text:
    Charles Deutermann et al. v. Samuel H. Gainsborg et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Appeal—Review—Inferences prom Documents.
    The appellate division of the supreme court will not reverse the decision •of a trial court board on inferences from written documents, unless it affirmatively appears that the court erred in the decision.
    Appeal from special term.
    Action by Charles Deutermann and others, as executors, etc., against Samuel H. Gainsborg and another, to restrain the defendant Gainsborg from emptying sand into a pond, etc. From a judgment on finding for defendant, plaintiffs appeal.
    Eugene Frayer, for appellants.
    Wilson Brown, Jr., for respondents.
   CULLEN, J.

The plaintiffs, claiming to own a mill dam, mill seat, and mill pond, including the lands under the water of the pond, brought this action to restrain the defendant Gainsborg, the owner of land abutting the pond, from emptying sand, muck, or obnoxious matter into the pond, and to recover damages. The defendant answered, denying title in the plaintiffs to the easterly half -of the lands under the lake or pond, and also denying that the defendant had interfered with the plaintiffs’ water rights or privileges. The defendant prayed for an affirmative judgment establishing the boundary line between his lands and the plaintiffs’ lands under the waters of the pond; and also determining the plaintiffs’ water rights and privileges in in the pond. On the trial the claim for -damages was withdrawn, and the sole question litigated between the parties was the title of the defendant to the lands under the water of the easterly half of the pond. The title of the plaintiffs to mill dam and sites, and to the use of the water of the pond for milling purposes, was conceded. The court decided the issue litigated between the parties in faver of the defendant holding that the plaintiffs had not established their title to the lands in dispute. On this appeal the parties raise no other question than that thus litigated and determined in the trial court.

It seems to be the settled rule of a law in this state that, in the •-case of streams, ponds, or lakes, the adjoining proprietors are prima facie and presumptively the owners of the soil under water to the center of the stream or pond, as in the case with highways. This presumption may be rebutted, but, till rebutted, the presumption remains. Child v. Starr, 4 Hill, 369; Nostrand v. Durland, 21 Barb. 478; Smith v. City of Rochester, 92 N. Y. 463; Gouverneur v. Ice Co., 134 N. Y, 355, 47 S. R. 601. In the present case the title of the defendant Gainsborg to the abutting upland is not attacked. Therefore he is presumptively the owner of the adjacent land under water to the center of the pond, and it is incumbent upon the plaintiffs to establish affirmatively a superior title in themselves. This they have attempted to do by a series of deeds placed in evidence. The trial court found that these deeds did not establish the plaintiffs’ title to the land in dispute, and it is the dispute, and it is the correctness of this decision that we are now called upon to review.

The original source of the title to the premises in dispute is a grant from the crown, made March 13,1721, to several named persons; of a tract of over 4,000 acres. Neither of the parties have been able to trace their title back to the grantees in that patent. The first deed produced by the plaintiffs is from Daniel Brundeg to Eleazer Yeomans, and bears date December 28, 1730. It conveys “one certain corn mill, and all belonging unto it, standing near the upper end of the White Plains purchase, & all the land beginning," etc. The description in this deed gives no course or distances, refers to no known road or highway, or to any monuments except marked trees and saplings. It would seem to include one-half of a mill pond from the fact that one line in the description runs along “ the long Mid-do w brook till it comes to the said mouth of the ditch that leads from the mill,” but there is nothing to show which side of the mill pond is included. It is wholly impossible to now locate that mill pond from the description, and so the trial court found. The next conveyance, dated February 23 1739, from Walter Williams to Eleazer Yeomans, conveys a tract of 80 acres, bounded east by the Mamaroneck river, and westerly by the brook in the mill pond, northerly by David Purdy’s land and Yeomans’ own land, and southerly by Yeomans’ own land and David Cornwell’s land and Caleb Hyatt’s land. The next deed is from Jacob Cornell to said Yeomans, dated March 1, 1741. It conveys a tract of land at Brown’s Point, being the equal half of a lot that formerly belonged to Caleb Hyatt and John Haight. The description reads: •“ Beginning at a maple tree by the mill dam, thence running southerly by the mill brook to a butternut staddle, thence running easterly by the land of Daniel Cornell,” etc. The trial court found that the deed from Williams to Yeomans embraced a portion of the lands of the defendant, and that the brook in the mill pond, mentioned as its westerly boundary, was the brook in the pond here in dispute. Of course, this is in fact a matter solely of argument from the internal evidence of the deeds themselves, the character of the descriptions, and the names of the adjacent owners mentioned in the deeds. The defendant complains of this finding, but we think that it is correct, for the subsequent deed from ■Cornwell to Horton, hereafter to be mentioned, which is concededly a link in the defendant’s chain of title, by its description would seem to convey the same tract as that conveyed from Williams to Yeomans. We think it probable that the deed from Williams to conveyed a tract immediately south of it, and that the only land that Yeomans had between these two plots was the mill dam itself. On May 3, 1744, Yeomans coneyed to John Horton “ one certain house and barn and come mill and tract of land situate, lying, and being in the White Plains and Harrison’s purchase, butted and bounded as follows : Beginning at a cheri tree-standing near the house, from thence westerly to a heap of stone,” etc. ' The description in this conveyance, like that from Brundeg to Yeomans, sGates no distance. The courses are given in the most general manner, either as northerly or southerly, and the monuments are such as cannot now be located, being marked trees and heaps of stones. Wherever the mill pond conveyed by this deed was, the description would seem to include the whole of it, as it run up on one side and down on the other. The contention of the plaintiffs is that this deed conveys the locus in quo, to which they claim they have shotvn title in Yeomans by the deeds before referred to. The trial court found that this deed did not convey the bed of the pond, and that the lands and property described in it could not be located or identified'as the premises of the plaintiffs or the bed of present lake. The plaintiffs claim through this deed to Horton. There is no pretense that subsequent to the time of this conveyance Horton or his successors in title have acquired the bed of the lake from the abutting owners on its easterly side. We think also it is clear that there was no such possession of the locus in quo by the parties on either side of this litigation or their predecessors in title as would either establish a title by adverse possession or be sufficient to justify the presumption of a* grant. Hence the question as to what lands were embraced in this conveyance is the vital point in plaintiffs’ case. The question, .however, is one solely of fact, and, while it is a question of fact not arising from conflicting statements of witnesses, but from inferences from written documents, we think the same rule applies to it's determination by the trial court as applies to other questions of fact; that is to say, this division of the court is not justify in reversing the determination of the trial court unless it affirmatively appears that the trial court clearly erred in its decision. Aldridge v. Aldridge, 120 N. Y. 614, 31 S. R. 948; Barnard v. Gantz, 140 N. Y. 249 55 S. R. 541.

Before proceeding to discuss what lands are included in the deed to Horton, we shall examine the title of the grantor, Yeomans. Assuming that the tract conveyed by Williams to Yeomans is the tract afterwards conveyed to Elisha Horton on the easterly side of the pond, and adjoining the dam, we think it is plain that no title has been shown in Yeomans to any land on the east side of the lake, north of Williams’ north line. No deed of any such lands has been produced. The only evidence given by the plaintiffs to support this claim is the statement in the deed from Williams that his plot was bounded northerly by David Purdy’s land and said Yeoman’s own land. We doubt if this declaration in the plaintiff’s own chain of title is evidence in their favor, but it is unquestionably evidence against them that land to the north of Williams was at the time of his conveyance owned by Purdy. It appears that on October 6, 1752, Purdy conveyed his tract to Michael Chatterton. By the description in that deed the westerly boundary is given as follows: “Thence westerly to a stake near the-large white oak tree by the above said mill pond; thence running southerly along said mill pond to the rock where it first began.’’ This description would include the adjacent half of the pond if the grantor owned it. From the description and character of the tracts conveyed by Williams and Cornell, it would seem probable that this part of the lands granted by the original patent was laid out in'strip from the Mamaroneck river, running westerly to the brook which forms the pond. If this were the fact, Purdy must have owned to the center of the brook, and there is nothing to show that he ever parted with it to Yeomans. Therefore the plaintiffs have shown no title north of the dividing line between Williams and Purdy.

