text:
    Mary G. Bell v. Frederick A. Bell.
    (Supreme Court, Appellate Division, Fourth Dept.
    April 18, 1896.)
    1. FOBEIGN JUDGMENT—COLLATEBAL ATTACK.
    A defendant who was not personally served with process and never appeared in an action against him in a foreign state may attack the judgment rendered therein, on the ground that the court never acquired jurisdiction.
    2. Divoboe—Effect of Fobeign dbcbbe.
    A decree rendered in a state of which neither party was a resident, but to which plaintiff went for the sole purpose of bringing the suit, is not binding" on defendant in the state of her residence, where she was not personally served with process and did not appear in the action.
    Appeal from judgment on report of referee.-
    Action by Mary G-. Bell against Frederick A. Bell for divorce. There was a judgment in favor of plaintiff, and defendant appeals.
    The action was brought to obtain a divorce on statutory grounds. December 22, 1894, this action was begun by the personal service of the summons and complaint on the defendant, at the city of Buffalo, for the purpose of obtaining a judgment of divorce on the ground of his alleged adultery. The defendant appeared and filed an answer in which he denies the commission of the acts of adultery alleged in the complaint, and sets up two affirmative defenses: (1) That on the 8th of January, 1895, the marriage of the parties was dissolved by thee ourt of common pleas of the county of Jefferson,'in the-state of Pennsylvania (2) that at a time arid Diace mentioned the plaintiff committed adultery, which is set up as a defense and as a counterclaim. The plaintiff replied to the answer, denying the allegations of adultery, therein, and alleged that neither she nor her husband was ever a resident or citizen of the state of Pennsylvania; that she was not served with process in the action in Pennsylvania, did not appear therein; that the court never acquired jurisdiction of the parties; and that the judgment entered was void and of no effect, as between them, for the want of jurisdiction. The issues were referred to a referee to hear and determine, who reported that the defendant had committed adultery, as alleged in the complaint,
    but that the plaintiff had not, as alleged in the answer. It was also found that when this action was begun both of the parties were residents of this state, and that the defendant in this action was not a resident of the state of Pennsylvania while his action was being prosecuted in that state, but was a resident of New York, and that the defendant in that action (the plaintiff in this) was not served with the process in Pennsylvania, and did not ap-
    pear in the action. Upon these facts, and on evidence of the value of the defendant’s estate and the amount of his annual income, a judgment of divorce was granted to the plaintiff, with alimony at the rate of $3,000 per year. January 24, 1878, the litigants were married at Bloomington, 111., at which time the plaintiff resided at that place, and the defendant at the city of Rochester, N. Y. For about two years after their marriage they resided at Rochester, and then moved to Buffalo, where they lived as husband and wife until September, 1882, when the plaintiff left the residence of the defendant, and returned to the home of her mother, at Bloomington, 111. From September, 1882,, until Hovember, 1894, she lived with her mother at Bloomington, except that during that period she went on three occasions to Europe, at one time remaining thirteen months. In Hovember, 1894, she and her mother went to Brooklyn, where they remained until
    March, 1895, when the plaintiff took up her residence at the ■Cambridge, in the city of New York, where she has since resided. April 9,1894, the defendant in this action began an action in the •court of common pleas of Jefferson county, Pa., against the plaintiff in this action, for a divorce; alleging as a ground that he was a resident of that state, and that she had deserted him. An original subpoena was issued on the 10th of April, 1894, to the sheriff, who made return that the defendant could not be found. On the 17th of May, 1894, an alias subpoena was issued, and delivered to the sheriff, who in September, 1894, returned that the defendant could not be found. On the 14th of September, 1894, a pluries subpoena was issued, requiring the defendant to show cause on the second Monday (10th day) of December, 1894, why a divorce should not be granted. This subpoena, pursuant to the -order of the court, was published for four successive weeks in the Brookville Republican, in the issues of October 17,1894, October 20, 1894, October 31, 1894, and November 7, 1894. December 1, 1894, the pluries subpoena was inclosed in a postpaid envelope, and addressed, “Mrs. Mary G. Bell, Bloomington, Ills.,” and deposited in the postoffice at Eeynoldsville, Pa., which was duly received at Bloomington, 111., and forwarded by the postoffice authorities to the plaintiff at Brooklyn, N. Y., where she received it December 4,1894. The same day on which the pluries subpoena was mailed to the plaintiff, the examiner appointed to take the evidence in the case mailed a notice to her, at Bloomington, 111., that he would attend to -the duties of his appointment December 4, 1894, which notice she received at Brooklyn, N. Y., December 4,1894,—the day appointed to take the evidence. In December, 1894, the evidence offered by the plaintiff in that action was taken before the examiner, who reported it to the court; and January 8, 1895, a judgment was entered by the court of common pleas of Jefferson county divorcing the litigants. This judgment was entered seventeen days after the service of the summons and complaint in the case at bar.
    Henry H. Seymor, for app’lt; Charles B. Wheeler, for resp’t.
   FOLLETT, J.

The plaintiff, not having been personally served with process, and never having appeared in the action prosecuted in the court of common pleas of the state of Pennsylvania, had the right to attack the judgment rendered by that court, on the ground that it never acquired jurisdiction over her, and also on the ground that the plaintiff in that action was not a citizen of Pennsylvania; and it wras competent to support her contention by oral and documentary evidence. The recitals in the Pennsylvania judgment were not conclusive or binding on her. Thompson v. Whitman, 18 Wall. 457; Kerr v. Kerr, 41 N. Y. 272; Cross v. Cross, 108 id. 628; 13 St. Rep. 470; Rigney v. Rigney, 127 N. Y. 408; 25 St. Rep. 179; Van Fleet, Coll. Attack, §§§ 388, 389, and cases cited. It is not asserted that the plaintiff in this action ever resided in Pennsylvania, or that she was personally served with process in that state, or that she appeared in that action; and the evidence is ample to sustain the finding of the referee that the defendant in this action was not a resident or citizen of Pennsylvania, but went there solely for the purpose of instituting and prosecuting his suit for a divorce. These facts being well found, it is settled by a long line of authorities in the courts of this state that the judgment of the court of common pleas of Pennsylvania is not binding on the plaintiff, and is not a bar to her action for a divorce. Kerr v. Kerr, 41 N. Y. 272; Kinnier v. Kinnier, 45 id. 535; Hoffman v. Hoffman, 46 id. 30; People v. Baker, 76 id. 78; O’Dea v. O’Dea, 101 id. 23; Jones v. Jones, 108 id. 415; Cross v. Cross, 108 id. 628; 13 St. Rep. 470; Rigney v. Rigney, 127 N. Y. 408; 25 St. Rep. 405; same case, sub. nom. Laing v. Rigney, 160 U. S. 531; 16 Sup. Ct. 366; Williams v. Williams, 130 N. Y. 193; 25 St. Rep. 183; Atherton v. Atherton, 8 2 Hun, 179.

