text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE OPEN BOARD OF STOCK BROKERS’ BUILDING COMPANY OF THE CITY OF NEW YORK.

      Trustee of a power of sale — he cannot himself purchase any of the trust estate — a purchaser, having notice that the trustee has sold to himself, may require evidence that the acts of the trustee have been ratified, by the cestui que trust.

    A testator, by his will, conferred upon his executor a power to sell and dispose of any or all of his real estate, at public auction or by private contract, for the purpose of making partition or division of his estate, or for other purposes. On April 1, 1888, at five minutes past three o’clock in the afternoon, a deed, dated March 21, 1883, was recorded in the register’s office. By this deed, Albert Smith, the sole surviving executor, conveyed a portion of the testator’s real estate to William H. Smith for the consideration of $35,250. At ton minutes past three o’clock in the afternoon of the same day, there was recorded in the same office a deed, dated March 25, 1863, by which William H. Smith conveyed the same premises to Albert Smith, for the consideration of $35,320.
    Upon an application made by one who claimed title under Albert Smith, to compel a purchaser to complete a contract for the purchase of the premises.

      Held, that as it was evident that the sale was made by Smith for the purpose of himself acquiring the title to the premises, the conveyance might be set aside by any of the heirs-at-law of the testator, or by the persons entitled, under his will, to the proceeds of the sale.
    That if the acts of the executor had been acquiesced in or ratified by the parties interested in the estate, it was the duty of the seller, and not of the purchaser, to prove that they had done so.
    That in the absence of such proof the purchaser should not be compelled to take the title, less than twenty years having elapsed since the purchase by the executor.

      Appeal by Samuel MéMillan, a purchaser, from orders requiring him to complete the purchase of real estate sold by the receiver of the defendant under the order of the court.

      John Lindley and George Waddington, for Samuel McMillan, appellant.

      J. Sanford Potter, for R. S. Ransom, receiver, etc., respondent.
   Brady, J.:

Several questions were discussed upon the argument of this appeal, but it is not necessary to pass upon them in the view that has been adopted in reference to one of the questions' and the result arrived at.

The premises which were purchased by the appellant belonged to one Casper Meier, who died seized of them in February 1837, and who, by his will, which was duly proved before the surrogate of this county in the same month, and recorded in his office, conferred upon his executors named in it a power of trust to sell his real estate, and to divide the proceeds of such sale among his children and descendants; and he appointed Laurenz Yon Post and Albert Smith executors of the will. The executors by the will were given full power and authority, for the purpose of making or facilitating a partition or division of the testator’s estates or any part of them, upon the decease or remarriage of his wife, or in lieu or in aid thereof, or at any time or times prior to such partition or division becoming necessary, absolutely to sell and dispose of by public auction or private contract, and in such lots or parcels as to them should seem expedient, the whole or any part or parts, parcel' or parcels of his real estate, and to execute good and sufficient conveyances for the same to the purchaser or purchasers thereof in fee simple absolute, if they, his executrixes and executors, should in their discretion deem it necessary or in any wise expedient for the purpose.of any such partition or division, or otherwise to make any such sale or sales.

It appears that the coexecutors, Yon Post and Smith, qualified and were duly granted letters testamentary. It also appears that before the execution and delivery of the two deeds which will be presently mentioned Yon Post died. And by one of these deeds, dated March 21, 1863, and recorded in the office of the register of this county on the 1st day of April, 1863, at five minutes past three o’clock in the afternoon, Smith, as sole surviving executor.of Meier, deceased, conveyed to one William H. Smith the premises in question; and by the other deed, dated 25th of March, 1863, being four days subsequent to the date of the first deed, and recorded on the 1st of April, 1863, at ten minutes past three o’clock in the afternoon, which was five minutes after the record of the first deed, William H. Smith and Charlotte, his wife, conveyed the premises to Albert Smith, the executor. The consideration of the first deed, namely, from Albert to William H. Smith, was $35,250; the consideration for the deed from Smith and wife to Albert Smith was $35,320, being seventy dollars more than the consideration named in the first deed.

The conclusion to be drawn from these circumstances is inevitable, namely, that the sale was made by Smith, the executor, for the purpose of acquiring the title to the premises held in trust. No other construction can be placed upon the transaction as it is developed by the deeds themselves. The consequence is that Smith, in making the purchase of the estate which he held in trust, violated a rule of law so well established that it cannot be gainsaid and is not subject, it would seem, to any qualifications except as to a sale by the cestui que trust to him; and that is, that a trustee cannot be a purchaser, either directly or indirectly of the trust estate. The rule, as stated by 'Lewin on Trusts and Trustees (2 Am. ed., 391) is, that one who stands in a fiduciary capacity cannot under any circumstances whatsoever, purchase or deal with the property he holds in trust. And the late Chancellor Kent said, in the ease of Davoue v. Banning (2 Johns. Ch., 252): “However innocent the purchase may be in the given case, it is poisonous in its consequences.”

The chancellor also said : “ It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come at his own option, and without showing actual injury, and insist upon' having the experiment of another sale.”

“ This is a remedy,” said the chancellor, “ which goes deep and touches the very root of the „e vil. It is one which appears to me, from file cases which have been already cited, and from those which are to follow, to be most conclusively established.” (See Munro v. Allaire, 2 Caines’ Cases in Error, 182; Michoud v. Girod, 4 How. U. S. Sup. Ct. Rep., 503; Dobson v. Racey, 3 Sandf. Ch., 61.) See, also, Ames v. Downing (1 Brad., 321), in which the surrogate said: “ "Whatever doubt may once have existed on this point it is now the universal rule, that however fair the transaction, a trustee for sale is absolutely disabled from purchasing the trust property, and the cestui que trust is at liberty to set aside the sale and take back the property.” See, also, Gardner v. Ogden (22 N. Y., 327), and Forbes v. Halsey (26 id., 53), in which latter case Judge Davies, in giving the opinion of the court said: It is now well settled in this State that a guardian, trustee or other person standing in the relation of a fiduciary capacity, cannot deal with, or purchase the property in reference to which he holds that relation.”

The case of Graves v. Waterman (63 N. Y., 657), is not an adjudication in conflict with the rules stated, although in it an exception is made and stated' in the syllabus of the case which declares that though the trustee cannot purchase for himself, he may, under special circumstances, buy from the cestui que trust, if the latter is sui juris ; but that in such a case the burden is upon the trustee to establish such a bona fide contract as would support the purchase in a court of equity on a careful and'jealous examination of all the circumstances and a rigid inquiry into the perfect fairness and propriety of the transaction. The opinion is not reported. The case presented to the Court of Appeals is to be found in Court of Appeals cases for the year 1875 (vol. 477, case 7, page 47).

The opinion of r Justice Learned is printed therein, in which the learned judge said:

The trustee, by making what purports to be a sale of the trust property to himself, does not change the character in which he holds the property.” And further said : “ The principle is so well settled that the courts will not inquire, at the instance of the trustee, whether the bargain may not in fact have been beneficial to the cestui que trust, but will hold it to be void.” It will appear in that case that the purchase was made from the cestui que trust.

The learned justice in the court below evidently recognized the existence of this rule, but the effect of it appears to have been overcome in his mind by the proposition which is stated in his opinion, namely:

“ There is nothing in the papers before me tending to show that the heirs of Casper Meier have ever questioned the validity of the sale by the surviving executor, or that they have not accepted and received the proceeds of such sale from the executor.” And he further says: “ In the absence of proof to the contrary, I think that the presumption should be that the executor and trustee performed his duty, and that the heirs acquiesced in the sale.”

This view is a recognition of the doctrine of acquiescence or confirmation by the express act of the cestui que trust, which would make the sale lawful. (Johnson v. Bennett, 39 Barb., 237.) The proof shows that no accounting has been made before the surrogate, and there is no evidence of any distribution of the proceeds of the sale, or any acquiescence or confirmation of the sale by any act on the part of the cestui que trust, except the omission to assail the transfer.

The whole of the will is not before us, and we are not therefore advised of its entire provisions and cannot tell whether the time within which the trust should cease has expired or not; and the existence of such an element in the case affecting the title creates a doubt about its termination. The obligation of showing the facts in reference to the transfer, and making it one not subject to the rule which has already been stated, devolved upon the seller. (Graves v. Waterman, supra.)

The purchaser was not bound to examine into the transfer and the relations between the executor and the cestui que trust, and to furnish the evidence to overcome the doubt created by the conveyance to Smith, and from Smith to Smith back again.

It is a well-established rule that a court of equity will not decree the specific performance of a contract to a purchaser of real estate where the title is doubtful. (Jordan v. Poillon, 77 N. Y., 519 ; Argali v. Raynor, 20 Hun, 267.)