We will now return to the question whether the deed to Horton conveyed or assumed to convey the pond in dispute. The evidence and argument in favor of the affirmative of this proposition is substantially as follows: The deed conveyed a mill pond. If the Williams tract was part of the premises now owned by the defendant, it would establish at the time of its conveyance to Yeomans, in 1739, there was a mill pond on the site of the present pond, for the west boundary of that tract as given by the deed is “ the brook in the mill pond.” So, also, in the deed from Cornell to Yeomans, of 1741, the description reads; “Beginning at a maple tree by the mill dam,” thus confirming the statement in the Williams deed of the existence of a mill pond. On March 30, 1748,—less than four years after the conveyance from Yeomans to Horton,—one Daniel Cornwell conveyed to Elisha Horton a tract -of 69 acres, conceded!y part of the land now owned by the defendant. Part of the description in this deed reads; “.Beginning at the northeast corner of John Horton’s mill dam at a white oak bush, running eastwardly,” etc. This shows that at the time of this deed there was not only a pond on the site of the present lake, but also that that pond was John Horton’s. There is no evidence that John Horton ever acquired any other mill pond than by the conveyance from Yeomans, though it does appear that there were several mill ponds in the vicinity, one of them but a short distance from the pond in suit, and flowing into the latter. This, it is claimed, establishes that the pond conveyed to Yeomans to Horton must have been this pond. On the other hand, as tending to rebut the claim of the identity of the pond in the Horton deed with that in suit, we have, first, the description of the deed. It is doubtful whether that can be reconciled with any description of of the present pond. Commencing below the mill dam, the description carries the boundary, in terms, up to and so as to include a lot bought by Yeomans from Jonathan Lane as it was then laid-out. The deed from Jonathan Lane to Yeomans, dated February 9, 1740, conveyed a tract containing four acres, bounded westerly by the highway running through the hills, northerly by the lot of Henry Disbrow, easterly by the Yeomans mill brook, and southerly by the heirs of Lynch. It appears that the road through the hills, and the stream which feeds this pond, do not come in sufficient proximity to enable a lot of four acres to be laid out in any' reasonable shape, until at a distance of a mile or more from the pond. It is practically impossible or improbable to the last degree that the premises granted by this deed could have extended any such distance, for the area of land granted was but 60 acres. The present pond contains 47 acres. So, if this is the pond described, it would leave but 13 acres of upland to pass under the deed. The deed fails to make any reference to the road and highway which passed over the dam. This road is one of the oldest in the county, being the main road from White Plains to Bedford, and, as appears-by recitals in other conveyances, must have been laid out at an earlier period. It certainly was in existence four years later, for in the deed from Cornwell to Horton, already mentioned, the description twice refers to it. The land conveyed by the deed from Yeoman is in part bounded by the land of David ogden- It cannot be found, by the records, that a David Ogden at any time owned land in this vicinity.

It is also urged, as tending to disprove the claim that the Williams tract was located on this pond, that, if so located, it is the same tract subsequently conveyed by Cornwall to Horton, nine years after the conveyance from Williams to Yeomans, yet no conveyance from Williams to Cornwall is to be found. It is claimed that this tends to disprove the identity of the two tracts; and, the proper location of the Cornwall tract being conceded, it tends to show that the Williams tract should be located in some other place. Such, in brief, are the argument on each side. If I were compelled to answer, as in historical question, whether the deed to Horton conveyed this pond or not, and not suffered to plead insufficient knowledge, I would say that it did, though I am strongly of opinion that, if such were the case, the pond, as it then existed, must have been much smaller than the present one. But I am not prepared to say that the contrary conclusion arrived at by the trial court was clearly erroneous.

Farther, I am of opinion that, while the facts recited may show that the balance of the probabilities are in favor of the proposition, still it may be doubted whether they are sufficient, as legal evidence, to establish it. Therefore I think we *e not justified in disturbing the finding of the trial court.

As already stated, the questions reviewed in themselves dispose of this deed adversely to the plaintiffs. It is, therefore, not necessary to discuss the other questions in the case. We think the testimony of Loretta Horton was improperly admitted, but, in our view of the case, it works no harm to the plaintiffs.

The judgment appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: FOLLETT, J.

license: Public Domain

text:
    Simon E. Rose v. George E. Chadwick et al.

    (Supreme Court, Appellate Division, Fourth Department,
    October 16, 1896,)
    Corporations—Liability on directors—Failure to pile annual reports.
    A creditor of a corporation may recover his debt of the directors on their failing to file annual reports, as required by Laws 1893, c. 688 (Stock Corporation Law) § 80, without prior recovery of judgment against the corporation, and return of execution unsatisfied.

      Appeal from trial term.
    Action by Simon E. Rose against George W. Chadwick and another. From a judgment dismissing the complaint, plaintiff appeals.
    T. H. Ferris, for appellant.
    H. D. Pitcher, for respondents.
   FOLLETT, J.

This action was brought by a creditor of the Chadwick Leather Company, a business corporation organized, under the laws of this state, against the directors thereof, to recover his debt of them, on the ground that they had failed to file annual reports in January, 1894, and in January, 1895, as required by the thirtieth section of the stock corporation law. Two of the defendants answered, and admitted that the reports had not been filed, and alleged that the claim of the plaintiff had been fully paid. When the case was for trial, the complaint was dismissed, on the-ground that it was not alleged therein that the plaintiff had recovered a judgment for the debt against the corporation, and an execution thereon had been returned unsatisfied. This was error. The recovery of a judgment and the return of an execution are-not conditions precedent to the right of a creditor to recover from the directors of the corporation for failing to file reports. Miller v. White, 50 N. Y. 137-141; Rorke v. Thomas, 56 id. 559-565; Green v. Easton, 74 Hun, 329, 55 S. R. 859; Bank v. Andrews, 2 Misc. Rep. 394, 51 S. R. 123; Strauss v. Trotter, 6 Misc. Rep. 77, 55 S. R. 489.

Bank v. Dillingham, 147 N. Y. 603, 42 N. E. 338, arose under tlie twenty-fourth section of the stock corporation law, imposing a liability upon directors for creating an indebtedness not secured by mortgage in excess of the amount of its paid-up capital stock, and is not in point.

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

All concur.


text:
    Caroline Eyring v. Hercules Land Company et al.

    (Supreme Court, Appellate Division, Fourth Department,
    October 16, 1896)
    1. 'Mortgage—Foreclosure—Failure to answer—Notice oe reference
    to compute amount dub.
    Where defendant, having appeared in an action to foreclose, is served with notice of motion for judgment on failure to answer, but fails to appear at the hearing, failure to give him notice of hearing before the referee then appointed to compute the amount due on the mortgage is not ground for opening the judgment,
    2. Same—Order oe subjecting mortgaged property—Notice.
    Where two of four lots covered by a mortgage are conveyed subject thereto, the grantee covenanting and agreeing to pay it, reference to such conveyance iu a deed of the same two lots by that grantee, which does not. itself refer to the mortgage, gives notice to the second grantee that those -lots are primarily liable for the payment of the mortgage.

      3. Same—Release of part of mortgaged property — Conveyance of
    REMAINDER SUBJECT TO MORTGAGE.
    That at the time two of four lots covered by a mortgage were conveyed by the mortgagor by deed declaring them subject thereto, and containing a covenant of the grantee to pay the same, the mortgagee received the amount of the mortgage for releasing the other two lots, does not affect j.the liability of the lots conveyed for the mortgage, provided the parties in . interest then agreed that the mortgage should continue a security thereoo.
    Appeal from Brie county court.
    Action by Caroline Eyring against the Hercules Land Company, impleaded. From an order vacating a judgment of foreclosure, plaintiff appeals.
    Charles H. Ribbel, for appellant.
    Clinton B. Gibbs, for respondents.
   FOLLETT, J.

—None of the defendants m the action appeared except the Hercules Land Company, the owner of the fee of lots 67 and 72, which appeared, but did not answer. After the time to answer had expired, the plaintiff moved for judgment, and served on the attorney of the land company a notice of motion. The land company failed to appear, and the court appointed a referee to compute the amount due on the mortgage; and on the filing of his report, which was done the next day, granted the usual judgment of foreclosure. The land company insists that the judgment was irregular, because notice of the hearing before the referee was not given. Computing the amount due on the mortgage was but an incident to the application for judgment, and the compulation might have been made by the court, or it might, as it did, appoint a referee for the purpose. The plaintiff’s practice was regular, and the land company was not entitled to have the judgment opened on the ground that notice of the hearing before the referee was not given. The mortgage, when given, covered lots 59, 60, and 72. Three years afterwards, on the 3d day of August, 1887, the mortgage conveyed lots 67 and 72 to Frank L. Anderson. The affidavit of the plantiff's attorney states that the conveyance was made subject to the lien of the mortgage, which the grantee convenanted and agreed to pay. This fact is not disputed by the defendants’ affidavits. By this transaction lots 67 and 72 became primarily liable for the payment of the mortgage, and lots 59 and 60 were secondarily liable. July 2, 1888, Frank L. Anderson conveyed, by a deed recorded J uly 23, 1888, lots 67 and 72 to Charles P. Brandel, subject to the mortgage, the grantee conveuanting to pay the amount due thereon. July 11, 1890, Charles P. Brandel, by a deed recorded July 10, 1890, eonved lots 67 and 72 to Fletcher Barron, subject to the mortgages, all of which the grantee convenanted to pay before January 1, 1891. April 15, lo92, Fletcher Barron conveyed lots 67 and 72 to the Hercules Land Company by a deed recorded April 18, 1882. The grantee in this deed did not convenant to pay the mortgage, and here is no reference thereto in the deed, but reference is expressly made in the deed to the conveyance from Brandel to- Barron. By this reference the land company had notice that by agreement between the parties in interest lots 67 and 72 were primarily liable for the payment of the mortgage, and it is not in a position to assert the rule that in mortgage cases the land mortgaged is to be sold in the inverse order of alienation. It is nowhere asserted in the record that lots 67 and 72 have been released from the lien of the mortgage, except as the result of the rule last referree to. It is asserted in the moving affidavits that when the mortgagor conveyed to Anderson the mortgage received $1,100, which was the amount of the mortgage, for the release of lots 59 and 60; but there is no assertion that lots 67 and 72 were released. It is entirely immaterial what considertaion the mortgage received for the release of lots 69 and 70, provided the parties in interest then agreed that the mortgage should remain a continuing security on lots 67 and 72.