It was shown that the defendant has an estate of the value of more than $300,000, and is in the receipt of a large annual income. During the married life of these parties the defendant owned, and they occupied, an expensive home, handsomely furnished; kept horses, carriages, a butler, a coachman, and a number of servants; and the sum allowed to the plaintiff for alimony, with the income of her estate, will not enable her to live in the same style and position that she did during her married life. The defendant gave no satisfactory evidence of the amount of his estate, and we thing the estimate of the referee of its value and of defendant’s income a conservative one, and that the sum allowed for alimony is not excessive.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: DAVY, J.

license: Public Domain

text:
    William Brooks v. Charles Tayntor et al.

    (Supreme Court, Special Term, New York County.
    July, 1896.)
    1. Cemeteries—Lien on grave stones—Service oe notice.
    Under Laws 1888, chap. 543, which gives a lien for the purchase price on any monument or other structure erected in a grave yard, and provides that the seller shall file notice of his- lien with the superintendent in charge of the grave yard, and that the superintendent shall forthwith notify the owner of the lot, and that, if the amount is not paid within sixty days, the seller may remove the monument or structure, service of notice on the owner of the lot is not sufficient where it appears that the superintendent merely directed the' seller’s agent to deliver a copy of the notice to the-owner of the lot, and the copy did not state when or where the lien, was filed.
    S. Constitutional law—Lien on grave stone.
    Laws 1888, chap. 543, giving a lien for the purchase price on any monument or other structure erected in a grave yard, and providing that the seller may remove it if the price is not paid within a certain time, after service of notice of lien on the superintendent of the burial ground, who is required to notify the owner of the lot, authorizes the taking of property without due process of law.
    Action for an injunction. Judgment for plaintiff.
    Alexander Thain, for pl’ff; Hugo Hirsh, for def’ts.
   DAVY, J.

This action is brought to restrain the defendants from removing a granite monument from plaintiff’s burial plot in Greenwood Cemetery, which was erected in memory of his deceased wife and daughter. The monument was sold and delivered by the defendants to the plaintiff in 1893, for the sum of $1,850. The amount due and unpaid of the purchase price at the time of the commencement of this action was $1,363.67, with interest thereon from August 10, 1894, for which last-mentioned sum the defendants claim a lien upon the monument, under chapter 543, Laws 1888. The act, in terms, declares that every person, firm, corporation, or association that shall hereafter furnish or place in any cemetery or burial ground any monument, grave stone, inclosure, or other structure may at any time, or within one year after the bill for the same becomes due, file with the superintendent or person in charge of such cemetery or burial ground notice in writing, signed by the vendor, to the effect that he claims a lien on the same for the purchase price thereof, or such portion of the purchase price as remains unpaid, with interest. The act requires the superintendent or person in charge of the cemetery or burial ground to forthwith notify the owner of the plot of the filing of said notice of lien. Section 2 provides that, in case the amount due be not paid within six months after the service of said notice on the plot owner, the person claiming such lien shall within sixty days have the right, on ten d.ays’ notice to the superintendent or person in charge of the cemetery or-burial ground, to remove the monument or other structure from the cemetery or burial ground, and shall advertise and sell the same at public auction to the highest bidder, to satisfy the lien.

It was agreed between the respective counsel upon the trial that only two questions should be raised and passed upon by the court: ¡First. Was the notice provided by said act properly served on the plaintiff? Second. Is the act constitutional?

The character and extent of a statutory lien must always be ascertained by the terms of the act of the legislature creating and defining it. A statutory lien, therefore, cannot exist of he enforced unless it has been perfected in the manner described by statute. ' The very nature of the act under which the defendants claim their lien is so repulsive that no presumption will be permitted in their favor; and, unless they have complied strictly with the requirements of the statute, their lien cannot be enforced, even if there were no constitutional objections to it. The act in question, after providing for the filing of the lien, requires the superintendent or person in charge of the burial ground to forthwith notify the owner or owners of the plot of the filing of the notice of lien. It appears from the evidence that the superintendent, instead of serving notice on the plaintiff that the lien had been filed, directed the defendants’ agent to deliver a copy of the paper served on him to the plaintiff. This copy does not purport to tell when the lien was filed, or with whom it was filed, and no claim is made by the superintendent or agent that they ever notified the plaintiff that such a lien had been filed. The service of a copy of the lien upon the plaintiff, without notifying him that the lien had been filed with the superintendent, is not, it seems to me, the service of such a notice as the statute contemplates. It was held in McDermott v. Board of Police, 25 Barb. 635, that, when the legislature directs the giv-' ing of notice as a condition precedent to the doing of an act, they may also prescribe the mode of giving notice, but, in the absence of any provision on that subject, personal service of notice is necessary, and, unless the person proceeded against is duly notified according to law, the tribunal court, or officer has no jurisdiction over him, and the proceedings are coram non judice. In Pearson v. Lovejoy, 53 Barb. 407, the court held that the rule is well settled that, when notice is required or authorized by statute in legal proceedings, it means written notice. Rathbun v. Acker, 18 Barb. 393. It was one of the distinguishing features of common law that no judgment affecting the personal property rights of a defendant could be rendered except upon personal service. It is a rule well settled that statutes in derogation of the common law, and by which authority is delegated to an individual to sell property of the citizen, or acquire title thereto, are to be strictly construed, and the authority is to be clearly shown and strictly pursued. Rathbun v. Acker, supra. It would seem, therefore, that the notice of the filing of the lien which the act requires- the superintendent to serve on the lot owner should be in writing, and signed by the superintendent, and served personally on the owner of the lot. When this case was before the general term upon the appeal from the special term order refusing to vacate the preliminary injunction (91 Hun, 338), Van Brunt, P. J., characterized the act as an “extraordinary legislative production.” In speaking of that part of the act in regard to the service of the notice upon the owner of the monument, the learned justice said: “It seems to be somewhat difficult to understand exactly how such a requirement upon the part of the superintendent of a burial ground can be enforced.” He adds that “the right to foreclose the lien under the statute depended upon the expiration of a certain time after the service of notice of the filing of the notice of lien by the superintendent of the cemetery, and no authority is given to anybody else to usurp this duty.” In Re Empire City Bank, 18 N. Y. 215, Judge Denio said: “It may be admitted that a statute which should authorize any debt or damages to be adjudged against a person upon a purely ex parte proceeding, without a pretense of notice or any provision for defending, would be a violation of the constitution, and would be void.”