These sales took place in 1863, and therefore less than twenty years before the appellant’s purchase. Such lapse of time has not been regarded as sufficient to justify courts in interfering with the rights of the cestui que trust or their representatives and creditors. These rights survive a lqnger .period. (Hatch v. Hatch, 9 Ves., 292; Dobson v. Racey, 3 Sandf. Ch., 61; Iddings v. Bruen, 4 id., 263.)

The doubts which present themselves in reference to the validity of the transfer by Smith are sufficient, within the adjudged cases cited, to withhold an order of the court directing the purchaser to complete his purchase, and therefore it is unnecessary to consider the other- questions in the case, and of which it may be said in passing that they present no serious obstacles to the title. The order should therefore be reversed, but we think without prejudice to the rights of the receiver to enforce the contract, if he can supply evidence showing acquiescence in the sale by the heirs or cestui que trust of Casper Meier or the confirmation of it by any act of theirs.

Ordered accordingly, with costs of this appeal to abide the event of 'such proceedings as may be instituted at any time within sixty days from the entry of this order.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Dwight, J J.

Order reversed, with costs to abide the event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    In the Matter of WILLIAM H. FLANDROW.

      Attachment — service of, upon the personal representatives of a deceased judgment debtor — it cannot be served upon a person named in a will as executor, while its probate is being contested.

    In December, 1867, one Martin Van Brunt died, leaving a will, by which he appointed his widow, Mary, his executrix. A contest having arisen as to the validity of the will, on'e Schell was, on. December 1, 1868, appointed special administrator of the estate by the surrogate, and continued to act as such down to the time of this appeal. At the time of Van Brunt’s death a judgment had been recovered against him by the Marine Bank of Chicago. After Van Brunt’s death, and in April, 1869, it was sought, in an action brought by one Hammond against the Marine Bank of Chicago, to attach the judgment recovered by it against Van Brunt, by serving a copy of the attachment upon his widow, Mary, the executrix named in his will.

      Held, that she did not, under the circumstances of the case, represent the judgment debtor, and that the service of the notice of the attachment upon her was entirely without effect.

      Appeal from an order or decree of tlie surrogate of the county of New York,'denying an application made by the'petitioner for payment of a judgment claimed to have been transferred to him.

      Joseph H. Choate, for William H. Flandrow the appellant.

      G. Zabrislcie, for Edward Schell, special administrator of the estate of Tunis Yan Brunt, deceased, the respondent.
   Daniels, J.:

The petitioner, Flandrow, derived his title to the judgment under an attachment issued in an action brought by Henry W. Hammond against the Marine Bank of Chicago. Brevious to that time'the judgment had been recovered by the bank, which the petitioner applied to have paid out of the estate of the judgment debtor, Tunis Yan Brunt, by the special administrator having the estate in charge. To establish his title it was shown that the attachment had been served by delivering a copy of it, together with a notice stating the attachment of the judgment, to the attorney who had commenced and prosecuted the suit in which the judgment was recovered. In a preceding proceeding of the same nature as that which terminated in the order from which the appeal has been taken, it was held that this service upon the attorney did not operate as an attachment of the judgment, and this point was finally decided against the petitioner by the Court of Appeals. After that decision was made, an affidavit was obtained to the effect that on or about the 6th day of April, 1869, the person making it delivered a. certified copy of the attachment, with a notice showing the property levied upon, to Mary T. Yan Brunt, as executrix of the last will and testament of Tunis Yan Brunt, the judgment debtor. And it is practically on the basis of this affidavit that the present applicar tion was made to the surrogate for an order directing the payment of the judgment. It is not clear that the statement of service made in this affidavit is entitled to,reliance, for by that which was made as a return to the attachment, the only attachment of the judgment alleged to have taken place was by the service of a copy of the attachment, with a notice showing the property levied on, upon the attorney by whom the judgment had been entered, which service of the attachment was made by a different' person and at a different period of time, while the affidavit now relied upon w;as not made until about twelve years after the service mentioned in it, which is stated to have been made on or about the 6th of April, 1869. The omission to obtain this affidavit, and to make it a part of the proceedings first instituted, the fact that it was not obtained until an adverse decision had been made against the applicant, and the great lapse of time between that of the alleged service and the 22d of April, 1881, when the affidavit was sworn to, tend, to subject it to a serious degree of suspicion. And this is materially strengthened by the circumstance that in 1874 the person upon whom the service is stated to have been made positively swore that no such service had ever been made upon her.

But if the affidavit stating the fact of service should be relied upon as true, then the point is presented whether ' such a service of the attachment was a seizure of the judgment recovered by the Marine Bank of Chicago against Yan Brunt. He died in December, 1867, and the right of his widow, who was named as executrix in his will, as well as the validity of the will itself, were contested, and in consequence of that contest on the 1st of December, 1868, Edward Schell was appointed by the surrogate of the county of New-York special administrator of the estate of the judgment-debtor. And as the contest, concerning the will still continues he has acted as such special administrator from that time down to the present. No attempt whatever was made to serve the attachment upon him. And after the decision made by the Court of Appeals an application was there presented for a reargument of the appeal, because it, was then claimed in the affidavit of the petitioner that the attachment had been served upon Mary T. Yan Brunt, the only person known to represent the estate. That motion was denied, and it might perhaps be inferred from this denial that the court did not regard such a service to be that which the law required to make a lawful seizure under an attachment of a demand. or debt of the nature of the one in controversy. But if that view was not adopted in arriving at the denial of the motion for the reargument, it seems to be warranted by the provisions of the law as they were in force at the time when this service of the attachment is stated to have taken place. Eor while the rights or shares which the defendant might have in the stock of an association or corporation, together with the interest and profits thereon, and all his other property in the State was made liable to attachment, the mode prescribed for its seizure, when it was not capable of manual delivery, was by leaving a certified copy of the warrant of attachment, with a notice showing the property levied upon, with the president or other head of the association or corporation, or the secretary, cashier or managing agent thereof, in which such rights or shares existed, or upon the debtor or individual holding such property. (Code of Procedure, §§ 234, 235.)

This attachment could not be served upon the debtor in the judgment, because he had departed this life before it was issued, and the person named in his will as executrix never became authorized to act as such because of the contest relating to the will. The utmost extent of her authority never exceeded that of the right to pav- the funeral charges and to interfere with the ■ estate so far as such interference might be necessary for its preservation. (3 R. S. [6th ed.], 74, § 17.)

And this excluded the power to represent him in any respect as to debts owing by him at the time of his decease. She consequently never became the personal representative of the debtor in the judgment or the individual holding the judgment itself. And the authorities referred to, sustaining the right of an executor to act in certain respects, although letters testamentary were not issued, have no application to this controversy, for in the present case it never has been made to appear that the will itself was legally executed by the person named in it as the testator. The prohibition contained in the section of the statute just referred to is exceedingly broad 'in its effect and it deprives a person named as executor in a will, before letters testamentary are granted, from so acting as to become the representative of'the deceased person.

In the present case the very limited authority allowed to be exercised by an executor before the issuing of letters testamentary also appears to have been wholly suspended before the issuing of the attachment. That was done by the special letters of administration authorizing the preservation and collection of the goods of the deceased, issued to Edward Schell, as special administrator, for the statute then invested him, and him alone, with the authority to collect the goods, chattels, personal estate and debts of the deceased, and to secure the same, and for that purpose to maintain suits as an administrator. And that power was by the statute in terms prolonged until letters testamentary or of administration shall be issued upon the estate. (2 R. S. [6th ed.], 79, §§ 41, 42; Id., 81, § 54.)

Even these provisions, which for the present purposes were not materially extended by chapter 71 of the Laws of 1864, did not .authorize the special administrator as far to represent the estate as ■to permit him to make payment of debts. That authority was first given to him by section 10 of chapter 359 of the Laws of 1870. But the powers previously conferred upon him were ample for the purpose of placing him in the possession of the entire personal estate of the deceased party. To that extent, for the time being, he became the personal representative, and while this authority was vested in him, the person named in the will as the executrix could by no possibility in any manner interfere with this estate, for his authority, by the terms in which it was created and declared, was necessarily exclusive. In no manner certainly did she represent the debtor in the judgment or hold the judgment itself, and the service of the attachment upon her must be held to have been entirely without effect.

But if that service had been regular, the applicant does not appear to have been entitled to an order directing the payment of this debt, lor it is only when satisfactory proof may be made that the debts owing by the deceased do not in the aggregate' exceed the amount of the assets of his estate that the surrogate has been authorized, in a proceeding of this nature, to direct payment to be made by the special administrator. (Chap. 359, Laws 1870, § 10; Code Civ. Pro., § 2674.)