The order appealed from should be reversed, with $10 costs.

All concur.


text:
    Martha A. Sinclair v. Harrison Fuller et al.

    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.
    1. Corporations—Directors—Liability to Corporation Creditors.
    Under Laws 1892, c. 688 (Stock Corporation Law), § 20, providing, “if a director shall cease to be a shareholder, his office shall be vacant ’’; and section 48, declaring that a transfer of stock by a shareholder in contemplation of the insolvency of the corporation shall be void, and that a director violating a provision of the section shall be liable to creditors of the corporation for “ any loss they may sustain by such violation ”; and section 30, declaring directors, in case an annual report is not made, “ liable for all the debts of the corporation then existing, and for all contracted before such report shall be made,”—a director making an absolute trausfer of his shares, though with the belief that the corporation is insolvent and will ultimately fail, but without reference to any particular liability thereafter to be incurred, ceases to be a director, or liable as such to one becoming a creditor of the corporation after a new certificate is issued to the transferee; especially where such creditor knows at the time of the transfer.
    3. Same—Transfer of Stock—Contemplation of Insolvency.
    Laws 1892, c. 688 (Stock Corporation Law), § 48, declares that “ no corporation which shall have refused to pay any of its * * * obligations * * * when due, * * * nor any of its officers * * * shall transfer any of its property * * * upon any other consideration than the full value of the property paid in chash. No conveyance * * * of any property of any such corporation by it * * ® when the corporation is insolvent or its insolvency is imminent,' with the intent of given a preference * * * shall he valid. ® * * No stockholder of any such corporation shall make any transfer * * * of his stock therein to any person in contemplation of its insolvency.” Held, that “any such corporation,” transfer of stock in which by a stockholder is prohibited, does not refer alone to a corporation which has refused to pay an obligation, but that transfer of stock in any corporation in contemplation of insolvency is prohibited.
    Appeal from circuit court.
    Action by Martha A. Sinclair against Harrison Fuller, impleaded. From a judgment for plaintiff, defendant Fuller appeals.

      Daniel G. Griffin, for appellant.
    John Lansing, for respondent.
   FOLLETT, J.

October 16, 1888, the Adams Furniture & Manufacturing Company, Limited, was incorporated under chapter 611 of the Laws of 1875, and the acts amendatory thereof and supplementary thereto, for the purposeof manufacturing and selling furniture, having its office and principal place of business at the village of Adams, N. Y. It started with a capital stock of $20,-000, divided, into shares of $100 each. November 14, 1890, its stock was increased to $30,000, and April 19; 1892, to $40,000, divided into 400 shares of $100 each, at which sum it remained until the corporation became insolvent, in February, 1895. The appellant was a stockholder, a director, and the vice president of the corporation from its organization until December 27, 1893, at which date he held 52£ shares under certificate No. 41, and 20-shares under certificate No 53, December 27, 1893, he sold all his shares (72^-) to John Sinclair, in consideration of one dollar, and assigned and delivered his certificates to the purchaser. September 19, 1894, John Sinclair surrendered the certificates so assigned to him to the corporation, and received a new certificate for the shares. John Sinclair was a stockholder, a director, the secretary, the treasurer, and the general manager of the corporation during its entire existence. The plaintiff is the wife of John Sinclair, and Decmber 21, 1894, she loand to the corporation $5,-530, for which she received its note, payable on demand, with interest, which was signed, “ Adams Furniture.& Manufacturing Oo., Lim., per John Sinclair, Secy, and Treas.” The note was not paid, and March 27, 1895, she duly recovered a judgment thereon in the supreme court for $5,636,91, damages and costs, which was duly docketed in the office of the clerk of the county of Jefferson, in which county the corporation bad its principal office ; and on the same day an execution was issued to the sheriff of that county, who, Macrh 28, 1895, returned it wholly unsatisfied. The directors of the corporation failed to make and file annual reports of its affairs in January of the years 1892, 1893, 1894, and 1895, as required by section 30 of chapter 688 of the Laws of 1892; and March 20,1895, this action was begun against all the directors, to recover the amount of the judgment, because of their failure to make and file such reports. On the triala judgment was recoveree against all the directors for the amount claimed, from which the defendant Harrison Fuller has alono appealed. The foregoing fact are not disputed.

The following is a copy of the material parts of section 30 of chapter 688 of the Laws of 1892, under which it is sought to hold the appelant liable for the debt due the plaintiff:

“Every stock corporation, except moneyed and railroad’corporations, shall annually, during the month of January, * * * make a report as of the first dayjpf January, which shall state : (1) The amount of its capital stock and the proportion actually issued. (2) The amount of its debts or an amount which they do not then exceed. (3) The amount of its assets oran amount which its assets at least equal. * * * If such report is not so made and filed, all the directors of the corporation shall jointly and severally be personally liable for all the debts o£ the corporation then existing, and'for all contracted before such report shall be made.” 2 Rev. St. ( 9th Ed. ) 1013.

This section has remained unchanged since 1892, and a like report was required and the same liability imposed for a failure to file one was provided for by section 18 of chapter 611 of the Laws 1875, as amended by chapter 208 of the Laws of 1881, under which the corporation was organized.

It was held (Quarry Co. v. Bliss, 27 N. Y. 207), that only the directors of a manufacturing corporation who were such when the debt was contracted were liable therefor for failing to comply with the twelfth section of the manufacturing act, which provided that “all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made.” Vincent v. Sands 33 N. Y. Super. Ct. 511, affirmed 58 N. Y. 673 ; Thomp. Corp. §4209. _ '

_ The sole question involved in this case is whether the appellant was a director December 21, 1894, when the plaintiff made the loan which she now seeks to recover. The appellant contended in the court below, and now contends, that he ceased to be a director on the 27th of December, 1893, when he sold and assigned all his shares to John Sinclair ; and that, in any event, he ceased to be a director on the 19th of September, 1894, when John Sinclair surrendered the certificates for such shares. It will be remembered that the debt due the plaintiff was contracted a year, lacking six days, after the appellant assigned his shares, and more than three months after the certificates for the shares formerly held by him were surrendered to the corporation, and a new certificate issued to Sinclair. In support of the position that he had ceased to be a director, the appellant cites the twentieth section of chapter 688 of the Laws of 1892 (Stock Corporation Law), which provides that, “ if a director shall cease to be a shareholder, his office shall be vacant." In Bank v. Colwell, 132 N. Y. 250, 30 N. E. 644, which case arose under the act under which this corporation was organized, it was held that,, when a director ceased to be a shareholder, his directorship was at an end, ana he was not liable for subsequently incurred debts of the corporation.

In answer to the appellant’s position, the respondent insists that the appellant remained a director of the corporation until it became insolvent, because, as she asserts, the transfer of the appellant’s shares to John Sinclair was absolutely void, under section 48 of the stock corporation law, which provides :

“ Sec. 48 Prohibited Transfers to Officers or Stockholders. FTo corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its pro-petty to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. Fo conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. No stockholder of any such corporation shall make any transfer or assignment of his slock therein to any person in contemplation of its insolvency. Every transfer or assignment or other act done in violation of the foregoing provisions oj this section shall he void. * * * Every director or officer of a corporation who shall violate or be concerned in violating any provision of this section, shall be personally liable to the creditors and stockholders of the corporation of which he shall be director or an officer to the full extent of any loss they may respectively sustain by such violation.”

The italicized paragraph is new, first becoming a part of the statutes of this state in 1890 (section 48, c. 564, Laws 1890), and was amplified and enacted as above given by chapter 688 of the Laws of 1892. It is urged by the learned counsel for the appellant that the italicized paragraph of the above section has no application to this case, because it does not appear that at the time of the transfer the corporation had failed to pay any of its notes or obligations, and that the term “ such corporation ” does not embrace stock corporations generally, but only those which have failed to pay their legal obligations. The second paragraph of the section forbids “such corporations ” to make preferential assignments or transfers of its property, and the term “such corporation ” as there used embraces all insolvent stock corporations, whether they have or have not failed to pay their obligations. Harris v. Thompson, 12 Barb. 62, arose over the validity of a general assignment for the benefit of creditors, without preferences, executed by a manufacturing corporation. It was conceded that the assignment was made in contemplation of insolvency, and that the corporation had not “ refused the payment of any of its notes or other evidences of debts.” It was contended on the part of those contesting the validity of the assignment that it was void, under section 4, tit. 4, art. 2, c. 18, pt. 1, Rev. St., which provided:

“ Sec. 4. Whenever any incoroorated company shall have refused the payment of any of its notes, or other evidences of debt-in specie, or lawful money of the United States, it shall not be lawful for such company, or any of its officers, to assign or transfer any of its property or choses in action of such company, to any officer or stockholder of such company, directly or indirectly for the payment of any debt; and it shall not be lawful to malee any transfer or assignment in contemplation of the insolvency of such company, to any person or persons whatever; and every such transfer or assignment to such officer, stockholder or other person, or in trust for them or their benefit, shall be utterly void. * * *”

It was contended in behalf of the corporation that the term “such company,” in the last paragraph above quoted, referred to one which had refused the payment of its notes or other evidences of debt, and did not embrace corporations generally; but it was held that the .second clause was not confined in its application to assignments by corporations which had refused the payment of any of their notes or other evidences of debt, but that it applied to all corporations makinS assignments in contemplation of insolvency. This case was cited and approved in Robinson v. Batik, 21 N. Y. 406, and in Sibell v. Remsen, 33 id. 95; Burrill, Assignm. (5th ed.) § 65. It sometimes happens that a term is used in a different sense in different paragraphs of a section of a statute, but not often, - and it will not be presumed that it was so used unless it clearly appears that such was the intention of the legislature.