The act in question is almost without precedent in the legislative history of the state. It confers upon the lienors the right to go upon the plaintiff’s burying plot, and dig up and remove the monument, and sell it at public auction, without the consent of the owneh, and without instituting legal proceedings of any kind. In removing the monument, they may desecrate the graves, and disturb the remains of plaintiff’s deceased wife and daughter;- and the statute in question affords him no protection. The learned counsel for the defendants contended upon the argument that desecrating the graves is merely a sentiment, and that the act permitting it to be done is not against public policy. Conceding that it is a mere matter of sentiment, it is one, however, that has received the sanction and approval of mankind in all ages. Every civilized country regards the resting place of the dead as hallowed„ground, and not subject to liens, and to be sold upon execution, like ordinary property. Courts of equity have always been ready to restrain those who threaten to desecrate the graves of the dead, and to protect the sentiment of natural affection which the surviving kindred and friends entertain for their departed relatives. It is a sentiment that the legislature of this state recognized years ago, by passing appropriate laws to-preserve and protect the resting places of the dead. The Revised Statutes (3 Banks’ 8th Ed. p. 1947) provide that “no land actually used and occupied for cemetery purposes shall be sold under an execution or for any taxes or assessment, nor shall such taxes or assessment be levied, collected or imposed, nor shall it be lawful to mortgage such lands or to apply it in payment of ''debts so long as it shall continue to be used for cemetery purposes.’’ The Penal Code makes it a misdemeanor for any person not being the owner of a burying plot, without lawful authority, to willfully injure, disfigure, remove or destroy a grave stone, monument, or any shade tree or ornamental plant, or to remove from any grave any flowers, mementoes, or other token of affection.

In -passing upon the nnconstitutionality of this act, I am not unmindful of the duty of the courts to weigh carefully all that may be urged in favor of the validity of an act of the legislative department of the government, before declaring it in conflict with the constitution, and only to announce such a conclusion-when no doubt is entertained of its corectness. I am also aware-of the well-settled rule which requires every statute to be so construed as to uphold its constitutionality if it can be done by fair and reasonable interpretation of its language; but when a court, even at special term, is called upon to .pass upon the constitutionality of a statute, and it is found that the constitutional rights of the individual will he invaded by the operation or enforcement of it, then it becomes the duty of the court to protect the rights and property of the individual by holding, if necessary, that the act is unconstitutional. It is elementary that the highest obligation of a state under its constitution is to protect and defend its citizens in the enjoyment of their property. The operation of this statute makes the defendants judg§s in their own case. They have the right to determine and say that their claim has not been paid, when in fact it may have been; and there is-no tribunal provided for by the act before whom the plaintiff can appear and have his rights adjudicated. The legislature has attempted, by the passage of this act, to take from one individual his property by mere force of legislative enactment, and to give it to another, without any legal process, and without giving him an opportunity to be heard and defend his title and possession. In People v. O’Brien, 111 N. Y. 58; 19 St. Rep. 173, Chief Judge Ruger said, in substance, that the attempt to transfer property to a third party by mere force of the statute, without the consent or knowledge of the lawful owner, was an effort to change the ownership without due process of law, and that such legislation had frequently and emphatically been condemned. Taylor v. Porter, 4 Hill, 147; Parker v. Browning, 8 Paige, 388; Wynehamer v. People, 13 N. Y. 378; Cooley, Const. Lim. p. 355. Ho principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice, and an opportunity to make his defense. In Stuart v. Palmer, 74 N. Y. 183, Judge Earl said: “Due process of law requires an orderly proceeding adapted to the nature of the ease, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights.” A hearing and an opportunity to be heard are absolutely essential. Webster save a definition of the meaning of the words “law of the land” and “due process of law” in his great argument in the celebrated Dartmouth College Case, reported in 4 Wheat. 629, which has received the sanction of the courts. He said: “By the Jaw of the land’ is most clearly intended the general law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. It means that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society,” A very excellent definition is given by Judge Edrvards in Westervelt v. Gregg, 12 N. Y. 209. He says: “ ‘Due process of law’ undoubtedly means in due. course of legal proceedings^) according to those rules and principles which have been established for the protection of private rights.” In People v. Supervisors of Essex Co., 70 N. Y. 234, Judge Folger, in speaking for the court, said: “Due process of law requires that the party shall be properly brought into court, and that he shall have an oportunity, when there, to prove any fact which, according to the constitution and the usage of the common law, would be a protection to him or his property.” It would seem, therefore, that the constitution, as interpreted by the federal and state courts, means that due process of law re-requires that notice shall be given to the person whose property is to be taken, and that he shall have an opportunity to be heard, and that the hearing shall be before a court or other tribunal lawfully constituted and organized, and clothed with authority to act and decide the questions involved in the proceedings, and that the hearing and trial and decision shall he according to law.. It is evident that the act in question authorizes the taking of plaintiff’s property without due process of law, and is therefore unconstitutional and void. There can be no adequate remedy by the ordinary process of law in a ease like this. The remedy must be had, if at all, in the protecting power of a court of equity, operating, by its injunction, to protect the property of the living, and preserve the repose of the dead. The plaintiff, therefore, is entitled to a perpetual injunction against the defendants, restraining them and their agents and servants from interfering with said monument or other structures or fixtures belonging to. the plaintiff upon said burial lot.

Let the judgment be entered accordingly, with costs against defendants.


author: PARKER, P. J.

text:
    Albert S. Embler v. Hartford Steam Boiler Inspection and Insurance Company et al.