And the affidavit made by the special administrator in answer to the application stated that debts and claims had been presented to him which, with interest, amounted to a greater sum than $178,000, while the balance of assets realized and collected was less than $27,000.

Each of these objections presented a cpmplete answer to the petitioner’s application, and the order made by the surrogate, by which it was denied, should be affirmed, with costs.

Davis, P. L, and Brady, J., concurred.

Order affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD CAVANAGH, Appellant, v. DAVID McADAM, a Justice of the Marine Court of the City of New York, Respondent.

      Mandamus to compel a judicial officer to act — when the court, on proof that the pa/rticula/r officer’s time was taken up with other matters', will refuse it, in the exercise of its discretion — Code of Civil Procedure, secs. 3334, 3338.
    The relator applied for a writ of mandamus, commanding a justice of the Marine Court to entertain an application for summary proceedings .to remove a tenant from demised premises for the non-payment of four dollars and fifty • cents as rent. From tlie return of the justice it appeared that the application was denied because his time was required for and devoted to other business, having precedent demands upon him as a member of the court.

      Reid, that the court properly refused to order the writ to issue.
    Appeal from an order made , at a Special Term, denying an application for a writ of mm damns.

      Bosooe H. Charming, for the appellant.

      Ilenry Wehle, for tlie respondent.
   Daniels, J.:

The writ was' applied for because the justice declined to entertain an application for summary proceedings to remove a tenant from demised premises for the non-payment of four dollars and fifty cents rent. The time of the justice appears, by his return, to have been required and devoted to other business having precedent demands upon him as a member of the court. And because of that circumstance he was reasonably excusable for not entertaining the application, although the Code has declared that the judge or justice to whom such a petition is presented must thereupon issue a precept (Code Civ. Pro., § 2238), for’ it did not declare that he must also withdraw his time and attention from the other necessary business of the court for that purpose, and while the language of the section is mandatory in its terms it still could not have been intended to deprive him of the original discretion vested in judicial officers. (Spears v. Mayor, etc., 12 N. Y., 442.)

If he had been the only officer to whom such an application could regularly be ruadé a very different consideration would arise in the case, but by section 223é of the Code of Civil Procedure a variety of other officers were vested with the same power to whom the relator had the right to apply. And his application for this writ, instead of bringing his case before one of these other officers, indicates the existence of the disposition rather to annoy the justice proceeded against than to invoke the powers of the court for the purpose of redressing and vindicating a legal right. There is nothing in De Hart v. Hatch (3 Hun, 375), countenancing such a proceeding, and as the allowance of the writ was subject to the discretion of the court (People ex rel. Faile v. Ferris, 76 N. Y., 326), that was, under the circumstances presented, very wisely exercised in refusing to order the writ to be issued.

The order should be affirmed, with costs.

Davis, P. J., and Brady, J. concurred.

Order affirmed, with costs.


text:
    CHARLOTTE RAMSDEN, Respondent, v. EDWARD C. RAMSDEN, Appellant.

      Alimony and counsel fees — in what cases they may be granted— Oode of Oml Procedure, sec. 1769 — Action for a separation, where the marriage toolc place out of the State.

    Except in actions brought to procure a separation or divorce, as prescribed in articles 2 and 3 of title 1 of chapter 15 of the Oode of Civil Procedure, the court has no power to make an order requiring a husband to pay any sum of money to his wife to enable her to cany on the suit or to provide for her support during its pendency.
    Where the marriage took place without the State, an action for separation cannot be maintained under section 1763 of the Code of Civil Procedure, unless the parties have been residents of the State for at least one year and the plaintiff is such a l’esident at the time the action is commenced.
    Appeal from an order directing the defendant to pay to the plaintiff twenty dollars a week as temporary alimony during the pendency of this action, and the further sum of $250 to her attorney, as counsel fee.

      John V. R. Lewis, for the appellant.

      J. Tredwell Richards, for the respondent.
   Daniels, J.:

The action has not in terms been brought either for an absolute divorce or a separation of these parties; but its object, as that has been stated in the complaint, is to obligate the defendant to pay to the plaintiff a certain sum for her maintenance and support, sufficient to enable her to live and maintain her proper condition in life as the lawful wife of the defendant. The parties were married in Germany, and the defendant, about the year 1875, took up his residence in the city of New York, where he has ever since then resided. The plaintiff herself, according to her own statements, followed him here in September, 1881, and from that time she resided in the city until April, 1882, during which month this action was commenced by her. Her residence at that time in this State had extended over a period of only about seven months, and the point is therefore presented whether, under this state of facts, she is capable of maintaining her action. For it is only when an action is brought in a case prescribed and defined by the present Code of Civil Procedure that an order can be made requiring the husband to pay any sum of money to enable her to carry on her suit, or to provide for her support during its pendency. (Code, § 1769.) The actions referred to by this section are twofold in their character. The object of one is to obtain an absolute divorce, because of the conjugal infidelity of the defendant; and although such misconduct is alleged against the present defendant, this allegation was not made for any ulterior purpose of this description. For neither of the other essential allegations, on which the successful prosecution of such an action has been made to depend, has been set forth in the complaint. And if they had been the plaintiff could not have succeeded, for the reason that her marriage, and also her residence abroad at the time when this act is alleged to have been committed, would, preclude her from maintaining an action to obtain an absolute divorce. (Code Civil Procedure, § 1756.)

The case which she could present depending upon this misconduct would not be within either subdivision of this section, and accordingly that measure,of relief could not be awarded to her.

As her foreign marriage and residence prevent her from maintaining an action for an absolute divorce, the success of her suit is necessarily dependent upon the other class of cases provided for, as the facts have been set forth in her complaint. And they do disclose a case which would entitle her to a separation, if her residence in this State has been sufficiently prolonged to authorize her to commence such an action. Without this required residence, no suit, even for a separate maintenance, can be regularly prosecuted by her. And that was the construction which was given to the statute immediately preceding the adoption of the present provisions of the Code. And by that construction it was held that the wife could only secure a separate maintenance when a case was presented by her which would justify a decree of separation. (Atwater v. Atwater, 36 How., 431; Douglas v. Douglas, 5 Hun, 140; Davis v. Davis, 75 N. Y., 221).

And this construction has been expressly sanctioned by the present provisions of the law, for they restrict the powers of the court to “such an action” as has been provided for by the preceding sections of the same article, and that excludes all cases where the facts and circumstances are not such as to justify a decree of separation. (Code of Civil Procedure, § 1766.) To sustain the right of the plaintiff to a decree providing for her maintenance, or to an order requiring the husband, during the pendency of the action, to provide for her support, it must accordingly be made to appear that a case exists in her favor of the nature of one of those defined by these preceding provisions of the statute, and as the plaintiff has shown by her statements that she is not entitled to an absolute divorce, the facts must be such as would authorize a decree of separation to entitle her to succeed upon this appeal. And for that purpose it must appear that she was within one of the requirements prescribed as to residence .by section 1763, of the Code. For it is only in the cases so provided for that an action for a separation or separate maintenance, can- be maintained in this' State. It has been urged that such a right of action has been made to appear, because of the fact that both parties were residents of this State at the time when this action was commenced, and that is the literal effect of the first subdivision of this section. But it is very plain from the language in which the third subdivision of the same section has been enacted, that the first was not designed to be so broadly understood or construed. For by the latter subdivision the right of a party, situated as the plaintiff was, to maintain such an action when this suit was commenced, has been very clearly defined and.declared. Its language is that it may be maintained wherq the parties having been married without the State have become residents of the State, and have continued to be residents thereof at least one year, and the plaintiff is such a resident when the action is commenced.” The plaintiff’s case is very plainly within the language of this subdivision, and as the residence required to enable her to maintain her action has been so explicitly defined by it, the argument of her counsel that it may be included within the general terms of the first subdivision of the section, must be rejected as unsound. These two subdivisions may be somewhat inconsistent, but even if they are the clear and explicit terms of the latter require that to be -followed in this case in preference to the former. For by it the legislature has in effect declared that a person who was married out of this State, cannot maintain an action for a separation without a year’s preceding residence in this State. This restraint has been clearly created and expressed, and it cannot be disregarded because of the general terms made use of in the enactment of the first subdivision of the section. To maintain any action by her, whether it be for a separation or only for separate maintenance, which must be made dependent upon substantially the same facts, a year’s residence in the State was requisite before it could be lawfully instituted. Without that residence the action cannot be brought, as it has been prescribed it may be, by the provisions of the Code. And as it has not been so brought, the order from which the appeal has been taken was unwarranted and unauthorized. The order therefore should be reversed, with the usual costs and disbursements.

Davis, P. J., and Brady, J., concurred.

Order reversed, with ten dollars.costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CHARLES E. WHITE and Others, Appellants.