I am of the opinion that a transfer by a shareholder of his shares in a corporation in contemplatian of its insolvency is within the italicized paragraph, and void as to persons injured thereby. But the question arises, void as to whom? Certainly not, in the absence of fraud, as between the transferror and the transforree, nor as against the corporation assenting to the transfer. The purpose of the paragraph is to prevent solvent shareholders from escaping their statutory liability to those who are creditors of corporations when the transfers are made, and their contractual liability to corporations not assenting to the transfer. There is no statute or rule of laws which prevents a director from resigning his office at any time; and if he does so, not covertly, but openly, he ceases to be liable to the future creditors of the corporation for the omission of the directors to make and file thereafter annual reports. The paragraph of the section under consideration, literally construed, would avoid a sale .of shares made by a stockholder at par to a responsible purchaser, if at the time it was made the vendor believed that the corporation was insolvent and would ultimately fail.

It is urged that the trial court has found that the appellant believed December 27, 1893, when he assigned these shares, that the corporation was then embarrassed and must ultimately fail, and that he made it for the purpose of relieving himself of future liability as a director. I think these facts were well found. But I am of the opinion that if a director assigns his shares to another, with or without consideration, and a new certificate is issued to the transferee, the transferror ceases to be a director, even though he asserts at the time of the transfer that he believes the corporation to be insolvent and will ultimately fail. If such a transfer be made, without reference to any particular liability thereafter to be incurred, and without retaining any interest in the shares, the transferror ceases to be a director, and is not liable for the subsequently innurred debts of the corporation. I am speaking of a case in which the transfer of shares is absolute, the transferror retaining no interest in them, and there being no understanding that they are held for his benefit, or are ever to be restored to him. In the case at bar it is not pretended that the transfer was not an absolute one. The transfevree is the husband of the plaintiff, and was the ' witness called to make out her case, and there is no hint in his testimony that the appellant retained any interest in or control over the shares which were assigned in trust, or that the appellant re-, tained any legal or equitable interest in them.

The shares held by the appellant were Fully paid up shares, and, indeed, it is not asserted that all the stock of this corporation had not been paid in full. It is undoubtedly the rule that in case a shareholder, in contemplation of the insolvency of a corporation in respect to which he is under some liability as a shareholder, under section 54 of the stock corporation law, or as in the case of national and state banks, or in case his stock has not been fully paid for, assigns his shares toan irresponsible, person, for the purpose of escaping liability, he remains liable to the then-existing creditors of the corporation. Many cases 'may be cited in support of this proposition, of which the following are types: Nathan v. Whitlock, 3 Edw. Ch. 215, affirmed 9 Paige, 151; Davis v. Stevens, 17 Blatchf. 259, Fed. Cas. No. 3,653; Bank v. Magill, 5 Conn. 28; Bowden v. Johnson, 107 U. S. 251, 2 Sup. Ct. 246. But in none of the cases cited or found is it held that in case fully paid up shares in a corporation engaged in carrying on its business—“a going concern ”—are transferred out and out, by a duly registered' sale, to an irresponsible person, the transferror is liable to the future creditors of the corporation. The rule is otherwise when' the transfer is merely colorable with a secret trust attached in favor., of the transferror. Cook, Stock & S. (3d ed.) 263 et seq., and cases cited. It is not the rule that a person once a stockholder in' an1 unsuccessful corporation is always a stockholder. Corporations actually insolvent, like individuals who are insolvent, are often able to conceal their real condition, and to continue business for years. If a registered sale of shares by a holder believing the corporation to be solvent is void under the statute as to a creditor whose debt arises three months after the sale, I see no reason why . a registered sale would not be void as to creditors whose debts ac-, crued three or more years after such sale. . :

By the fifty-fourth section of the stock corporation law it is provided :

“The stockholders of every stock corporation shall jointly and severally be personally liable to its creditors to an amount equal to the amount of the stock held by them respectively for every debt of the corporation, until the whole amount of its capital stock issued and outstanding at the time such debt was incurred shall have been fully paid. The stockholders of every stock corporation shall jointly and severally be personally liable for all debts due and owing to any of its laborers, servants or employes other than contractors for services performed by them for snch ©orpora,tion.” 2 Rev. St. (9th ed.) 1025. i

Suppose a stockholder in an insolvent corporation, the stock of ■which has been fully paid in “in contemplation of its insolvency,’’ gives his shares to a man of straw and the transfer is duly registered, and the corporation continues in business, and pays every debt existing at the date of transfer, and subsequently incurs debts to laborers; could it be successfully contended that the transfer would be void as to laborers subsequently employed, and that the transferrer would be liable for such debts ? It seems to me not. Fully paid up shaves are transferable, and the holder of such shares (though he be a director), who has lost faith in the management and future success of a corporation which is engaged in business, may sell them to whosoever will buy, and for such a price as he can get; and, if the transfer is absolute and registered, he ceases to be a director, and is not liable to the future creditors of the corporation, and the transfer is not void as to them. 3 Thomp. Corp. § 3235 et seq.; Thomp. Liab. Stockh. § 210 et seq.; Cook, Stock & S. (3d ed.) § 254 et seq.; Mor. Priv. Corp. (2d ed.) § 166; Lindl. Partn. (3d ed.) 721, 1431, et seq.

But on another ground we think this plaintiff was not entitled to recover. She was not defrauded by the transfer. She was pr. s nt when her husband took the assignment of the certificates, knew the consideration paid, and took part in the conversation. Her loan to the corporation, made through her husband, was with full knowledge that the appellant had transferred all his shares to her husband, and was made more than three months after the tae transfer had been entered on the books of the corporation, and a certificate for the shares issued to the transferee.

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

All concur.


author: BARRETT, J.

text:
    David M. Koehler et al. v. New York El. R. Co. et al.

    (Supreme Court, Appellate Division, First Department,
    October 23, 1896.)
    Elevated Railroad—Injury to Abutters—Waiver oe Compensation.
    A request by a property owner for a favorable decision by the commissioners appointed to determine the propriety of the proposed route of-an elevated railroad in the street on which liis property abuts is not an abandonment of his easements in the street, or cession of them to the railroad company, and therefore does not affect liis right to compensation for such easements. White v. Railroad Co., 34 IST. E. 887, 139 N. Y. 19, distinguished.
    Appeal from special term, New York coryrty.
    Action by David M. Koehler and Morris Goldstein against the New York Elevated Railroad Company and the Manhattan Railway Company for an injuction and damages by reason of the construction and operation of defendant’s elevated railroad in front of plaintiffs’ premises, No. 520 Third avenue, in the city of New York. There was a judgment in favor of plaintiffs, and defendants appeal.

      Edward C. James, for appellants.
    William G. Peckham,„for respondents.
   BARRETT, J.

—The sole question here is as to the legal effect of a paper signed by the plaintiffs’ predecessor in the title, and ad-' dressed to certain commissioners appointed by the general term of the supreme court, requesting these commissioners to determine that the defendants’ road ought to be constructed and operated on route previously designed by the rapid-transit commissioner appointed under chapter 606 of the Laws of 1875. That route included the line of the elevated railway in front of the plaintiffs’ premises. The defendants claim that, by his signature to this request, the ploiutiffs’ 'predecessor, Hasher, abandoned his easements appurtenant to the premises in question, and that, consequently, the plaintiffs’ complaint should have been dismissed. The commissioners to whom the request was addressed were appointed because of,the failure of the company to secure the consjnt of one-half in value of the abutting owners upon the streets to be occupied by the railroad. The constitution required that, in lieu of said consents, the company should secure the determination of commissioners to be appointed by the general term of the supreme court, approving the construction of the railroad, and the confirmation of such approval by the general term. It is not claimed that Hasher gave his consent, either before or after the appointment of these commissioners, the erection and operation of the railroad; nor is it claimed that he ever had any direct dealings with the company upon the subject. The defendants’ contention is that the request addressed to the commissioners was equivalent to a direct consent that the road, be built, and that thus an abandonment of the easements was effected, within the rule laid down in White v. Railway Co., 139 N. Y. 19, 54 S. R. 409. The request, was as follows:

“Hew York, February-, 1876.
“To the Hon. O. H. Palmer, E. Z. Laurence, Esq., and E. P. Wheeler, Esq., 'Commissioners, etc. : The undersigned, owners or occupants of property on the line of the Hew York Elevated Railroad, as designated by the rapid transit commissioners appointed under chapter 606 of the Laws of Hew York for the year 1875, understanding that the said road is to be constructed over the center of the street or avenue in Third and Eighth avenues, and on such other portions of said line as it is practicable so to construct said road, earnestly request your honorable body to determine that such road ought to be constructed and operated on the route so designated. ”

We think there is a marked distinction between this request and the formal consent given directly to the - company in the White .Case. What Hasher requested was merely a determination by the commissioners favorable to the construction and operation of the railroad; that is, of course, to its lawful construction and operation. But how could there be lawful construction and operation without just compensation for property rights to be thereupon taken ? The request did not contemplate an abandonment of Nasher’s easements, nor imply a cession thereof to the company. It contemplated nothing more than-construction and operation, with due regard to other people’s rights, including, naturally, the signer’s. There is not the vaguest suggestion of a waiver of compensation for the easements, or of any other legal right. Further, the request was not a contract or engagement with the company. The commissioners were not its agents, nor did they represent it in any such sense as the appellants content. The commissioners were public officers, appointed by the court to act independently, and to furnish the court with their judgment upon a given question. The request was simply an appeal to that judgment. It amounted, in fact, to but little more than an expression of opinion as to the wisdom and propriety of the proposed construction.