    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Insurance—Nature or contract—Indemnity.
    A policy insuring against loss or damage to property, whether owned by the insured or others, for which the insured may be liable, resulting from explosion of a steam boiler, and also against loss of life or injury to persons, whether the insured’s employes or any other persons, caused by such explosion, payable to the insured for the benefit of such persons or their legal representatives, is a contract of indemnity, and a person who is injured by such explosion cannot sue the insurance company.
    The opinion of Mr. Justice LANDON at special term is as follows:
    The contract of insurance is between the two defendants. Neither the plaintiff nor his assignor nor the decedent was a party to it. The pulp company was the employer of the decedent. The pulp company might by its negligence incur a liability to its servant or to his representatives. The Hartford Company, by its insurance policy, insured the pulp company, among other tilings against “loss of life or injury to person, whether to the assured, to employees, or any other person or persons, caused by such explosion or rupture, payable to the assured, for the benefit of the injured person or persons, or their legal representatives. in case of death, and not contingent upon the legal liability of the assured.” I assume that the pulp company did by its negligence incur a liability to the representatives of its servant, who was killed by the explosion of a boiler of the pulp company. It satisfied that liability by the payment to said representative of $1,500. Whether the pulp company could recover that sum of the Hartford Company, under the policy, is not the question before us. The question here .is -whether the assignee of the representative of the deceased servant can recover of the Hartford Company, under the contract between it and the pulp company, the additional sum of $.5.,000 specified in the policy, or any part of it? I think not.
    1. One cannot insure a life in which he has no interest. Ruse v. Insurance Co., 23 N. Y. 516.
    2. The pulp company has satisfied the claim which the representatie -of its deceased servant had against it on account of its negligence in -causing his death.
    3. If the Hartford Company, by the policy, became the surety of the pulp company, satisfaction of the claim by the principal releases the -surety.
    4. If the Hartford Company became the indemnitor of the pulp company., then the pulp company owns the cause of action.
    5. If the pulp company had an insurahle interest in the life of its servant, ¡then the contract of insurance must be for its own benefit. It anight receive this benefit by making the loss payable to the representative of the deceased instead of to itself but in such case, in -order to validate the policy it must be supported by the -consideration of its own obligation to its servant, which obligation the insurance company, by its policy, assumes and agrees to discharge. In other words, if the pulp company had an interest of $5,000 in the life of its servant, and owed its servant $5,000, -or was under some existing pecuniary obligation to him, then the pulp company could insure its interest in its servant’s life, and at the same time provide for the discharge of its pecuniary obligation to its servant by the provision in the policy that the loss should be payable to Ms representative. This, I suppose, is what Lawrence v. Fox, 20 N. Y. 268, and the cases limiting it, permit Vrooman v. Turner, 69 id. 280; Lorillard v. Clyde, 122 id. 498; 33 St. Rep. 303; Durnherr v. Rau, 135 N. Y. 219; 48 St. Rep. 394.
    But the evidence does not show that the pulp company had an insurable interest 'in the life of the deceased, or that it was under any existing pecuniary obligation to him, except to pay him his wages. It certainly' was not in the minds of the contracting parties to provide for the payment of these wages. Plainly it was contemplated that the pulp company might, by misfortune or negligence, cause its servant’s death, in which case, whether the company was legally liable or not, the representative of the deceased should recover not exceeding $5,000. This sum, whatever it might be, the insurance company promised the pulp company it would pay to the representative. The promise was to pay whatever the pulp company should be legally liable to pay on account of the death, or, if not legally liable, whatever it ought in charity, or neighborly kindness to pay. Payment by the insurance company would be in place of payment by the pulp company. Payment in the first instance by the pulp company would be the satisfaction of its legal or moral obligation. If the pulp company should default in payment, the representative might have recourse to the insurance company. If the pulp company should pay, then the pulp company might have recourse to the insurance company. I do not deny that a master may, at the request of his servant, and as his trustee, insure his servant’s life for the benefit of the servant’s representative. This policy does not disclose such a case, nor is it shown by extrinsic evidence. The pulp company is the assured, i. e., the party for whose benefit the policy is taken. Smith v. Insurance Co., 5 Lans. 545; Hogle v. Insurance Co., 6 Rob. (N. Y.) 567. If the representative had a legal asset, I think he could have assigned it. Olmstead v. Keyes, 85 N. Y. 593. But, so construing this contract, it follows that the plaintiff cannot recover.
    Douglas & Heaton, for app’lt; Lewis E. Griffith, for resp’t Hartford Steam Boiler Inspection & Insurance Co.; Franklin A. Rowe, for resp’t Ticonderoga Pulp & Paper Co.
   PARKER, P. J.

By the policy of insurance upon which this action is brought it is agreed that, in consideration of $375, paid by the pulp company, the insurance company defendant insures such pulp company in the sum of $50,000 against all such immediate loss or damage as shall be caused to the property of persons specified, by explosion of either of its boilers from October 12, 1891, to October 22, 1894, not exceeding in amount the sum insured. By a certificate attached to the policy, and made a part of it, termed a “special blanket,” it is further provided, in substance, that the pulp company is insured in the sum of $50,000 “against loss or damage to property of every kind wherever located, whether owned by the assured or by others, and for which the assured may be liable, resulting from the explosion or rupture of said steam boiler; also against loss of human life or injury to person, whether to the assured, to employees, or to any other person or persons, caused by such explosion or rupture, payable to the assured for the benefit of the injured, person or persons, or their legal representatives, in case of death, and not contingent upon the legal liability of the assured.” It is further provided that, in case of temporary injury, the liability of the insurance company shall not exceed fifty dollars per week, and in case of loss of life their liability shall not exceed $5,000 for each life lost. It it also further provided that in case of loss the damage to property shall first be paid, and the remainder of the $50,000 only shall be applicable to loss of life or injury to person. It is provided in the policy itself that the loss by personal injury is to be based upon loss of wages of injured person from the time of total disability. It is by no means plain what the parties intended to accomplish by these provisions concerning loss of life or injury to^ person, so far as it applies to the employees of the assured, and I ani in considerable doubt as to just what their contract upon that subject is. It is plain, however, that, whatever the agreement is, the only contracting parties are the insurance company and the pulp company. If, by their contract, so far as it extends to loss of life or injury to person, the sole purpose of such parties was to indemnify the pulp company against whatever loss should accrue to it by reason of the injury or death of its employee, and if we may so construe the, language which they have used, it is plain that the plaintiffs cannot recover in this action, for the reasons so effectively stated by the trial judge. See, also, French v. Vix, 143 N. Y. 90, 94; 50 St. Rep. 577. It is clear that, so far as injury to property is concerned, the contract is one of indemnity to the pulp company, but it is.urged by the plaintiff that, so far as it affects loss of life, the contract is not one of indemnity. An insurance against loss of property by fire or otherwise is not a contract of indemnity. A life insurance is not. It is “a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for life.” Olmsted v. Keyes, 85 N. Y. 593, 598; 52 St. Rep. 873. And the plaintiff claims that the contract before us if of that character. The provision that payment, in case of loss, is to be made “to the assured for the benefit of the injured person or persons, or their legal representatives in case of death,” leads me to doubt whether the parties intended a mere indemnity to the pulp company. So, also, the provision that payment was to be made to the pulp company without reference to its liability for the injury, idicates that mere indemnity to it was not intended. If there was no liability from the pulp company to the person injured, it is difficult to see how any loss could accrue to such company against which indemnity could be needed, or upon which it could be estimated. So, also, if in no event the sum paid was to become the property of the pulp company,—if such company was to receive it merely to the use of the injured person,—such a payment could not be considered as an indemnity to the pulp company, and we can hardly suppose it was intended as such. But if the contract is to be considered as one by which the pulp company has insured the life of the deceased, Provendrá, the question arises whether it is a valid contract. “A policy obtained by a party who has no interest in the subject of insurance is a mere wager policy.” Ruse v. Insurance Co., 23 N. Y. 516, 523. In Howard v. Insurance Co., 3 Denio, 303, it was said, “When the assured has no interest at the time the contract is made, the policy is a mere wager,” etc. It may be that if the deceased, Provendrá, had, at the time this contract was made, been under contract to the pulp company as its employee for a definite and unexpired term, so that the company would have then had a legal right to or an interest in his services, such company would have had such an interest in his life as would sustain a contract insuring it. But in the case before us it does not even appear that at the time of the contract Provincha was an employee of the pulp company 5 nor does it appear that such company ever had any definite and continuing contract for his services. For aught that appears, at the time of the contract he was an utter stranger to the company. And it is quite possible that at no time was-he obligated to work for the company for a longer period than through the day. Under these circumstances, the policy, so far as it undertakes to pay for the loss of Provincha’s life, is a mere wager. It is invalid, and the pulp company could not recover anything upon it. No recovery could be had upon it by any person without proving that at the time the policy was issued to the pulp company such company had an insurable interest in Provencha’s life. Ruse v. Insurance Co., above cited.