      Assignee — This bond may be joint and several — a decree against the assignee is prima facie, but not conclusive evidence against his sureties — the statute of limitations is suspended as to the assignor’s creditors while the estate is in the assignee’s hands — mere delay of a creditor will not exonerate the surety.

    It is no objection to a bond given by an assignee for tbe benefit of creditors, under section 8 of chapter 848 of 1860, that it is joint and several in its obligation instead of being joint only.
    In an action brought against the sureties to a bond of á general assignee, to recover an amount which he had been directed but failed to pay, the order made in the proceedings against the assignee is prima facie, but not conclusive evidence of his failure to faithfully discharge his duties arid account for all the moneys received by him.
    The statute of limitations does not run against the claims of the assignor’s cred itors while the estate remains unsettled in the'hands of the assignee, as against the sureties upon his bond.
    The mere delay of a creditor, to call an assignee to account until after he has become insolvent, will not relieve the sureties upon his bond from liability.
    Appeal from a judgment in favor of -the plaintiffs, entered on. a verdict- directed at the circuit.

      Thomas G. Bitch, for the appellants.

      Wilham Mitchell, -Jr., for the respondents.
   Daniels, J.:

The action was prosecuted against the defendant as the widow and next of hin of Charles E. White, who, together with two other persons, executed a bond on the 20th day of December, 1860, conditioned for the faithful performance by Palmer & Adams, as assignees under a general assignment, of their duties as such assignees, and that they should duly account for all moneys received by them. In 1868 the assignees were required to account for the assigned property and to make a settlement of their affairs in accordance with the provisions of the statute. The proceedings taken for that purpose were continued from time to time until the last day of December, in the year 1872, when a final order, or determination was made, adjudging the assignees to be liable to pay to tlie creditors, at whose instance the proceedings were carried on, the sum of $8,189.10. An execution was issued for the collection of this amount, which was afterwards returned unsatisfied; and on or about the 14th day of March, 1877, pursuant to an order directing the prosecution of the bond, this action was commenced upon it to recover the sum so directed to be paid.

The statute did not expressly declare whether the bond required to be entered into, to entitle the assignees to take charge of and close up the trust'estate, should be in form joint or joint and several. But it was in fact entered into by the persons executing it, in such terms as to render it joint and several. For this reason it has been urged that the bond was made broader than the law allowed it to be taken, and consequently that it imposed no obligation upon the persons executing it. But it does not follow from the fact that a joint bond would be a compliance with the requirements 'of the statute, that a bond joint and several would be invalid; for the statute has been framed in such language as to allow either form of bond to be a compliance with its provisions. They required that the assignees within thirty days after the date of the assignment should enter into a bond to the people of the State with sufficient sureties, conditioned for the faithful discharge of their duties and the due accounting for all moneys received by them. ' (Chap. 348, Laws 1860, § 3.) And this could as well be done by a bond joint and several in its obligation as by one that should be joint only. Under a statute enacted in this general language either form of bond may be resorted to and that would be a substantial compliance with what the legislature has required. This subject, under an enactment equally as general as that contained in this statute, was considered in Pickersgill v. Lahens (15 Wall., 141), and in the course of its determination, Mr. Justice Davis, who delivered the opinion of the court, made use of the following language: It is undoubtedly true, as words of severalty are not employed, that a. joint bond is a compliance with the law, but it by no means follows that a joint and several obligation is not an equal compliance with its terms. It is certainly not forbidden, and as the statute is silent on the subject the fair intendment is that either was authorized, and that the court had the right to direct which should be given.” (Id., 145.) And this statement of the construction which such a statute should receive, was repeated with approval in Wood v. Fisk (63 N. Y., 245, 249, 250). It was also again referred to in Davis v. Van Buren (72 N. Y., 587), and the principle received the further sanction of the court upon that occasion.

These are authorities clearly sanctioning the validity of this bond, although it would have been sufficient if the phrases declaring it to be joint and several had been omitted from it. Including them certainly was not such an addition as transcended anything, either declared by or to be inferred from the provisions of the statute under which the bond was given. And as the sureties voluntarily executed it in this form, they could have no good reason for claiming to be exonerated from the obligations assumed by them under it, because they might have objected to this particular attribute of it. By reason of the fact that the bond was so given, the assignees were permitted to exercise the authority over the trust estate which they would not have had were it not on account of this circumstance. And after securing them this right, the sureties themselves and "the defendants succeeding to the obligations of one of them should be held to.be estopped, upon the plain principle of justice, from denying their liability upon the bond.

On the trial of the action the proceedings taken by the creditors, which resulted in the determination made against the assignees, were allowed to be read in evidence. This was objected to, but that objection was properly overruled, for in the absence of anything indicating the determination to have been improper, it would form the measure and extent of the liability under the bond. As much as that was conceded to be the law in Thomson v. MacGregor (81 N. Y. 592). But during the course of the trial the defendants proposed to contest the extent of this liability by proof offered by them for that purpose, and that was rejected by the court, and to that decision an exception was also taken on behalf of the defendants. This bond differed .in the obligations created by it from those given 'by administrators, or executors, or parties obtaining injunction orders; for by the latter class of bonds the sureties bind themsplves to the effect that the principal will obey the orders or perform the determination which may be made against him. (3 R. S. [6th ed.], 73, § 7; Id., 82, § 56; Code Civ. Pro., § 611.).

While by the bond in controversy the sureties bound themselves

only for the faithful discharge, by their principals, of their duties as such assignees, and that they should duly account for all moneys received by them. These obligations were essentially different from those inserted in the other classes of bonds or undertakings, to which reference has been made. For neither in language nor by implication, did the sureties covenant or stipulate to be bound by the result of a proceeding against the assignees, to which they were not parties, and of which they had no notice. In this respect the bond was no broader than that in Thomson v. MacGregor (81 N. Y., 592), where it was held that the surety was not concluded by a determination establishing the liability of the receiver. The law upon this subject was carefully considered in Bridgeport Insurance Company v. Wilson (34 N. Y., 275), and the conclusions which were held to be warranted by the authorities were stated to include two classes of cases, the first; “ where the covenantor expressly makes his liability depend on the event of a litigation to which he is not a party, and stipulates to abide the result; and, second, where the covenant is one of general indemnity merely against claims or suits. To the latter class belongs the case now before us. In cases of the first class the judgment is conclusive evidence against the indemnitor, although he was not a party and had no notice, for its recovery is the event against which he covenanted. (Patton v. Caldwell, 1 Dall., 419.) In .those of the second class, the rule already stated applies, to wit: that the want of notice does not go to the cause of action, but the judgment is prima facie evidence only against the indemnitor, and he may be let in to show that the principal had a good defense to the claim.” (Id., 280.) These rules bear the complete sanction of the preceding case of Douglass v. Howland (24 Wend., 35). To bind the surety for the result of a suit or proceeding, to which his principal only may be a party, it is requisite that such should be the reasonable import of the covenant entered into by him, or of the law under which his obligation may have been contracted. Where neither of these circumstances appears, their adjudication at the most can be but presumptive evidence against the surety. That was this case as it was made out upon the trial, and the evidence offered by the defendants to show that the amount owing to the creditors prosecuting the proceeding was less than had been awarded to them, should have been received.

The recovery was further resisted,' upon the ground that the creditors’ demand was barred by the statute of limitations before the action upon the bond was commenced. And Gould v. Oayuga National Bank (86 N. Y., 75), together with other authorities, have been relied upon as supporting this defense. ' But they very vdearly fail to do that, for the assignees, by the terms of the general assignment, were invested with an active trust in the estate which it committed to their charge. This is clearly shown by the assignment itself, and that is assumed to be the nature and effect of such an instrument by the section of the statute already referred to prescribing the bond which must be given. • And as to parties invested with the management of the estates of others in that manner, the rule is well settled that the statute of limitations cannot, while the trust shall continue, be relied upon as a defense. (Angell on Limitations [3d ed.], §§ 166, 167, and cases cited in notes.)

Nothing was shown upon the trial relieving this case from the operation of this rule, and for that reason, in no view which could be taken of the provisions of the statute, did they operate as a defense in the defendants’ favor.

The offer which was made to pay these creditors, so far as their indebtedness was made the subject of preference by the terms of the assignment, did not appear to have extended far enough to create a defense. The person making it did not at the time have the means with him of performing the offer, even if it had been accepted, and under none of the authorities, therefore, could this amount to a tender of the debt. At least the proof left this part of the ease in such a condition that it cannot be consistently held that the debt was discharged by what was stated' to have taken place. (Clark v. Sickler, 64 N. Y., 231.)