The claim of abandonment founded upon this paper, thus addressed to these commissioners, and upon the further fact that neither Hasher nor any other of the plaintiffs’ predecessors in title has chosen" to bring an action in vindication of their clear legal rights, is, in our judgment, far-fetched and without merit. The same conclusion applies to the suggestion that the company relied and acted upon the request, either in fact or law, as an abandonment of Hasher’s easement’s or as a consent to their destruction without just compensation.

The judgment appealed from should therefore be affirmed, with costs.

All concur.


author: LAWRENCE, J.

text:
    Henry B. Barnes v. George Meyer et al.

    (Supreme Court, Special Term, New York County.
    April, 1896.)
    1. Costs—Extra allowance—Foreclosure of mortgage.
    A leasehold is not real estate, within Code Civ. Proc. § 3258, subd. 1, providing for an extra allowance in an action to foreclose a mortgage on realty.
    2. Same—Case where defense is interposed.
    The fact that a defense has been interposed in an aetion, so as to authorize an extra allowance (Code Civ. Proc. § 3253, subd. 2), must appear as a condition precedent.
    Action by Henry B. Barnes against George Meyer and others to foreclose a mortgage on a leasehold estate. Plaintiff moves for an extra allowance.
    Jay & Candler, for the motion.
   LAWRENCE, J.

—This action w^as brought for the foreclosure of a mortgage upon leasehold property, and, upon the presentation, of the judgment of foreclosure and sale, application was made for an allowance. The defendants raised no objection to the judgment of foreclosure, but opposed the allowance on the ground that it was held by the general term of this department in the case of Huntington v. Moore, 59 Hun, 351, 36 S. B. 541, that in an action brought for foreclosure of a mortgage upon a leasehold estate for 21 years with conditions for renewal, reserving a rent certain, an additional allowance of costs in a proper case can be made to the extent of 5 per cent, upon the amount involved ; but that the phrase “ real property, ” in section 3253 of the Code of Civil Procedure, does not include leasehold estates so as to bring an action for the foreclosure of a mortgage thereon within subdivision 1 of that section. That subdivision limits the allowance in an action to foreclose a mortgage to a sum not exceeding 2i- per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of $200. I had granted in this case an allowance of $200 in the first instance, and the matter comes before me upon a motion for a reargument. I am satisfied,.under the case cited, that an allowance cannot be granted under subdivision 1 of section 3253 of the Code of Civil Procedure. See, also, Despard v. Churchill, 53 N. Y. 192. The question, therefore, remains whether an allowance of 5 per cent, can be granted under subdivision 2 of the section. The defendants’ counsel claims that it cannot, for the reason that no defense has been interposed herein, and that such fact must appear as a precedent condition to the right of the plaintiff to an allowance. This position seems to be well taken, and, as the leasehold property has been held not to be within subdivision 1 of the section in question, and not to be real property, I am reluctantly obliged to decline the application for an allowance.

Ordered accordingly.


author: BRADLEY, J.

text:
    Philip Wood v. Orlando M. Harper et al.

    (Supreme Court, Appellate Division, Second Department.
    Oct. 10, 1896.)
    Mortgages—Lien—Inverse order op alienation.
    The rule that land will be subjected to a mortgage in the inverse order of alienation does not apply where a purchaser retained the amount of the mortgage from the purchase money, and took his deed subject by its terms to the mortgage.
    Appeal from special term, Kings County.
    Action by Philip Wood against Orlando M. Harper and another to foreclose a mortgage. There was a judgment in favor of .plaintiff, and defendants appeal.
    George P. Gordel, for appellants;. John H. Stoutenburgh, for respondent.
   BRADLEY, J.

—The purpose of the action was the foreclosure of a mortgage made by Charles McCaffrey to Hewlett Scudder upon about 170 acres of land in the County of Suffolk, •of which land 42 acres were afterwards conveyed by McCaffrey to the defendant, Orlando M. Harper. The relief sought and by the judgment obtained in the action was to charge such 42 acres primarily with the lien of the mortgage. The question presented by the issue, and upon this review, is whether the defendants’ land is chargeable with such burden. It seems that McCaffrey had title to the entire premises, as trustee for •one Blanchard, who was president of the Corn Exchange Bag Company, which company was indebted to the male defendant, Harper, in the sum of $4,200 or more. An understanding was had between him and McCaffrey, with the assent of Blanchard, to the effect that Harper would purchase 42 acres of the land at the price of $4,500, subject to a mortgage of $3,200 held by the Riverhead Savings Bank. It was contemplated by the arrangement that McCaffrey would pay to the bag company $4,200 of the consideration money paid by Harper, and that thereupon the latter would receive the same amount from that company on the debt due from it to him. This, consummated, would, in practical effect, result in payment of the consideration by satisfying to that extent the debt owing to him by the bag company, which may have been some inducement on his part in making the purchase. When the parties met to make' and take the conveyance, attention was called to the Scudder mortgage, on which there was then unpaid $1,000. These facts, and the further fact, as claimed by the defendants, that McCaffrey then promised to procure a release of the Scudder mortgage, may, for the purpose of the questions arising upon this review, be assumed. By reason of the existence •of the lien of that mortgage, Harper, instead of paying the .amount before mentioned, paid only $3,500, and took conveyanee of the 42 acres, expressly, by the terms of the deed, subject to such mortgage. His check for that sum was handed to McCaffrey, who endorsed and delivered it to the bag company through ífianchard, who, as president of the company, indorsed and delivered it to Harper. The Scudder mortgage, with accompanying bond, was afterward assigned by Scudder to Mrs. Cook, and by her to the plaintiff, who executed a release from its lien of all the land except that conveyed to Harper. Mc-Caffrey conveyed to Mrs. Cook the land so relieved of the lien "of the mortgage, and assigned to the plaintiff the claim for the unpaid purchase money of the land conveyed to Harper. The defendants’ counsel urges, as applicable to the case, the equitable doctrine to the effect that, when premises subject to a mortgage are in parts conveyed at different times, the parcels are to be primarily charged with payment of the mortgage debt, in the reverse order, of alienation. This principle of equity may be available when, as between the grantor and his earlier grantee asserting it, the former ought to pay the mortgage debt, and which, as between them, the grantee ought not to be required to pay. Skeel v. Spraker, 8 Paige, 182; Insurance Co. v. Halsey, 8 N. Y. 271. There may be other qualifications, of the rule beneficial to grantees of subsequent conveyances,, to be recognized and applied when equities in their behalf have-the support of circumstances requiring it. It is true that the defendant did not undertake to pay this mortgage debt, but an amount equal to it, of the consideration of the conveyance to to him, has not been paid, and he has, by the terms of his deed, taken title subject to that mortgage. How, then, has he support for his contention that the land conveyed to him should be relieved wholly or partially from the lien of the mortgage ? It may be, and probably is, true that he has not realized the amount he expected, in the manner before mentioned, to receive by way of satisfaction of the debt due him from the bag company, nor as much as he may have so realized if it had not' been for the interruption occasioned by the Scudder mortgage. But McCaffrey did not undertake to pay any sum upon the indebtedness of the bag company to Harper. His promise was to pay the stipulated amount of the consideration, less $300, to the bag company, and the defendant expected to receive it from the company. It may be that this method of paying the money for the land, and receiving the reduced amount hack through the company, was adopted for a purpose not requiring consideration here. When he consented to and did take the deed declaring that the conveyance was made subject to the mortgage, the arrangement before referred to was apparently and in fact modified. And the promise and failure of McCaffrey to obtain the release of the mortgage did not have the effect to qualify the relation of the mortgage to the land conveyed to Harper, as expressed by the terms of the deed, inasmuch as that amount of the purchase money remained unpaid. It cannot he assumed that the intention of the parties to the deed taken by Harper was other than as there expressed,—that it was made subject to the Scudder mortgage to the amount of $1,000. The intention not only appears by the terms of the instrument, but it has the support of the fact that there was such a mortgage, and that such an amount of the consideration was withheld by reason of it; and the fact that such portion of the consideration was retained to cover the amount of the mortgage was expressed in a letter of the defendants’ attorney, written shortly after the deed was delivered. The fact that the indebtedness of the bag company to Harper may have been reduced $700 more if the Scudder mortgage had not existed, or if'the hen of it had been released from the premises, does not seem to have any essential bearing upon the questions here for consideration.