Laws 1892, chap. 690, § 55, has no application to the contract before us. It is argued, however, that because the policy provides that the payment to the pulp company is to be for the benefit of the person injured, snob policy is not a wager, but a valid contract. I cannot see how that provision affects this question. Clearly, it was the pulp company that made the contract and procured theinsurance. Even though the pulp company intended the insurance to he for the benefit of the person injured, the contract was still its contract. In no sense can it he said to have been the contract of the person injured, nor can the insurance be said to have been procured by the person injured. The pulp company did not assume to act as the agent for whoever should be injured, so that the contract can he deemed to have been made with the person injured, and for his own benefit. The provision that the payment is to he for the benefit of the injured person cannot be given any such force as that. The contract is in the name of the pulp company, and the loss is payable to it, and there is no fact in the case authorizing the conclusion that it was contracting for any person other than itself. If the contract between it and the insurance company had been a valid one, it might be that a trust would arise as between the pulp company and the person injured to hold the amount received to such person’s use. But conceding, as we must, that the insurance upon which this action is brought was obtained by the pulp company upon the life of a person in whom it had no interest, I am unable to see how any action can he maintained thereon by the pulp company or any one else. I do not see how the rule laid down in Lawrence v. Fox, 20 N. Y. 268, is important in this case. A man may insure his own life, and provide that the loss be paid to a party in whom he has no interest, and the beneficiary so named may recover on the policy the amount of the loss. Olmsted v. Keyes, above cited, p. 600. But he may not insure the life of a person in whom he has no interest, and, if he does, neither he nor the beneficiary named-can recover upon it. I conclude, therefore, that whether this contract be considered one of indemnity to the pulp company, or whether it be deemed an insurance upon the life of Provencha, taken out by the pulp company, in neither view can this action be maintained.

Judgment affirmed, with costs.

All concur.


author: PUTNAM,

text:
    William H. Proctor v. Sidney Sash, Blind and Furniture Company et al.

    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Action—Joinder of causes sequestering property.
    The principles applicable to a creditors’ action against an individual apply to a creditors’ action against a corporation to sequester its property, and therefore plaintiff, in an action to have alleg-ed illeg-al transfers made by the corporation set aside as fraudulent, may join as defendants persons to whom it is alleg-ed that the cor poration had made the transfers. ■
    Appeal from special term, Delaware county.
    Action for the purpose of having declared null and void certain judgments obtained by defendants the First National Bank of Earlsville and the Sidney National Bank against defendant Sidney Nash, Blind & Furniture Company. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed. James R. Baumes, for app’lts Sidney Nat. Bank et al.; Albert F. Gladding, for app’lts Sidney Nash, Blind & Furniture Co. et al.; Cumming & Gilbert (Frank B. Gilbert, of counsel), for resp’t.
   PUTNAM,

This action was brought by the plaintiff, as a judgment creditor, against Sidney Nash, Blind & Furniture Company, a domestic corporation, to obtain a sequestration of its property under the .provisions of section 1784 of the Code of Civil Procedure. Certain of the directors and stockholders of the corporation were made parties, and facts were alleged in the complaint tending to show the liability of the former for a neglect to file the annual report required by the statute, and for incurring a corporate indebtedness beyond the amount of the paid-up capital, and the latter for a failure to fully pay up the capital stock. The Sidney National Bank and others were also made defendants, and the complaint alleged facts tending to show separate, illegal, and fraudulent transfers of the corporate .property to such parties by the officers of the corporation. The Sidney National Bank and certain other defendants interposed a demurrer to the complaint upon the ground that two or more causes of action were improperly joined therein. The demurrers were overruled by the order of the court below, and from the judgment entered on. said order this appeal is taken.

It is conceded that the plaintiff was authorized under the provisions of sections 1790-1795 of the Code of Civil Procedure, to auake the directors and stockholders of the Sidney Sash, Blind & Furniture Company parties, and to insert in his complaint the allegations contained therein, tending to show a liability upon their part.

The only questioi3, therefore, that requires co33sideratio3i is whether the plaintiff could, in an action brought under the provisions of section 1784, supra, against the Sidney Sash, Blind & Furniture Compa33y, make other defendants to whom it was alleged the officers of that corporation had made separate, illegal ti-ansfers of its property, and set up the facts in his complaint tending to show such illegal disposal of the corporate property. The appellants urge that, the plaintiff in this action, brought to obtain a sequestration of the property of the defendant corporation, has united several other sepai’ate and distinct causes of actio3i arising out' of several distinct and separate alleged fraudulent transfers of the corporate property, in violatio3i of the provisions of section 464 of the Code of Civil Procedure. The object of the action was to obtain a judgment of sequestration of the property of the Sidney Sash, Blind & Furniture Companiy. “Sequestrate” is defined to mean “to separate from the owner for a time; seize or take possession of, as the property or income of a debtor until the claims of creditors are satisfied.” Cent. Diet. By section 1793 of the Code of Civil Procedure it is provided that the judgment in such an action “must provide for a fair and just disposition of the propei’ty of the co3’poration and of the proceeds thereof among the fair and honest credito3’s.” The judgment obtained in such action does not dissolve the corporation. Kincaid v. Dwinelle, 59 N. Y. 548; Hollingshead v. Woodward, 85 Hun, 410. An action brought under the provisions of section 1784, supra.-is similar to a creditors’ bill brought by a judgment creditor against an individual. Like a creditors’ bill, it can -only be maintained after a judgment and execution returned unsatisfied; and the object in both actions is to reach the assets of the judgment debtor for the benefit of creditors. I think, also, an action to obtain a sequestration of the property of a corporation must be deemed a suit in equity. The provisions- of sections 1784 and 1793, supra, are substantially the same as those contained in sections 36 and 37, 2 Rev. St. 463, which were embraced in article 2 of title 4, oh. 8. Article 2 was entitled “Proceedings against Corporations in Equity.” Proceedings under the provisions of sections 36 a3id 37, supra, against corporations, under the foi'mer practice, ■ were taken in the court of chancery. Although the sections referred to provider for a proceeding against a corporation thereunder by petition, it was held that a judgment creditor might, at his election, proceed by bill. Judson v. Rossie Galena Co., 9 Paige, 598; Morgan v. Railroad Co., 10 Paige, 290. The action to obtain a sequestration of the property of the corporation can only be maintained under the authority of the statute, yet it is an action of which the former court of chancery had jurisdiction, and which must be deemed a proceeding in equity. The plaintiff, therefore, sought by a suit in equity to sequestrate, to reach, to obtain the property of the Sidney Sash, Blind & Furniture Company, and to have the same applied in payment of his and the claims of other creditors. His object was substantially the same as in a creditors’ bill,—to reach the assets of the corporation for the benefit of creditors. But, if the averments in the complaint are true, the assets of the Sidney Sash, Blind & Furniture Company are in possession of several of the defendants named in the complaint, to whom,;such property has been fraudulently transferred by the officers of the corporation. I am inclined, therefore, to believe that this action, the object of which is to reach corporate assets, was properly brought, not only against the corporation, but also against those parties who have such corporate assets in their possession; that the complaint, which joined the corporation with those who had illegally obtained its property, claiming to recover that property for the benefit of creditors, contained but a single cause of action; that the well-settled principles applicable to a creditor’s suit against an individual should be deemed to apply to this creditor’s action against a corporation. In a creditor’s action against an individual, the plaintiff can unite claims for property in possession or under the control of the judgment debtor with demands against other parties who have obtained the possession of property of the debtor by fraudulent transfers thereof. In Reed v. Stryker, 4 Abb. Dec. 26; Id., 12 Abb. Prac. 47.—a creditors’ action had been commenced to set aside several fraudulent conveyances made by the debtor at various times and to various persons, and to subject the property to the executions of the plaintiffs, and to render an as- _ signee in trust personally liable. It was held that the complaint stated but one cause of action, and the various transferees may be joined as defendants, although there was no privity between them. Harris, J., in delivering the opinion of the court of appeals, said:

“The object of the suit is single. The plaintiffs, defeated in the collection of their debts by the ordinary process of law, now seek to reach the property of their debtor in the hands of those to whom he has dishonestly conveyed it. However numerous the persons with whom the property has been thus deposited, however distinct the transactions by which the debtor has sought to place it beyond the reach of his creditors, or however widely it may have been scattered in the execution of this purpose, the effort to recover the property, and have it applied to the satisfaction of the plaintiffs' debts, embraces but a single cause of action.”

See, also, Newbould v. Warrin, 14 Abb. Prac. 80; Brinkerhoff v. Brown, 6 Johns. Ch. 139; Railroad Co. v. Schuyler, 17 N. Y. 606; Morton v. Weil, 11 Abb. Prac. 421.

The case of Reed v. Stryker, supra, was cited and approved by the general term of the fourth district in Wood v. Furniture Co., 92 Hun, 22; 72 St. Rep. 830, as applicable to actions under the present Code of Civil Procedure. If I am correct in the conclusions above arrived at,-—in this equitable action, which is similar to a creditors' bill brought by a judgment creditor against an individual under rules applicable to such actions, the complaint contains but a single cause of action,—the principles of section 484 of the Code of Civil Procedure do not apply,.and the suit was properly brought against the corporation and the various parties in possession of the corporate assets sought to be recovered. We are referred to the case of Cummings v. Spring Co., 87 Hun, 598, in which the general term of the fifth department recently sustained a complaint which set forth a cause of action similar to that contained in the complaint under consideration.

I conclude that the judgment should he affirmed, with costs, with leave to answer on payment of costs of this appeal and the costs below within twenty days.

All concur.


text:
    People ex rel. Millard et al. v. Roberts, Comptroller.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Taxai i in—Canceling tax sale—Right oe owner.
    The rule that only the purchaser, and not the owner, of land sold for taxes, can, under Laws 1893, chap. 711, apply to the comptroller to have the sale canceled (People v. Roberts, 144 N. Y. 334), applies where the state was the purchaser at tax sale.
    Certiorari by John H. Millard and George H. Ostrander, to review the determination of James A. Roberts, as comptroller of the state of New York, in refusing to cancel on the application of relators a tax sale claimed by them to he invalid. Affirmed.
    Stedman, Thompson & Andrews, for relators; T. E. Hancock, Atty. Gen., for def't.
   PARKER, P. J.

Section 85, chap. 427, Laws 1855, gives authority to thee omptroller, whenever he shall discover that a sale made for taxes under that act is invalid, to cancel such sale, and refund out of the state treasury, to the purchaser, etc., the •'purchase money and iterest thereon. Ho provision is made by the statute as to who may make the proofs of invalidity, and apply to him for cancellation. It has, however, been decided that under that section the owner is not given any right to make such an application. People v. Chapin, 104 N. Y. 369. Subsequently, chapter 448, Laws 1885, amended section 65 of the act of 1855, by adding to it a provision that all conveyances and certificates, and the tax sales on which they are based, shall be subject to cancellation on a direct application to the comptroller, or an action brought before a competent court therefor, by reason of the legal payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid. Such act did not amend or affect the eighty-fifth section of the act of 1855, above referred to. It is manifest that the relators, in the matter before us, can claim nothing from this provision of the act of 1885, because they do not claim that the tax has been paid, or that it was illegally - assessed. Moreover, the case above cited holds, under this act, that the owner acquired no right to make such an application. By chapter 211, Laws 1891, the act of 1885 is amended, and it is therein provided that:

“All applications heretofore or hereafter made to the comptroller for the cancellation of any tax sale, by any person interested in the event thereof shall be heard and determined by him, and his determination shall he subject to review by certiorari or otherwise.”

Under this provision it has been again held that the comptroller has ho jurisdiction to entertain and act upon the application by the owner for the cancellation of a tax sale. People v. Wemple, 139 N. Y. 240; 34 N. E. 883. Subsequently, by chapter 111, Laws 1893, a general act was passed “in relation to the sale and redemption of lands sold for taxes,” and most of the act of 1855, including section 85, above referred to, was repealed; In place thereof, by section 20, it was, among other things, provided:

“If he (the comptroller) shall not discover that the sale was invalid until after a conveyance of the lands sold shall have been executed, he shall, on application of any person having any interest therein at the time of the sale, on recéiving proof thereof, cancel the sale, and refund out of the state treasury to the purchaser, his representatives or assigns, 'the purchase money and interest thereon,” etc.

