — gift over to survivors on death of first taker without issue — construction of.

    A testator devised to his three children Theobald, John and Jacob, “ and unto their respective heirs and assigns forever, all my (his) farm * * * to be equally divided among them or their heirs (quantity and quality considered) 5 and in case either of my said sons should die without issue, that then, and in such case, his share shall be equally divided amongst the survivor or survivors, or his or their heirs.” John died first, leaving children; Jacob second, without issue.

      Held, that Theobald was entitled to the whole of Jacob’s share, and that the children of John had no interest therein.
    Appeal from a judgment of the court at Special Term, sustaining the demurrer of the respondent to the amended complaint. In 1815 Jacob Oyer, the appellant’s grandfather, died seized of a certain farm, which he devised by his will in these words : “I give and bequeath unto my three sons, namely, Theobald, John and Jacob, and unto their respective heirs and assigns forever, all my farm whereon I now live, in the town of Schuyler, * * * to be equally divided amongst them or their heirs (quantity and quality considered) ; and in case either of my said sous should die without issue, that then and in such case his share shall be equally divided amongst the survivor or survivors, or his or their heirs.”
    John Oyer died first leaving issue, the appellant and others.
    Jacob Oyer next died, without issue. Theobald, now called David Oyer, and his grantees, thereupon, claimed the whole of Jacob’s third. The plaintiff, as one of the heirs of John Oyer, claimed under him to be entitled to a portion of Jacob’s third. The only question involved in this appeal is as to the proper construction of the clause in the said will above quoted.
    The complaint was dismissed at Special Term, and judgment wras entered, in Herkimer county, to that effect.

      JjJ. D. JSTorthruj?, for the appellant.

      /Samuel JEarl, for the respondent.
   HardiN, J.:

When Jacob Oyer died in 1872, without ever haying had any children, the share of the farm which he took under his father’s will went by the terms of the will to the survivor Theobald (David). The words, “ that then and in such case his share shall be equally divided amongst the survivor or survivors, or his or their heirs,” limit the estate to the “survivor” of “said sons” named by the testator. (Miller v. Emans, 19 N. Y., 384; Guernsey v. Guernsey, 36 id., 267; Striker v. Mott, 28 id., 90; Smith v. Scholtz, 68 id., 58; Redfield on Wills, 756; Jackson v. Blanshan, 3 Johns., 292; Lovett v. Buloid, 3 Barb. Chy., 137.) The will was prepared in 1815, and the words, “ or his or their heirs,” were inserted as words of inheritance. The intention of the testator, obviously, was to devise his real estate to his three sons, for each to enjoy, in his lifetime, one-third thereof, and to provide that the one-third go to the issue of the body of the parent, if any such issue survived, and in case of the death of any son without issue of his body, that his share should go to the remaining son, or sons.

The death of the son in 1872, without issue, had the effect to pass the estate to his brother, the son of the testator referred to by the word survivor. The reason given by the court below for its judgment accords with our views. The judgment must be affirmed, with costs.

Talcott, P. J.. and Smith, J., concurred.

Judgment affirmed, with costs.