The judgment should be affirmed.

All concur.


author: PEE CURIAM.

text:
    George W. Toerge v. Nicholas Toerge et al.

    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    "Wills—Construction—Residuary clause.
    Testatrix bequeathed an annuity to her son, who was of unsound mind, and provided that if-he should recover he should have certain real estate for life. To her daugher she devised a life estate in her other real property, and provided that if her son should die without recovering his mental faculties the daughter should have for life the real estate so devised to the son. The. will concluded by giving to the daughter certain personal property, “ and all other property, of whatsoever kind or nature, not hereinbefore made mention of," absolutely and forever.” Held, that it was not the intention of testatrix to give the daughter the remainder in the real property after the life estates therein.
    Appeal from special term, Kings County.
    Action by George W. Toerge against Nicholas Toerge and wife and Edward P. Toerge. There was a judgment in favor of plaintiff, and defendants Nicholas Toerge and wife appealed.
    The opinion of Mr. Justice Osborne at special term is as follows :
    One Maria Elizabeth Stark died January 4, 1880, leaving a last will and testament bearing date May 15, 1879, which has been duly admitted to probate. This action is brought to obtain a judicial construction of the so-called residuary clause of her will. At the time of making her will the testatrix had two children living, viz. a son, John Neiheisel, then of unsound mind, and a daughter, Lena, the wife of the defendant, Nicholas Toerge. The testatrix at the time of making her will was the owner of four certain houses and lots in Brooklyn, a house and lot in New York City, and certain personal property. She died seised of said real estate, and also possessed of personal property and cash to the appraised value of nearly ten thousand dollars. By her will the testatrix, after directing the payment of her debts, gave and bequeathed to her son, John, the monthly sum of one hundred dollars during the period of Ms mental incapacity. In case of his fully recovering, then, in lieu of said monthly payments, the testatrix gave- and bequeathed “to him during his life the following real property, to wit, the house and lot known by the street number 79 on Myrtle avenue; the house and lot known by the street number 161 on Court street.” The testatrix further provided that in case her said son died of the disease he was then afflicted with, and never possessed of the premises aforesaid, as thereby provided, leaving, him surviving, his present wife, Christina, she should receive a legacy of four thousand dol-. lars. Testatrix appointed her daughter, Lena- Toerge, and her executors or administrators, trustee or trustees to make said monthly payments to her said son, and authorized her executor to pay said sum of one hundred dollars monthly to her said-daughter. Then followed three legacies of two hundred dollars each. Next testatrix gave and bequeathed to her “ daughter, Lena, during her life, the house and lot known by the street number 180 on Amity street, in the city of Brooklyn, and the house and lot known by the street number 147 on west street, corner of Barclay street, in the city of New York. And until the aforesaid John Neiheisel does fully recover from, the disease he is now afflicted with, and in the event of his-death during the lifetime of Lena Toerge, I give and bequeath to her_ during her life the houses and lots numbers 79 and 81 Myrtle avenue, and the house and lot number 161 Court street, all in the city of Brooklyn, New York. I further give and bequeath to her all my jewels, pictures, ornaments, books,.household furniture, and all other property, of whatsoever kind or nature, not hereinbefore made mention of, absolutely and forever.” Appoints Nicholas Toerge to be executor. Lena Toerge, the daughter of testatrix, died March 4, 1883, leaving, her surviving, her husband, Nicholas Toerge, and two-sons, viz. George William Toerge, the plaintiff, and Edward P. Toerge, one of the defendants. By her will, duly probated, she made her husband her sole devisee. John Neiheisel, the son of testatrix, died December 30, 1884, without surviving-issue, never having recovered his sa-nity, and leaving his-widow, Christina, to whom the legacy of $4,000 bequeathed to her has been paid.
    The question sought -to be determined in this action is-'whether the testatrix, by the so-called residuary clause of her will, intended by the use of the words, “ and all other property, of whatsoever kind and nature, not hereinbefore made mention of,” to devise to her daughter, Lena Toerge, the estate-in remainder in the said five houses and lots, the life estate in which she had bequeathed to her son and daughter as above-set forth, in which event said realty passed to the defendant Nicholas Toerge under the will of his wife, or whether testatrix died intestate as to said estate in remainder, in which event such realty passed, one-half thereof to the daughter, Lena, and one-half thereof to the son, John, and subsequently on his death to the plaintiff, George William Toerge, and the defendant, Edward P. Toerge, the nephews and heirs at law of their uncle, John Neiheisel, subject, of course, to the life estates given by testatrix to her son and daughter. In construing this so-called residuary clause, it is the duty of the court to be governed by the apparent intention of the testatrix, as disclosed by the whole will, as well as to bear in mind the presumption that the testatrix, when she made her will, did not intend to die intestate as to the great bulk of her property. If, however, such intestacy fairly appears, it is no part of the duty of the court to distribute the property undisposed of, by the insertion in the will of some omitted provision, in order to avoid intestacy. An examination of that portion of the will preceding the so-called residuary clause plainly shows, to my mind, that the testatrix desired to provide equally well for her daughter and for her son during their lives, contingent, however, on her son’s recovery, and that event she plainly contemplated as likely to occur. Nowhere can there be spelled out of any portion of the will preceding the so-called residuary clause any intention to expressly favor her daughter at the expense of her son, provided he fully recovered. Yet, if the so-called residuary clause is to be construed as showing an intention to devise to her daughter the estate in remainder of her realty, the effect of such a construction would be to elimi- - nate the impartiality of the testatrix, and to vastly favor her daughter at the expense of her son. Again, the testatrix, in the clause making" provision for her daughter, gives to her “during her life” the two houses and lots designated, and then further provides that until her son, John, recovers, “ and in the event of his death during the lifetime of Lena Toerge, I give and bequeath to her during her life” the houses and lots which she had in the previous clause given to her son “ during his life.” Here, in addition to the devise to her daughter for life of the two houses and lots designated, is a provision plainly showing that the testatrix had in her mind the contingency of her son’s death during her daughter’s lifetime, and yet she expressly provides that if such an event should happen her daughter is then only to have “ during her life ” the houses and lots which have been devised to her son for life in case of his recovery. It seems hardly reasonable to suppose that had the testatrix intended that her daughter should take the estate in remainder, as well as the life estate, she would have been so particular as to specially limit the interest given her to a life estate, and then, in the very next paragraph of her will, should, by vague and uncertain language, give to her the estate in remainder. And this conclusion acquires additional force from the fact that, when the testatrix was contemplating the contingency of her son dying before her daughter, she should still limit to a life estate the interest which her daughter should take in the houses and lots which she had given to her son for life in case of his recovery. Is it not more reasonabl to assume that the testatrix, after providing for her son and daughter during their respective lives, intended that her grandchildren should take the estate in remainder, and, to insure that disposition of her estate, that she limited the interest given to her son and daughter to a life estate, so that they could not divert it from her grandchildren ?
    The learned counsel for the defendant, Nicholas Toerge, contends that the clause in question is a general residuary clause, and, to support this contention, cites numerous authorities holding that a devise of the “ rest, residue, and remainder ” of the estate is to be construed as carrying everything not before effectually disposed of. This rule of construction, however, has its exceptions, where the language used tends to indicate a different intention on the part of the testator. In Kerr v. Dougherty, 79 N. Y. 327, the court says (page 348), “ From the cases cited, it is entirely clear that in the interpretation of the residuary clause in the will, or one which it is claimed bears any analogy to it, the court will not only look at the language employed, but the surrounding circumstances, to determine what the intention of a testator was.” In Floyd v. Carow, 88 N. Y. 560, the court says (page 568), “But the intention is the controlling consideration, and a particular interest or estate will not pass by a residuary clause when it appears from other provisions of the will that "it was the intention of the testator to exclude such particular interest or estate from the residuary gift.” Again, in Smith v. Smith, 141 N. Y. 29; 35 N. E. 1075, the court says (page 34, 141 N. Y., and page 1076, 35 N. E.), referring to the above rule, “ The-rule shall have full effect unless the testator, by the language he uses, manifests a plain intention to curtail its operation.”
    By the so-called residuary clause contained in the paragraph immediately following the devise to her daughter “ during her life,” the testatrix goes on to say, “ I further give and bequeath to her all my jewels, ornaments, books, household furniture, and all other property, of whatsoever kind or nature, not herein-before made mention of, absolutely and forever.” If the estate in remainder of all of the realty of the testatrix was thereby intended by her to be devised to her daughter, it can only take effect by assuming that it was property “ not hereinbefore made mention of.” The learned counsel for the defendant, Nicholas Toerge, contends, with much earnestness and considerable ingenuity, that, as only a life estate had been previously “ made mention of,” the testatrix must have had in her mind the estate in remainder, which she had not “ made mention of,” and that she intended that those words should be construed as referring to such estate in remainder. To sustain this contention would require the will to read substantially as follows : “ I give to my daughter during her life the houses and lots known by such and such street numbers, and I further give my jewels, etc., and said houses and lots to her absolutely and forever.” The words “ made mention of ” are to be construed in their ordinary and popular sense, and mean, and are the ■equivalent of, “ to direct attention to,” “ to speak briefly of,” “toname casually or incidentally.” It seems to me that testatrix had “ made mention of ” her real property in her will before coming to the so-called residuary clause. The language of the will with respect to her real estate is marked. She ■does not give the “ rents and profits ” of her real property for life, nor “ the income ” for life, nor “ estate for life ” in certain real property. In the bequests to her son, John, she says, “ I give and bequeath to him during his life the following real property, to wit: The house and lot known by the street number 79 on Myrtle avenue; the house and lot lonnvn by the street number 81 on Myrtle avenue ; the house and lot known by the street number 161 on Court street; all the said houses being situate in the city of Brooklyn, state of Mew York. Should he, however, die of the disease he is now afflicted with, and shall never have been possessed of the premises aforesaid as hereby provided,” etc. In the bequests to her daughter she says: “ 1 give and bequeath to my beloved daughter, Lena Toerge, wife of Midiólas Toerge, during her life, the house and lot known by the street number 180 on Amity street in the city of Brooídyn, and the house and lot Icnown by the street number 147 West street, corner of Barclay, in the city of Mew York ; ” and until her son recovers, or in case he dies during Lena’s lifetime, “I give and bequeath to her during her life the houses and lots numbers 79 and 81 Myrtle avenue, and the house and lot number 161 Court street, all in the city of Brooklyn, Mew York.” In the face of this specific mention of each “ house and lot” by its street number, and in the devise to John in addition the use of the words “following real property,” and the “ premises aforesaid,” I do not think that the testatrix intended to have it assumed that she had not made mention “ of her real estate ” as real estate, notwithstanding she had only devised a life interest therein. It seems to me that, if testatrix had intended to include in the devise to her daughter the estate in remainder, she would have used the words “ not hereinbefore disposed of,” or words of similar import, to attain that end. It would be a strained construction to say that the words “ made mention of” are tobe understood ? as meaning “ disposed of.” Any such construction would substantially constitute a distribution by the court of the property of the testatrix left undisposed of. But the words, “ all other property, of whatsoever kind and nature, not hereinbefore made mention of,” undoubtedly had a meaning and purpose in the mind of the testatrix. I think that her intention is plain and clear, especially when it is borne in mind that this language is immediately preceded by a gift of “all my jewels, pictures,
    ornaments, books, household furniture, and--” The words “ all other property ” are, in my opinion, restricted by the context to property of the same general character as that already mentioned. Jarm. Wills, marg. p. 706, lays down the following rule of construction: “ Where, however, general expressions stand immediately associated with less comprehensive words, they have been sometimes restrained to articles ejusdem generis, the specified effects being considered as denoting the species of property which the larger term was intended to comprise ; and this upon a principle evidently analogous to that of which, as we have seen, the words ‘estate ’ and ‘ property’ have been confined to the personalty by the juxtaposition with words descriptive of that species of property.” In Dole v. Johnson, 85 Mass. 367, the court cites several English decisions, and says, “ These cases all support the doctrine that where bequests are made by words of enumeration, which are followed in the same clause by collective words, or words of the same description, the latter may all be confined to matters ejusdem generis.” In Hunt v. Hunt, 4 Gray, at page 193, the court says, “ When the words ‘ property ’ and ‘ estate ’ have been held to be limited to personalty, we think it has been where there were qualifying words, or where these general terms were so connected or mixed with words expressing only things personal as to limit their meaning.”
    The evidence herein shows that the testatrix died possessed of three thousand dollars in cash, certain furniture, etc., appraised in the inventory of her estate at $746, and certain bonds and notes at $6,200. Out of this personal property, testatrix bequeathed $4,000 to the wife of her son, John, in case she survived him, and three legacies of $200 each to various friends. No disposition was made of the balance of her per-. sonal property, nor was it “ made mention of,” and I think that this balance was what testatrix had in mind, and intended to bequeath to her daughter, when she gave her, in addition to her jewels, etc., “ all other property, of whatsoever kind and nature, not hereinbefore made mention of; ” and the language was made broad enough to include cash, bonds, notes, and the legacy to John’s wife, in case it lapsed. I am accordingly of the opinion that the testatrix made no devise of the reversion or estate in remainder of her real estate on the expiration of the life estate therein given to her son and daughter, but that she died intestate in regard thereto ; that one undivided half of such reversion or estate in remainder descended to her son, John Neiheisel, the other one undivided half to her daughter, Lena Toerge; that on the death of said Lena Toerge her undivided half passed, under her will, to her husband, the defendant, Nicholas Toerge; that on the death of John Neiheisel his undivided half passed in equal shares to his nephews, his only heirs at law, the plaintiff, George William Toerge, and the defendant, Edward P. Toerge.
    Josiah T. Marean, for appellants ; John L. Devenny, guardian ad litem, for respondent, Edward P. Toerge; Adolph Simis, Jr., for other respondents.
   PEE CURIAM.