Under this act it has been held that the owner of the lands sold has no right to apply to the comptroller for a cancellation of the sale; that it is to the purchaser only that such right is given. People v. Roberts, 144 N. Y. 234; 63 St. Rep. 100. It is claimed by the relators in this matter that these decisions do not apply to a ease where the state has become the purchaser at the tax sale; that they are based upon the principle that, the purchaser having an interest to sustain the sale, and no provision being made for bringing him before the comptroller to defend against the owner’s claim that it is invalid, the comptroller should not, in such cases, entertain an application to cancel the sale; but that in a case where the state itself is the purchaser, and is, therefore, before the comptroller, and in a position to defend against the owner's claim, the reason of the rule ceases, and hence the rule itself has no application. The cases above cited decide that it was not the purpose of any of the above-quoted statutes to clothe the comptroller with authority to decide as between the owner and the purchaser upon the validity of a tax sale; that it was not intended by them to create a new tribunal, where such question could be litigated and decided; and that the absence of any provision for bringing any party, except the applicant, before the comptroller, was evidence that no such purpose was intended. They hold that the plain and only purpose of such acts was to provide a means by which a purchaser, who had paid his money to the state for a title which proved to be defective, and of no value to him, could recover it back. The state, for the purpose of doing simple justice to a purchaser who had paid it money for a conveyance based upon an invalid sale, authorized the comptroller, upon discovering that fact, to cancel the sale, and restore the money. With that single purpose-in view, it is plain that no one need be before the comptroller but the purchaser, and -with such a purpose the provisions of the statute are consistent. For the purpose of adjudicating upon conflicting claims between owner and purchaser, the provisions are utterly inconsistent and insufficient. Whatever proceedings are taken to cancel the sale as between the purchaser and the state, -and whatever decision may he made in the matter, they cannot in any way prejudice or affect the interests of the owner. If the sale was illegal and invalid, his title was not divested, and he could at any time maintain and secure his rights thereto hv the proper action in the courts of the state. Johnson v. Elwood, 53 N. Y. 431; Thompson v. Burhans, 61 id. 52-67. But the purchaser who has paid his money for an invalid title looks only to the justice of the state for relief, and the statutes in question are the method by which the state har arranged to do him that justice. Therefore the court concluded that the comptroller, under those statutes, acquired no authority to inquire or decide as to the validity of a tax sale, except u-pon the application of a purchaser, and for the purpose of doing justi.ce to him. FTo such inquiry was intended, or was at all necessary, to protect the rights of the owner. If the statutes have invested the comptroller with authority to entertain the application only when made by the purchaser,—if the sole purpose of the inquiry is to do justice to him,—I cannot see how they can be extended, even though the state be the purchaser. They are not so elastic as to confer jurisdiction upon him to act in some instances upon the application of the owner and in other instances not; and I cannot believe that it was the intention of the court to so decide in the case of People v. Turner, 145 N. Y. 451; 65 St. Rep. 389. It is true that at page 459, 145 U. Y., the judge who wrote the opinion, has used language which indicates that such a distinction might be made. But it is not the statement of a proposition decided; nor was it one necessary to the decision of the case; and, in view - of the persistency with which that court has held, even under the provisions of the act of 1893, that the statutes confer no right whatever upon the owner (People v. Roberts, above cited), I am of the opinion that the distinction which the relators here seek to make cannot be sustained, I conclude that there are no provisions of law giving to tlie owner, under the circumstances htere shown, the right to apply to the comptroller to cancel a tax sale. If 'he is unlawfully injured by such a sale, he must seek his relief in the courts.

The decision of the comptroller is therefore affirmed, wi(h fifty dollars costs.

All concur.


author: PUTNAM, J.

text:
    Frederick F. Proctor v. Henry P. Soulier.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    1. Costs—Extra allowance—Discretion or court.
    An order granting an extra allowance, on the ground that the case was difficult and extraordinary, is discretionary with the trial court.
    3. Same—Amount in controversy.
    In an action to dissolve a partnership, and for an accounting, the complaint alleged that plaintiff was obliged to advance over $9,000 to pay the running expenses of the firm; that defendant, being unable to pay his share, delivered his notes for his share to plaintiff, and that plaintiff now holds unpaid notes of defendant to the amount of $9,000. In an affidavit read on a motion for an extra, allowance, plaintiff stated that his advances exceeded defendant’s share in the assets of the business, and that defendant has no interest whatever in the assets. Held, that plaintiff sought to recover 9,000, and that an extra allowance might be computed on such sum. Landon, J., dissenting.
    Appeal from judgment on report of referee.
    Action by Frederick F. Proctor against Henry P. Soulier to dissolve a partnership. The complaint was dismissed, and costs and an extra allowance were awarded to defendant, the plaintiff appeals. Affirmed.
    Dittenhoefer, Gerber & James (Simon W. Rosendale, Albert Hessberg, and A. J. Dittenhoeffer, of counsel), for app’lt; John A. Delehanty, for resp’t.
   PUTNAM, J.

This action was brought to dissolve the partnership existing between the parties, and for an accounting. The issues were, by consent, referred, and a trial was commenced before the referee. After several hearings had heen had, the complaint was dismissed by the consent of the plaintiff; he, however, insisting that costs should not he allowed to the defendant. The referee, however, awarded costs, and also made a certificate that the case was a difficult and extraordinary one. Afterwards, on motion of the defendant, an order was granted by the court below awarding him an allowance of $176. The plaintiff appeals from so much of the judgment as awards costs, and from said order.

It is only in exceptional cases that costs are refused to the prevailing party in an equitable action. Whether costs shall he granted or refused, the question should he determined by the court or referee before whom the case is tried. The plaintiff commenced this action for the purpose of obtaining a dissolution of the partnership existing between him and the defendant, and for an accounting, at a time when a suit brought for the. same purpose was pending, and persisted in proceeding with the case after he knew of the object of the former action. He was defeated, and compelled to consent to a dismissal of his complaint. I can see no reason why he should be relieved from the payment of costs, or why .this court should overrule the determination of the referee. I think the defendant, succeeding in the action, was justly entitled to costs. It is a well-settled doctrine that:

“Whether an action should be.regarded as difficult-and extraordinary, within the meaning of the Code of Civil Procedure, rests substantially in the judgment and discretion of the judge to whom the application is made; and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge, that the appellate court rarely interferes.” Bryon v. Durrie, 6 Abb. N. C. 140; Morrison v. Agate, 30 Hun, 23.

It is only in cases of an abuse of discretion that an appellate court can overrule an order of the judge awarding an allowance. Morss v. Hasbrouck, 13 Wkly. Dig. 393; Insurance Co. v. Cranwell, 10 N. Y. Supp. 404; Wilber v. Williams, 4 App. Div. 444. I think this was a case where the court below could properly grant an extra allowance. The action was brought in the city and county of New York, although the transactions between the parties had occurred, and the property affected was situated, in Albany county. The defendant was compelled to move in the city of New York to change the place of trial, and in that motion, and other motions made by the plaintiff, his attorney was obliged to go from Albany to the city of New York several times. After the issues had heen referred, the trial proceeded four of five days before the plaintiff consented to the dismissal of the complaint. There was an appeal to the general term from an order obtained by the plaintiff appointing himself as receiver in the action, which was argued, the defendant obtaining a reversal of such order. ‘The affidavit produced by the respondent showed that his attorney was compelled, in order to prepare for the trial, to make an examination of the accounts of the partnership; and considering the nature of the action, the allegations of the complaint, and the charges therein made against the defendant, it is evident that a careful preparation of the case by the defendant’s attorney was proper and necessary. The papers submitted to the court below established a state of facts justifying an allowance. I am unable to see how we could hold that there was an abuse of discretion on the part of that court in granting the order from which the appeal is taken.