It was further objected that the other creditors should have been joined in the proceeding taken for the accounting. But this was not required by the act of 1860, which provided that the judge, upon the petition of any creditor of the debtors, should have power to issue a citation or summons, compelling the assignees to appear before him and show cause why an account of the trust fund should not be made, and to decree payment of such creditors just proportional part of such funds. (Laws 1860, ch. 348, § 4.)

And this power remained practically unabridged at the time of the final hearing and determination of the proceeding which had been taken. (Laws 1870, chap. 92.) <

The fact that the creditors delayed the commencement of their proceedings until the assignees became insolvent formed no proper answer to the action, for the mere delay of a creditor to proceed. against the principal debtor, has been uniformly held not to be sufficient to relieve the surety from liability. (Cassidy v. Schedel, 9 Hun, 340.)

But one substantial ground of .error has been discovered in the case, and that arose upon the ruling of the court that the proceedings resulting in the settlement of the assignees accounts was conclusive upon the sureties in the bond. That ruling was in conflict with the authorities prescribing the rule of law applicable to this subject, and for that reason alone the judgment in the case should be reversed and a new trial ordered, with costs to the defendants to abide the event.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

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


text:
    GEORGE M. CURTIS and EDWIN M. NEVILLE, Respondents, v. FANNIE S. GREENE, Appellant.

      Motions — where they may he made — Code of Civil Procedure, sec. 769 — filing of motion papers and order— General Buies of Practice, Mb. 3.
    Section 769 of the Code of Civil Procedure, prescribing the districts in which motions, upon notice, in an action in the Supreme Court, must be made, applies only to such motions as are made during the pendency of, or which relate to the action, and not to such as maj' be made in proceedings instituted after the recovery and entry of a final judgment therein.
    The papers used upon a motion, so made after the entry of the final judgment, together with the order made thereon, must, however, be filed in the office of the clerk of the county where the judgment was entered, within ten days, or the order may be set aside as irregular, under the Third General Rule.
    Appeal from an order made at a Special Term, vacating a preceding order and restoring a judgment and the docket thereof.

      Close c& Robertson, for the appellant.

      E. M. JVeville, for the respondents.
   Daniels, J.:

As the motion which resulted in the order vacated by the order from which the appeal has been taken related to proceedings had under the judgment after it had been entered, it could regularly be made, as it was, in the county of 'Westchester, -although the judgment itself had been recovered and entered in the county of New York. For these proceedings were wholly had in Westchester county, and, being taken after the judgment, the motion affecting them was not therefore controlled by section 769 of the Code of Civil Procedure. As that has been construed in Phillips v. Wheeler (67 N. Y., 104), it included only such motions as are made during the pendency of or relate to the suit, and it in no manner affects or controls such as may be made in other proceedings succeeding its final determination by a judgment. For that reason, as well as the additional fact that the plaintiffs appeared upon the hearing of the motion, and made no objection whatever to the power of the court to entertain the motion, the court before which it was made had the power to hear and decide as it did. (Rice v. Ehle, 65 Barb., 185.) But as no other provision is made, either by statute or the rules of the court, than those contained in the third and fourth of the general rules, directing where the motion papers must be filed, it follows that the papers used upon the motion were required to be filed in the office of the clerk of the county of New York, where the judgment itself was entered. And as it was made to appear that this had not been done within ten days after the making 'of the order, the moving party, by the express language of Rule 3, lost the benefit of the order. And for the purpose of declaring that to be the effect of this omission, the motion could properly be made in the county of New York, for there was no law or rule restricting the right to make it to the county of Westchester. It was, on the other hand, a motion within the general powers of the court, and they were broad enough to allow it to be made, as it was, in the county of New York. (Rice v. Ehle, supra.)

The motion was brought to a hearing under an order to show cause on the eighteenth of August, but not served uptil the evening of the sixteenth, after the attorney on whom service was made had left his office. The intervening time was so short as to be unreasonable under the circumstances made to appear. For it required the attorney, upon one day’s notice served upon him at White Plains, to appear in the city of New York to contest the granting of the motion. But as the failure to file the papers, as the rule required that to be done, does not seem to have been capable of being excused, the order cannot be reversed simply because of this fact.

The omission to file the papers and enter the order in this county probably arose out of a misapprehension as to the effect of the rules. For the practice concerning motions made after judgment, not relating to any proceeding in the action, had been nowhere formally defined or declared. For that reason, while the order from which the appeal has been taken cannot be reversed, it should be modified in such a manner as to allow the moving party in the order which has been vacated to renew that motion upon the same or such further papers as may be served fqr that purpose. And because of the unreasonable shortness of the order to 'show causé this should be permitted to be done without costs of this appeal.

Brady, P. J., concurred.

Present — Brady, P. J., Daniels and Dwight, JJ.

Order modified as directed in opinion, without costs.


text:
    THE HOME INSURANCE COMPANY, Appellant, v. W. STEBBINS SMITH and EDMOND HUERSTEL, Respondents.

      Taking of lands by eminent domain — effect of, upon a mortgage toverring such lands a/nd other property — right of the owners of the equity of redemption to the award — they may charge it with the value of the services rendered by their attorneys in am attempt to inmase it — rights of the mortgagee and a purchaser undes' a foreclosure sale, in the aman'd.

    In February, 1873, J. B. Dunham died, seized of certain premises in the city of New York, which he devised to his widow, his two sons and a grandchild, as tenants in common. A portion of the premises were subject to a mortgage given by the testator in 1866. November 16, 1880, an order was made confirming proceedings instituted in 1877 by the city for opening a street, in which a portion of the mortgaged premises were taken and an award made therefor to the testator, then deceased. This order was affirmed by the Court of Appeals on October 18, 1881. In August, 1880, the mortgaged premises were set-off to “the two sons in an action brought to secure a partition of their father’s estate. In February, 1879, the two sons had entered into an agreement with the defendants, attorneys-at-law, by which they agreed to pay them thirty per cent of the amount of the decrease of assessments, or increase of awards, which they might be able to procure in the proceedings for opening the street.
    On April 9, 1881, the plaintiff commenced an action to foreclose the mortgage which had been assigned to it on July 3,1879. On June 30,1881, the premises described in the mortgage were sold under the foreclosure to the widow, subject to the proceedings for opening the streets, for more than enough to pay the amount due upon the mortgage, and on December 37, 1881, the referee’s deed therefor was delivered to her. On that day she assigned to the plaintiff, for a valuable consideration, the award for damages made by the commissioners.
    In an action brought by the plaintiff, the insurance company, to compel the payment to itself of the full amount of the award:

      Held, that upon the entry of the order of November 16, 1880, the city acquired title to the land taken, and the two sons acquired title to the amount of the award, subject only to the right of the mortgagee to resort thereto for the pay ment of any deficiency that might arise upon the sale of the residue of the mortgaged premises.
    That the respondents, the attorneys, acquired a lien upon the award by virtue of their agreement with the sons, and that the court properly directed the payment of the amount due to them therefrom.
    That the purchaser upon the foreclosure sale acquired no title to the award nor to any portion thereof.
    Appeal from an order directing the payment of the sum of $1,536.26, with interest from the 11th day of July, 1882, to the respondent Huerstel, out of an award, deposited by ordef of the court to the credit of this action, made in proceedings taken for opening and widening Morris avenue.
    The action was brought to recover the amount of an award for land taken by the city in opening a street. The action was severed and directed to proceed against the respondents herein, the relief sought by the complaint being granted as to the mayor, aldermen and commonalty of the city of New York and the other defendants. It appeared that on the 21st of May, 1866, one John B. Dunham purchased certain lands and premises in the city of New Yorlr, and to secure a part of the purchase-price of said premises, on the same day made, delivered and executed to -one Mortimer a mortgage thereon.
    On February 9, 1873, John B. Dunham died, leaving a last will and testament, by which he appointed his wife Mary Ann Dunham, and his son David II. Dunham, to be executors thfereof, and devised his residuary estate, including the said lots above mentioned, to his wife Mary Ann Dunham, his sons John B. Dunham and David H. Dunham, and his grandchild Annie P. Dunham, as tenants in common.
    On January 9, 1877, the department of public parks, on behalf of the mayor, etc., of the city of New York, instituted proceedings relative to the opening of One Hundred and Thirty-eighth street and other streets, in which the sum of $14,314 was awarded to John B. Dunham, as the owner of the portion of the mortgaged premises taken. An order confirming the proceedings was made November 16, 1880.
    On or about February 8, 1879, David H. Dunham and John B. Dunham made an agreement in writing with W. Stebbins Smith and Edmond Huerstel, attorneys and counselors-at-law, the defendants herein, by which they agreed to give to said Smith and Huerstel, as their attorneys, thirty per cent of the amount of the decrease of-assessments or increase of awards, in the proceeding for opening and widening Morris avenue, above mentioned, from the amount of assessments or awards established in the first instance by the commissioners, in consideration of services to be rendered by said Smith and Huerstel, as their attorneys in procuring such increase of award and decrease of assessment.
    On the 3d July, 1879, the bond and mortgage of John B. Dun-ham to William Y. Mortimer was duly assigned for a good and valuable consideration to the Home Insurance Company. -
    On the 22d November, 1879, the devisees under the will of John B. Dunham began an action- to partition the lands held in common by them, and on the 7th of August, 1880 judgment of partition was entered by which the mortgaged premises were set apart in severally to David H. Dunham and John B. Dunham, as tenants in common, subject to the lien of the mortgage then held by the Home Insurance Company.
    On April 9, 1881, the Home Insurance Company commenced an action to foreclose the mortgage made by John B. Dunham to Mortimer, which had been assigned to the company on July 3,1879.
    On the 20th June, 1881, the mortgaged premises were sold to 'Mary Ann Dunham for $20,100, subject to the proceedings theretofore had or then pending for opening and widening Morris avenue, or to any charge or incumbrance thereon arising out of' such proceedings.
    The Home Insurance Company had no notice of the agreement between David H. Dunham and John B. Dunham and Smith and Huerstel prior to the commencement of the foreclosure above-mentioned.
    On the 27th day of December, 1881, said referee delivered to-said purchaser a deed of the said premises, and on the same day she executed an instrument purporting to assign to the plaintiff, for a good and valuable consideration, the award for damages.
    Judgment having been entered in this action in favor of the-defendants, an order was subsequently made directing the payment of the amount due to them from the award, deposited to the credit of this action as above stated, and from that order this appeal was taken.