—Judgment affirmed on the opinion of the special term, with costs to all parties payable out of the estate.


author: TOMPKINS, S.

text:
    In the Matter of the Application for Probate of the Will of George Van Houten.
    (Surrogate’s Court, Rockland County,
    June, 1896.)
    Wills—Undue Influence.
    Undue influence in procuring the execution of a codicil three weeks after the will was made, reducing the amount of a morgtage which the will required the devisee (testator’s grandson), to give to his uncle (testator’s son), is shown by evidence that testator was 82 years old; that his relations with his son had not changed since the will was made ; that testator, after signing the will, said he felt happy and was more contented, but a few days afterwards he was dejected and refused to take medicine, said he wanted to die, and complained to the nurse of his grandson’s treatment of him, and told her that his grandson, who was not pleased with the will, threatened to go away and hang himself, as his father had done, if the testator did not change things ; that the grandson, who had constant communication with testator, and managed his property for him, changed his manner towards the testator, as soon as he was informed of the contents of the will, handled him roughly, spoke harshly to him, and finally arranged for the scrivener to come and write the codicil.
    Frank Comesky, for executors; A. V. Fellows and Alonzo Wheeler, for Ralph Van Houten; G. Z. Snider, for contestant.
   TOMPKINS, S.

—The deceased died on the 15th day of August, 1895, at the age of 82 years. The proponents have offered for probate instruments purporting to be the last will and testament and codicil, executed respectively on the 7th day of May, 1895, and the 29th day of May, 1895. The probate of the alleged codicil is contested by Edward 0. Yan Houten, a son of the deceased, he alleging that the testator had not mental capacity to make and execute the codicil, and that he was unduly influenced to make it, and that the paper was not executed in conformity with the statute. At the close of the proponent’s case, a motion was made by contestant’s counsel to dismiss the proceeding for the probate of the codicil on the ground that the same had not been executed with the formalities required by law. That question was then fully presented, and a decision was made denying the motion, and while the same objection is still urged by contestant, there has been no testimony introduced on his part of a character to change the opinion which was then expressed. The question of the mental capacity of the testator is not now urged by contestant, except so far as it may have rendered the deceased susceptible to such influence. While the testator was a very old man, feeble in body, and for a.year before Ms death was confined to his home, and required the constant attendance of a nurse, it is, nevertheless, conceded by all of the witnesses who testified on the subject that he was of sound mind down to the time of his death, and that about the time the will and codicil were executed, and subsequent thereto, he comprehended and understood all matters that were talked about in his presence. He alone gave instructions to the draftsman of the will and codicil concerning the disposition of his property in a comprehensive and intelligent manner and, without discussing this question further, I find that at the time of the execution of both the will and codicil he was of sound mind and capable of devising and bequeathing Ms estate.

The contestant insists that the testator was unduly influenced by persuasion, threats, fears, and duress to make the codicil. The will contained the following provision:

“ Third. The other half of the Barker farm and the homestead on Avhich I reside, that Avas given to my daughter Fanny in a former will, I give and devise to my grandson, Ralph Yan Houten, subject to a mortgage of five thousand dollars, Avhich he shall give to my son, Edward G. Yan Houten.”