      William Allen Butler, for the appellant.

      Abram Kling, for the respondents.
   Daniels, J.:

The property out of which the money in controversy has arisen, was in his lifetime owned by John B. Dunham. In May, 1866, he executed a mortgage upon it to secure a part of its purchase-price. In February, 1873, he died, and by his will devised this property to his widow, his two sons John B. and David TL- Dunham, and his grandchild Annie P. Dunham, as tenants in common. And by a proceeding in partition which resulted in a judgment in August, 1880, the land described in the mortgage was set off to the two-sons David H. and John B. Dunham. Before this partition was made, and in January, 1877, the department of public parks on behalf of the mayor of the city of New York instituted proceedings for opening and widening Morris avenue and appropriating to that object a part of the property included in the mortgage. These proceedings on the 16th day of November, 1880, and after the entry of the judgment setting off this property to David H. and John B. Dunham, were confirmed by the Special Term of this court and they included an award amounting to the sum of $14,314 for so much of the property as was required for the purposes of this avenue. As David H. and John B. Dunham had prior to that time acquired the title through the judgment in partition to the property, it followed that this award became payable to them, subject only to the payment of the mortgage still remaining a lien upon the residue of the property. And under the well settled principles of equity, the latter was required to be first sold to realize and pay the mortgage indebtedness before this fund could properly be resorted to for that purpose. The principle applicable would seem to be the same as that which governs the partial alienation of property mortgaged, and that is, that the party holding the mortgage shall first resort to the portion of the property still vested in the mortgagor, his heirs of devisees before that which may have been alienated can be sold or appropriated for the satisfaction of the mortgage debt. For in no other practicable manner could the amount be certainly ascertained which should be paid out of the fund upon the debt. By the confirmation of the award included in the commissioners’ report, the part of the property taken for opening and widening the avenue became vested in the city. (Matter of Opening Eleventh Avenue, 81 N. Y., 437, 453). And this award was substituted for it. The fact that an appeal was taken from the order of confirmation and prosecuted until a final decision was obtained upon it, on the 18th day of October, 1881, in the Court of Appeals, in no manner changed the effect of the confirmatory order. For by the final decision made that order was affirmed, and it consequently was left in full force and effect as it had been made by the Special Term in November, 1880. These proceedings therefore had as completely changed the title to so much of the land as was required for the avenue, as a voluntary conveyance of it, executed by David II. and J ohn B. Dunham to the city would have done. And as they were at the time of the entry of the confirmatory order, the owners of the property, it followed that the award was payable to them,, subject only to the previous satisfaction of the mortgage. To that extent and to that extent alone the lien of the mortgage was removed from the land and attached to the award made payable because of its appropriation. And for that reason the assignment of the mortgage by the mortgagee to the plaintiff, and its subsequent foreclosure and the sale had under it, entitled the purchaser to no more of the property than that remaining after excluding what was required for the street. That was all the land that the mortgage continued an encumbrance upon, after the residue had been devoted to a public purpose, and in case that failed to produce the mortgage debt the plaintiff, in that event, was entitled to resort to the award to make up the deficiency, but it had no other right or authority over it.

The result of these considerations is that the purchaser, under the foreclosure judgment, obtained no title whatever to the award made for the land taken for the avenue; for having been acquired by means of the proceedings taken by the city, it was no longer liable 'to be sold under the mortgage.

The lien upon it was divested and transferred to so much only of the award as might be required to extinguish it; and accordingly the assignment of it by the purchaser under the judgment gave the plaintiff no legal right to the money in controversy. The circumstance that the title conveyed by means of a foreclosure is that encumbered by the mortgage at the time when it was given, will not change the rights of the parties in this respect. For the part of the land itself for which the award was made, was as completely excluded by the proceedings from the mortgage as though it had never been encumbered by it.

The rights of the parties, after-that, were confined to the fund and not to the property out of which it originated. And the extent of that to which the plaintiff succeeded as the assignee of the mortgage was limited to the amount of money required for the payment of the mortgage debt after the sale of the remaining portion of the property.

The right to the balance of the award, vested in the person owning the equity of redemption. By virtue of their title, this money belonged to them, at least so much of it as would remain after the payment of the mortgage debt. That followed necessarily from the fact that they owned the property at the time when it was appropriated by virtue of the order confirming the report, subject only to the payment of this mortgage.

After the proceedings were instituted for opening and widening the avenue and in February, 1879, while they were pending, David H. and- John B. Dunham entered into an agreement with the respondents, by which they agreed to pay them thirty per cent of the amount of the decrease of assessments or increase of awards in the proceeding for opening and widening the avenue, for the services to be rendered by them in procuring such increase of award and decrease of assessment. Under this employment the respondents devoted their services to the reduction of the assessments and the increase of the awards, and in that manner they obtained a material reduction of assessment upon other lots owned by the Dunhams, and an increase in the amount of the awards themselves. These changes under the terms of the agreement entitled the respondents to the amount directed to be paid to them by the order from which the appeal has been taken. For nothing has been made to appear justifying a presumption that their claim to this payment was not a meritorious one or not fully justified by the circumstances found to have been proved. It is true that when the agreement itself was made the parties making it were only' authorized to charge their half of the fund to be created by the award, but that circumstance in no manner affects the respondents’ right to this compensation. For before the fund itself was created they acquired the remaining interest in the property, for the taking of which it was awarded, and thereby subjected it wholly to the terms of their agreement. They became the sole owners of the fund, subject only to the lien of the mortgage upon it for the payment of the amount remaining after the sale of the residue of the property included in the mortgage.

And by virtue of that title they were legally authorized to subject it to the charge created upon it by the agreement which they made. So much of it certainly as is required to satisfy the claims of the respondents under the terms of this agreement was not required for the satisfaction of the mortgage, and from the facts as they have been made to appear, and the legal principles applicable to them, the order from which the appeal has been taken appears to have been clearly warranted.

It should therefore be affirmed, with the usual costs and disbursements.

Davis, P. J., and Beady, «I., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Bbady, J. :

text:
    EDWIN T. RICE, Respondent, v. PATRICK CHILDS, Appellant, Impleaded, etc.

      Costs — the defendant is entitled to them, when the recovery is for less than fifty dollan's— Code of Civil Procedure, sec. 3228, sub. 4 — Appeal, from what it should be taken.

    In an action brought to recover the sum of seventy-seven dollars and fortv-five cents, the plaintiff received from the defendant, before the latter had answered, the sum of fifty-five dollars on account of the amount due, the defendant promising to pay the balance at a time named, if the plaintiff would extend the time of payment to that date. After that date the defendant failed to pay the balance, and served an answer setting up the payment made, and demanding a dismissal of the complaint, with costs. Judgment for the balance due having been ordered for the plaintiff upon an application to have the answer stricken out as frivolous:

      Held, that as the judgment was for less than fifty dollars the defendant was entitled to recover costs.
    That the appeal was properly brought from an order refusing a motion for retaxation of costs, and that it was not necessary to appeal from the judgment.
    Appeal from an order made at a Special Term, in so far'as it awards costs to tbe plaintiff in excess of tbe costs of tbe motion, and from an order denying a motion for a retaxation of costs.