By the codicil the amount of the mortgage which the Avill proAdded that Ralph Yan Houten should give to EdAvard 0. Yan Houten was reduced from the sum of $5,000 to. $1,000, without - interest, so lqng as the said homestead should remain ,in the possession of Ralph. The codicil also provided that the personal property at the barn should go to Ralph Yan Houten; also the kitchen furniture. By the Avill the kitchen furniture Avas to be divided, and EdAvard 0. Yan Houten Avas to have all of the personal property excepting the farm utensils, Avhich Avere bequeathed to Ralph. The contention of the contestant is that, after the execution of the Avill, on the 7th day of May, 1895, and until the 29th day of May, 1895, Avhen the alleged codicil Avas executed, Ralph Yan Houten, the solq beneficiary under the codicil, by Ms manner and conduct tÓAvards his grandfather, and his treatment of him, and threats, so worked and operated upon the old man’s mind that he Avas unduly influenced to make the codicil. In considering this question, a clear understanding of the relations of the parties and of the several members of his family Avill aid us. The deceased resided at OrangeAdlle, in Rockland County, and, after his son William’s death, AAdiich occurred nearly 80 years ago, his household consisted of himself, his Avife, his deceased son William’s wife and three children, his daughter Fanny, and the contestant, EdAvard 0. Yan Houten. Ralph Yan Houten is a son of the testator’s deceased son, William, and some time prior to 1890 left the testator’s home and Avent aAvay. After that the other children of William left the testator’s home, and the son William’s AAddow died. In 1890 the testator’s Avife died. Then Ralph returned to Ms grandfather’s farm, and remained there until the old man’s death, during all of which time he worked upon the farm, and under an agreement with his grandfather had some share or interest in the products and profits of the farm, and during the sickness and physical decline of the deceased had full authority and control or the farm and premises. The testator’s daughter Fanny died on the 5th day of July, 1894, and after that the testator and Ealph Van Houten were the only members of the family left together at the homestead. As the testator grew more feeble, and gave less of his attention to the management of the farm, Ealph assumed the general charge and management of the affairs of the farm, superintending and directing the workmen and assisting in the care of his grandfather. A will was prepared for the deceased and executed by him in 1888, by which he devised to his daughter Mary the Barker farm, subject to a mortgage of $1,000, to be given to each of the three children of his deceased son, William, and devising all the rest, residue, and remainder to his wife, Margaret, and daughter Fanny, and providing further as follows :

“ By reason of advancements and conveyances of a portion of my real estate by deed of conveyance and gift of my son Edward C. Van Houten I have omitted him from any further participation of my estate in and by this testamentary disposition of the same.”

Another will was made in April, 1891, by which he gave to his daughter Mary the Cooper farm, and by which he gave to his daughter Fanny and to the children of William the Barker farm. All of the residue he gave to his daughter Fanny. This will contains the same reference to his son, Edward C. Van Houten, the contestant, and was made after his wife’s death. Then, again, on the 10th day of August, 1894, and after his daughter Fanny’s dehth, he made a codicil, by which he bequeathed unto his son, Edward C. Van Houten, all the “ actual money of which I may die possessed, together with whatever may be due to me and unpaid from my share of the products of the farm ; also all money or moneys standing to my credit or in my name in any of the savings banks or banks of deposit, except so much of the 'moneys above described as may be required to pay my just debts and obligations and my funeral expenses.” There seems to have been no change in the family, or in the relations they bore to each other, from the date of this codicil to the date of the execution of the will and codicil now offered for probate. The codicil was drawn by one S. B. Huested, who also drew and superintended the execution of the will, and I find that in the execution of the codicil all the requirements of the law were complied with. The contestant contends that from the relations existing between the deceased and his grandson, Ealph Van Houten, and from the fact that the codicil made in favor of the latter radically changes the provisions of the prior will, undue influence should be presumed, and that the burden of proof is thereby cast upon the proponent.

It appears from the testimony of Jared Osborn, who worked upon the place, and was one of the subscribing witnesses, and a witness for the proponent,, that shortly after the will was executed he stated to Ralph, in substance, the provisions of the will in respect to the $5,000 mortgage, which Ralph should give to the contestant, and which his (Ralph’s) share should be charged with. Then, in about three weeks’ time, this codicil was made, changing the amount of the mortgage from $5,000 to $1,000, without interest. There is no proof that during these three weeks the relations between the deceased and his son Edward changed, or that there ivas any apparent reason for so radical a change in the provisions of his will. Ralph was in sole possession and charge of the farm, and the deceased was dependent upon him for the care of his property. Ralph was in constant communication with his grandfather, and from the testimony of the nurse, Jennie Marak, the deceased and Ralph had arranged for the coming again of Hr. Huested to the house for the purpose of making the codicil. Ralph occupied a position of influence and authority over his grandfather and the affairs of the place. I am in doubt as to whether or not these conditions and relations in themselves shift the burden of proof from the contestant to the proponent. From all of the evidence, however, I have come to the conclusion that the codicil was not the free and voluntary act of the testator. After the death of his wife, he changed his will, and made ample provision for his sick daughter, Fanny, by which, will he excluded the contestant from a participation of his estate, giving as a reason therefor that he had already bestowed property upon him. This was due apparently to his desire to make as ample provision for his invalid daughter as was possible. After her death he made the will now offered for probate, the validity of which is not now- questioned. Ry this will he gives $5,000 of his estate to the contestant. It is not claimed that anything occurred in the relations between him and the contestant after the execution of the will which can be assigned as a reason for so radical a change as was made by the codicil. The contestant lived at Nyack, several miles distant from the deceased, while Ralph, upon whom the testator was dependent in a very large sense, lived and was constantly with him. It was testified by Orpha D. Yan Houten that on the 8th day of May—the day after the will was made—the deceased was bright, and said that he felt happy and more contented, and told her that he had made a change, and said : “ Tell Eddie that Hr. Huested has been here, and fixed my will, and Eddie must pay him.” There is no claim that Edward 0. Yan Houten, the contestant, or any one in his behalf, unduly influenced the deceased to make the will. It appears from the testimony of the same witness, Orpha D. Yan Houten, that the next week, when she saw him, she observed a change. He seemed cast down; he said he felt very badly; refused to take his medicine, and informed her that Ralph did not like the changes that he had made in the will; and from that time to his death he refused to take any more medicine, and said that he was not going to live, and Avanted to die. He frequently said that Ralph had threatened to commit suicide, as his father, William Van Houten, had done, and the deceased complained that he never could ÍÍATe through such a thing again, and that he did not Avant to do anything that might bring that on again. The nurse, Jennie Marah, Avho impressed me as being a very truthful and conscientious Avitness, had been Avith the deceased some time before the will Avas executed. She Avas in the room at the time of the execution of the Avill, and heard the deceased say that he Avanted $5,000 to go to his son EdAvard; and after the will Avas made he said he felt happy. She testified that after the making of the will Ralph’s treatment of him changed. He handled his grandfather roughly, and spoke harshly to him, and on an occasion after the making of the will, and before the codicil Avas executed, the Aifitness heard Ralph talking Avith his grandfather about the will, and heard Ralph say (quoting the Avords of the Avitness): “ As sure as there Avas a God in heaven, he would suffer from the Avay he treated him.” She observed a decided change in the old man’s manner and condition a feAV days after the will was made, Avhich continued doAvn to his death. Before this change came, he Avas anxious to live, spoke about being provided Avith Avinter clothing, took his medicine regularly, and ate Avell. After the change, he refused to take his medicine, said he Avas going to die, and complained that the nurse Avas trying to keep him living and evidenced a restlessness and uneasiness and a desire to die. He complained to the nurse of Ralph’s treatment of him. He said that he was tormenting him, and told her that Ralph Avas not pleased Avith the Avay he had fixed his property, and that he Avas tormenting him, and that he said that lie Avas going aivay from him, and Avould leave the place, which he assigned as his reason for Avanting to die. He also said to the Avitness that Ralph threatened to hang himself, as his father had done, if he did not change things. This all occurred in the month of May, betAveén the time of the making of the will and the codicil. lie frequently expressed his fear that Ralph Avould leave him, and would say, “ What will I do if Ralph leaves ? ” This witness testified that his troubles and Ralph’s manner towards him and treatment of him seemed to be on his mind all the time. The morning of the day the codicil Avas executed he Avas Arery uneasy, and sent the nurse to the barn to Ralph, to knoAV if Mr. Huested Avas coming. After the execution of the codicil, he refused to take his medicine; his condition greiv gradually Averse; he did not Avant to see the contestant, or speak to"the contestant’s Avife ; whereas before lie had always Avanted to sec them, and Avas cordial in his manner toAvards them. lie requested that the contestant be not informed of the making of the codicil.

These facts and conditions, in connection with the radical change made in the provisions of the will, so shortly after its execution, and the fact that the change in the testator’s condition began almost immediately after Ralph became aware of the provisions of the will in respect to the $5,000, are only consistent with the conclusion that the codicil was the result of duress, or fear, produced by Ralph’s conduct, treatment, and threats. In the helpless condition in which he was, and dependent, upon Ralph, he apparently feared that unless he made a change to accord with Ralph’s views, he would either hang himself, as his father had done years before, or would abandon the place, and leave the old man helpless and alone. While it is apparent from the testimony that the deceased himself gave the instructions to Mr. Iluested in reference to the change that he wanted made, and that the preparation and execution of the-codicil were regularly and orderly done, and while I am fully satisfied that Mr. Iluested and the subscribing witnesses observed nothing at the time to indicate that the deceased was-laboring under any restraint or any improper influence, I am, nevertheless, forced to the conclusion that he had been so wrought upon, harassed, and tormented, that he had determined to rid himself of further annoyance, and of the danger of Ralph’s leaving him, by having Ms (Ralph’s) wishes complied with. If so, the codicil was not his will, but was the-will and desire of Ralph, and, in the light of the original will and all the surrounding circumstances, was the result of the controlling influence of Ralph’s conduct and threats. In coming to this conclusion, I have carefully considered the testimony of all the witnesses, and have not considered the declarations made by the deceased to the witnesses in the absence of Ralph, except so far as they tend to show the effect of Ralph’s threats' and treatment upon the testator. A decree will therefore be made admitting the will to probate, and refusing probate to the codicil, with costs to all parties out of the estate.

Ordered accordingly.