      Edward 8. Peck, for the appellant.

      Echoin T. Pice, for the respondent.
   Bbady, J. :

This action was commenced by the service of a summons and complaint on tbe defendant Childs on March 24, 1882, and was brought upon an undertaking given by Henry Brewster, on appeal from a judgment of the Marine Court to the court of Common Pleas, to secure the costs and damages only of such appeal. The undertaking was executed by Henry H. Waters and Patrick Childs. Waters resided in Rockland county and Childs in New York. Under the judgment in the' court of Common Pleas and to which the undertaking related, the respondent recovered seventy-seven dollars and forty-five cents costs, and judgment was thereupon duly entered in the Marine Court in February, 1882, and notice of the entry of such judgment served upon the attorney for the appellant in the action in the Marine Court. Some days after this action was commenced and before the defendant Waters was served with process, Childs called upon the respondent, and stating that he wished to settle the. action, said he would pay the respondent fifty-five dollars on account and the balance on the first of May following, if the respondent would extend his time for payment to that date, which Rice agreed to do and received the payment on account. The appellant failed to comply with this agreement and served on the fourth of May an answer to the complaint which appears to have been verified on the 21st of March; 1882, setting up the payment of fifty-five dollars made on the 6th of April, 1882, in pursuance of the agreement of settlement, and therefore while the action was pending, and at the same time the attorney for the appellant served a notice of trial for the June circuit. It appeared also that at the same time and by the same messenger Mr. Brewster,-who occupied the same offices with the appellant’s attorney, served on the respondent an answer for Waters, the other defendant, alleging the same payment, and a notice of trial for the June circuit, although no attempt had been made to serve Waters with the summons and complaint.

Upon this state of facts the respondent moved for judgment against- the defendant Childs for the balance due with costs as of the date at which the payment of fifty-five dollars was made under the proposed settlement of action, and his motion was founded upon section 537 of the Civil Code and rested upon the ground that the answer put in by the defendant Childs was frivolous. The motion was successful, and the plaintiff obtained and entered the judgment in pursuance of the order made upon his motion for the balance due, namely, twenty-three dollars and seventy cents and also for the costs and disbursements of the action, which amounted to twenty-eight dollars and fifty-nine cents.

It also appears that at the time the respondent’s costs were adjusted, Mr. Brewster attended before the clerk on the part of the defendant, and insisted that the clerk should refuse to tax the respondent’s bill and should tax the bill in favor of the defendant, but the clerk disregarded Mr. Brewster’s request and taxed the costs as directed by the order for judgment. The appellant thereupon staid the respondent’s proceedings under the judgment by an order duly obtained, and moved for an order disallowing the plaintiff’s costs and directing the clerk to -tax the. defendants/ costs; which motion was denied with ten dollars cost.

The notice of appeal served in this case was from the order of the 23d of May, 1882, so far as it ordered and awarded costs except the costs of the motion in favor of the plaintiff, and also from the order made at Special Term on the Jl5Üi of June, 1882, denying the motion for a retaxation of the costs and from every part thereof. The order of May 23, 1882, alluded to in the notice of appeal, was the order for judgment for the balance due to which reference has already been made. It will have been perceived that there was no appeal from the judgment, which appears to have been entered before the application for a retaxation of the costs was made.

The question presented in this case is, which of these litigants is entitle to costs. At the time of the payment of the fifty-five ■ dollars no condition was iihposed upon its receipt and no reservation made of any rights accrued or to accrue. . It was .an absolute and unqualified payment on account of the demand. Section 3228 of the Code of. Civil Procedure declares by its fourth subdivision that in an action in which the complaint demands payment of a sum of money due, the plaintiff is 'not entitled to costs unless he recover the sum of fifty dollars or more. In this case he has not recovered by judgment fifty dollars. The sum recovered was twenty-three dollars and seventy-nine cents which was the balance due after the payment of fifty-five dollars on account. There are two decisions against the right of the respondent to recover his costs reported in Howard’s Practice Reports. In the case of Bendit v. Annesley, decided by the General Term of this department and reported in 27 Howard’s Practice, 184, it appeared that after the action was commenced by service of the-summons and complaint on the defendants a check was sent to the plaintiffs in a letter for an amount which was equal to the face of the note, the interest and the cost of protest. There was no payment of costs and no tender of payment. Subsequently the plaintiff advised the defendants that the check sent would not settle the action and that the costs must be paid. The defendant answered in the action, however, pleading payment, and the issues on trial by the court resulted in a dismissal of the complaint. And it was held in that case that the answer was good although it demanded that the complaint might be dismissed and with costs; and it was said'that if the plaintiff meant to insist on payment of the accrued costs'he should have' refused to receive the payment of the debt unless the whole costs were paid. And the judgment was affirmed.

In the case of Keeler v. Van Wie (49 How. Pr., 97), which was a similar case, the papers were there served on the defendant, and after that incident, without imforming him that suit was commenced, he paid to the book-keeper of the plaintiff the amount due and took his receipt. The plaintiff on being advised of this notified the defendant that he would not receive the*money unless the costs of the suit were paid. The demand was not complied with by the defendant and the pleadings presented the question of payment. It was said in that case that after the suit was commenced the plaintiff was entitled to his costs, and the payment to his clerk, without the disclosure of the existence of a suit, would not be a valid one. Such payment, however, having been made to the clerk of the plaintiff, the latter had the option to accept it or not. If he did accept it and take the money from the person to whom it was paid and appropriated it to his own use he thereby ratified the manner of the payment, and the plaintiff having used the money he could have no judgment for there was nothing due to him. It was ^further said that costs followed the debt; if the latter has been extinguished no costs can be recovered. Of similar purport is the case of Toll v. Hiller (11 Paige, 228).

The principle governing such a case as this is, that costs follow the debt; and the plaintiff'having accepted the sum of money reduced his claim below fifty dollars and was not entitled to any costs. He might have protected himself from such a result by reserving his costs, or by accepting the money on condition that it was in no way whatever to affect his right under the judgments to the full amount, but that he should credit the defendant upon the execution with the amount which he had received on account of the debt alleged. The plaintiff has failed to protect himself by this or any other device and is not entitled under ..the statute to costs, because at the time that he took judgment he could not recover the sum against the defendant which was necessary in order to secure them.

It was not necessary to appeal from the judgment in this case to present the question whether the defendant was entitled to costs or not. The objection to the allowance of costs to the plaintiff was made at the time of taxation and the defendant then insisted upon his right to recover them, and that question, was presented on a proper motion and disposed of adversely to the defendant. From the order announcing that result he had the right to appeal. It is not understood how this can be gainsaid. The judgment was not assailed, because the amount recovered was conceded to be correct. The right to costs is a substantial one and the subject of review. (Hoe v. Sanborn, 36 N. Y., 93.) The ways and means of the defendant in this case, however, are such that no costs should be. allowed him on this appeal.

The order appealed from is reversed, therefore, without costs.

Davís, P., J., and Daniels, J., concurred.

Order reversed, without costs.


author: Daniels, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LIZZIE ELLEN WIGGINS, Appellant.

      Evidence — trial upon an indictment for larceny — when the person from whom the property was taken need not be produced, to show that the property was taken without her consent — what is sufficient evidence of the identity of the person from whom it was talcen, with the person cha/rged to be 'the owner in the indictment.

    Appeal from a judgment, entered in tlie Court of General Sessions of the county of New York, by which the defendant was convicted of the crime of larceny from the person and sentenced to imprisonment in the New York penitentiary for the term of five years.
    The court at General Term said: “ By the indictment the defendant was charged with having feloniously stolen from the person of Catharine Curtis, treasury notes, bank notes and coin amounting to the sum of about twenty-one dollars and fifty cents; and for the purpose of proving the truth of the- charge it was shown that she had taken from a reticule in a lady’s hand in Macy’s store a pocketbook containing ten dollar’s in bills and one dollar and ten cents in silver. This was taken apparently without the knowledge of the person having the reticule, and upon her detection, which immediately succeeded the taking, the conduct of the defendant was such as must have led the jury to the conclusion that she intended to steal the pocket-book and its contents. The person charged by the indictment to have been the owner of the property was not produced as a witness upon the trial, and substantially because of the absence of her testimony that the pocket-book had not been taken against her will, it was objected that the evidence was so deficient as not to justify a conviction of the defendant. But it was not necessary for this purpose that this person should be produced as a witness upon the trial, for the facts that the property was taken' without her consent and that the defendant intended to steal it could be established by the circumstances appearing to have attended the taking if they were sufficient, as they appear to have been, to convince the jury beyond a reasonable doubt that they were as they had been alleged to be in the indictment. The law does not íequire for either of these purposes that the person whose property may have been stolen shall be produced and sworn as a witness. (2 Bishop’s Crim. Pro. [3d. ed.], § 152.)

      “ Even where it has been required to be stated as an attribute of the offense that the act was committed without the consent of the owner of the property, it has still been held that this want of consent could, be inferred from the circumstances attending and following the commission of the act.
    “ Rex v. Hazy (2 Car. & P., 458). In this case the indictment was for lopping and topping an ash tree without the consent of the owner. And the rule already stated was held to be properly relied upon to justify a conviction although the owner himself was not produced as a witness in the case.
    “ Rex v. Allen (1 Moody C. C., 154), is precisely the same in its effect. There the charge was that the prisoner had- killed a deer without the consent of the owner, and upon a case reserved it was held by the twelve judges that a convicti.on was rightly had without calling the owner to prove the want of consent..

      “ It was further objected that it was not shown that the person from whom the pocket-book wa« taken was the. Catharine Curtis named in the indictment. But it appeared that she gave that as her name in the store after the defendant had been detected s in taking the pocket-book, and also swore to it before the committing magistrate; and her son-in-law who identified the pocket-book to be the same as the one which had been taken and was produced upon the trial, testified that he gave it to her, and saw it in her possession on the day on which it was taken. It may have been true that she gave this pocket-book to some other person, and that it was taken from the possession of that person by the defendant, as her counsel has argued the fact to be, but a mere possibility of this nature is not sufficient to justify the conclusion that the question of the identity of this individual with the person named in the indictment was not a proper one for the consideration and decision of the jury. The prosecution were not bound to prove beyond the possibility of doubt that she was the person mentioned in the indictment, but evidence from which that could be inferred to be the fact beyond a reasonable doubt was all that the law required. The identity of the name itself was quite decisive as to the identity of the person. (People ex rel. Haines v. Smith 45 N. Y., 772, 779.)
    “ And that together with the other evidence in the case left no reasonable ground from which if could have been supposed that the Catharine Curtis named in the indictment was any other or different person than that of the person from whose possession the property had been taken in the store.”

      William F. Howe, for the appellant.

      A. J. Pequier, for the respondent.
   Opinion by

Daniels, J.;

Brady, P. J., concurred.

Present — Brady, P. J., and Daniels, J.

Judgment affirmed.


author: Brady, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WALTER H. CHASE, Appellant.

      Indictment for bigamy — when the prisoner is estopped from denying the identity of the person he hap married — prohibition against second ma/rriage in a judgment for divorce — it is penad and has no exira-temitorial effect.

    Appeal by the defendant from a judgment in the above entitled criminal action, entered in the Court of General Sessions.
    The defendant was indicted for the crime of bigamy. Upon the trial the prosecution proved, that the prisoner was duly married to Florence Adele Strong, at Alexander, Genesee county, in this State, on the 25th of December, 1867; that thereafter, and on the 22d of February, 1876, the appellant married the complainant Mary Sandford, in Springport, Michigan, and that the parties thereafter cohabited as man and wife; that subsequently, during the continuance of that marriage and the lifetime of his wife by such second marriage, the appellant married one Alice E. McElroy, in the city of New York on the 1st of October, 1881, which marriage was celebrated by the Rev. Dr. Collyer at his residence No. 137 East Thirty-ninth street, upon a statement previously made to bim by the appellant that he was a single man, resulting either from a divorce or the death of his former wife.
    At the close of the evidence for the prosecution the appellant’s counsel requested the court to instruct the jury to acquit, on the ground that'there was not sufficient proof that the defendant was married to Alice E. McElroy, as charged in the indictment; and, second, that there was not sufficient proof that the person to whom the prisoner was married was the person named. The motion was denied and the defendant’s counsel excepted.
    The appellant then took the stand and testified that he was married to Florence Adele Strong, as already shown, and further that she waiving on the 22d of February, 1876, and had always lived in thisWate up to within two years of the time of his examination on the trial to his knowledge. A series of questions was asked him on cross-examination which he declined to answer, upon the ground that such -an act would tend to degrade, disgrace or criminate him. In response to the proof thus given on behalf of the appellant, the district-attorney put in evidence the record of the proceedings and judgment in an action for divorce on the ground of adultary, brought against the defendant by his wife Florence A., commenced in 1875 and concluded by a decree dated February 11, 1876, and which decree was in the usual form prohibiting the defendant from marrying again until his wife was actually dead.
    The defendant’s counsel objected to the introduction of this record upon the ground that it was incompetent, immaterial and irrelevant, and further, that the decree appeared to have been granted and the marriage annulled, because of the adultery of the defendant therein, and that he was by the decree forbidden to marry-during’the lifetime of the-plaintiff, and his marriage during that period was declared to be void by the statute in the State; that there was no evidence in this case to the contrary, and therefore the presumption was that the law of Michigan was the same as that of the State of New York; that no person who had been convictfed of that offense could marry during the lifetime of a former husband or wife; and that consequently the marriage between Mary Sand-ford and the defendant, on - the 22d of February, 1876, in the State of Michigan, was void. The court overruled the defendant’s objection, and admitted the decree and the papers in evidence; to which ruling the defendant’s counsel'excepted.
    The court at General Term said: “ The objections to the manner of the proof and to the sufficiency of the evidence given to establish the identity of Alice E. McElroy were not well taken. The clergyman who performed the marriage ceremony, namely, Mr. Collyer, knew the áppellant and had seen Mary Sandford with him in the west, and as his reputed wife, and he knew that she was not the person between whom and the appellant he was asked to perform the marriage ceremony. The woman who was brought to Mr. Collyer by the appellant answered the questions which are authorized by statute (3 R. S. [6th ed.], 148,149) to be asked, and said that her name was Alice E. McElroy, and by such name she signed the certificate in conjunction with the appellant and in his presence. The examination of each of the parties was made in the presence of both, and as the ceremony is one authorized Sy law, and as he brought the woman to Mr. Collyer for the purpose of having the marriage celebrated, he must be regarded as representing her to be the person she described herself to be, and as indorsing or verifying her statements in this regard. The people should not be called upon in such a case to prove on such a subject more than was done herein, including the statement and conduct of the prisoner at the time of the marriage, to make out a prima, facie case, and to throw upon him the burden of disproving the truth of the statement as to the name of the woman if he should be allowed the privilege of assuming it for such a purpose. No doubt is entertained, however, that he should under such circumstances as detailed be estopped from showing that'the name given was not the proper one, inasmuch as it is the marriage with a person other than an existing wife which forms the gravamen of the charge, no matter what her name may be. The exaction of proof of identity as to name rests upon a rule of pleading, and requires proof that the name of the person, as alleged in the indictment, should be given, but when the accused is shown to have participated directly in a legal proceeding by which the name is to be ascertained and is pronounced, the evidence is given and the rule is satisfied. This should be the law and it is believed that it is. (Rex v. Edward, Russell and Ryan’s Crown Cases, p. 283.) In that ease it was held that if the prisoner wrote down the names for publication of tbe bans, he would be precluded from showing that the woman was not known by the name he gave, and that she was not rightly described by the name in the indictment. This case is considered conclusive in principle and justice. “ These views disposed of the objections relating to the questions of identity, and to the sufficiency of the evidence and the manner of giving it, introduced to establish the marriages charged against the appellant.
    Notwithstanding this result, however, the appellant contends that the marriage with Mary Sandford was void because his former wife Florence Adele was living when it was contracted, and this'although a divorce had been obtained, because the decree prohibited him from marrying again. The answer to both of these propositions is, that when the marriage took place between Mary Sandford and the appellant a divorce had been legally declared between him and his first wife, and that divorce, although it prohibited him from marrying again, had no force beyond the jurisdiction of the State. All doubt about the validity of such a marriage, entered into beyond the limits of the State, has been set at'rest by a decision of the court of last report. (Van Voorhis v. Brintnall (86 N. Y., 22).
    “ It is not to be presumed either, that the law of the State of Michigan, where the marriage with Mary Sandford took place, is the same as that which prevails here. Whatever presumptions of this kind may exist they do not embrace penal statutes (Harris v. White, 81 N. Y., 544), and our statute is penal. (Van Voorhis v. Brintnall, supra.)

      “ There can be no doubt about the admissibility of the decree of divorce between the appellant and his first wife. It was in response to his proof of the marriage between him and her which he used as a shield, and which demonstrated that it had been dissolved. The propriety of admitting it under the circumstances eannot be questioned.”

      John 0. Mott, for the appellant.

      A. J. Regular, for the respondent.
   Opinion by

Brady, P. J.;

Daniels, J., concurred.

Present — Brady, P. J., and Daniels, J.

Judgment affirmed.