But is urged that no basis was shown on which the court below could legally grant an extra allowance; that the complaint does not demand' judgment for any specific sum, but only for such amount as may be found due on an accounting; nor is there any statement in the pleadings to show what sum was claimed; that the defendant’s affidavit that the lease owned by the co-partnership was sold for $10,000 does not avail him, because this sum was subject to the payment of partnership debts, and there was no statement or proof of the amount of such debts; also, it was stated in the affidavit read on the part of the plaintiff (which was not denied) that the firm was insolvent, and hence, as nothing would remain for either party, the plaintiff could not recover any sum. Before the trial of the case was concluded, the .plaintiff consented to a nonsuit and dismissal of the complaint, and therefore there was no finding by the referee, or judgment upon the merits. To determine the sum claimed by the plaintiff, or the valus of the subject-matter involved, therefore, we must refer to the complaint, and the affidavits used on the motion. Where there is no judgment on the merits in an action, the amount of an extra allowance must he based on the amount claimed, or shown to be involved, by the complaint. If the plaintiff had merely sought to procure a dissolution of the partnership, and an accounting, and the film was insolvent, probably there would have been no basis for an extra allowance. In Adams v. Arkenburgh, 106 N. Y. 615; 11 St. Rep. 121: 13 N. E. 594, it was "decided that in such an action the amount involved is the one-half of the proportion of the value of the partnership assets to which the plaintiff in the action is entitled. Hence, if a firm, after the payment of its debts and obligations, is insolvent, the plaintiff is not entitled to. and will not recover, anything. He has no interest in the firm assets, will recover nothing, and in such a case there is no basis for an extra allowance. Weaver v. Ely, 83 N. Y. 89. But in this case the plaintiff sought other relief than a mere dissolution of the partnership and an accounting. The following allegation is contained in the complaint:

“That this plaintiff has, in consequence of the poor business done at said theater, been obliged to advance, from time to time, since the commencement of this co-partnership, over $9,000 to pay the running expenses thereof, and to carry on the same; that the defendant, being unable to pay Ms portion of said advances, delivered his notes for his share to the plaintiff, and plaintiff now holds unpaid notes of the said defendant to the amount of $9,000 for his share of the moneys that plaintiff was compelled to advance to carry on said business.” ,

And in the affidavit used on the motion the plaintiff states:

“My advances to the business exceed any interest or share that the defendant, Soulier, has in the assets of the business, so that not only will the said Soulier have no interest whatever in the assets of the business, but I will he entitled to, and I verily'believe will receive from the referee, a judgment against the defendant, after applying all the assets of the business to the liquidation of my claim and advances.”

Referring to the corn-plaint and said affidavit, therefore, to determine the amount or sum claimed by the plaintiff, or involved in the action, we find that the plaintiff claimed that, when the action was terminated the partnership was commenced, he held the notes of the defendant, for necessary advances m-ade, for the latter, to pay the running expenses of said partnership, for the sum of $9,000. As the giving of a note is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker was indebted to the payee in such settlement to the amount of the note (Lake v. Tysen, 6 N. Y. 461), the allegation in the complaint that, the plaintiff at the termination of the partnership held the notes of the defendant for $9,000 for advances made by the latter in the firm business in equivalent to an averment that that sum was due after a settlement betwen th-e partners, for advances made for the firm. The plaintiff therefore sought in the action to recover of the defendant $9,000. If the firm was insolvent, he was nevertheless entitled to recover that sum by the application thereon of the defendant’s share of the assets of the firm, after paying “outside” creditors; and, if the defendant’s share of the assets would not fully pay said debt, the plaintiff was entitled to a personal judgment against the defendant for the balance. As the plaintiff, therefore, in the action, sought to recover the amount of the notes he held against the defendant for advances m-ade to the firm, I think there was a sufficient basis for the allowance made by the court below.

The judgment and order should he affirmed, with costs.

PARKER, P. J., and MERWIN, J., concur. LANDON, J., dissents.


author: LANDON, J. PUTNAM, J.

text:
    Emma Van Wert v. St. Paul Fire and Marine Ins. Co.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Insurance—Cancellation of policy by surrender.
    Where the insured, after repeated requests for payment of premiums, and failure to pay, surrendered the policy to the agent of the insurer without stating that she wished to retain it, and made no further claim to it until after the fire, the policy is thereby canceled. Putnam, J., dissenting, on the ground that the evidence did not show a surrender of the policy.
    Appeal from trial term, Ulster county.
    Action by Emma Van Wert against the St. Paul Fire & Marine Insurance Company to have the cancellation of an insurance policy set aside, and the policy delivered to the plaintiff on payment of the premiums with interest, and to recover the amount of the policy. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.
    William D. Murary, for app’lt; P. & C. F. Cantin (Charles F. Cantine, of counsel), for resp’t.
   LANDON, J.

The plaintiff, after repeated requests for payment of the premium, and her neglect to pay, surrendered the policy to the agent of the defendant without protest, or any pretense that she wanted to retain it, and made no further claim to it until after the fire. The legal effect of that surrender without reservation was to terminate the credit given her for the payment of the premium. The company could, in the absence of any facts constituting an estoppel, terminate the credit at any time, and taking back the policy was explicit notice to her of such termination. The credit terminated, the policy ceased to be operative. The company did also in form cancel the policy. But it was canceled by the act of surrender without reserve. The five days’ notice of intent to cancel has reference to a policy in force either by actual payment, or a still-continued credit for it. If—as I do not think—any of these questions were for the jury, we should then, in the exercise of our power of review of the facts, set the verdict aside, as against the clear weight of the evidence.

PARKER, P. J., and HERRICK and MERWIN, JJ, concur.

PUTNAM, J.

(dissenting). On the 21st day of March, 1893, the defendant issued and delivered to the plaintiff a policy of insurance for the sum of $1,000 on her house in Sleightsburgh. N. Y., for the period of three years. Prepayment of the premium was waived, and it is conceded that the plaintiff’s time to make such mvment was extended by the defendant’s asiente to the last day of November, 1893. The house so insured was destroyed by fire on the 24th day of March, 1894. The premium, although repeatedly demanded, had not been paid. The agents of the defendant obtained possession of the policy some time in' November, 1893, and .retained it until the 1st of December, at which time they claim it was returned to the general agent of the defendant, marked “Canceled.” The plaintiff in the complaint asked for a judgment setting aside the cancellation of the policy, reinstating it, and for a recovery against the defendant for the amount thereof. She obtained a judgment in the court below for the relief she demanded.

It is a well-settled doctrine that prepayment of the premium ©n a policy of insurance may be waived by the insurance company or its authorized agents, and that such a waiver may be shown by direct proof that credit was' given, or may be inferred from circumstances. Bodine v. Insurance Co., 51 N. Y. 117; Robinson v. Insurance Co., 18 Hun, 395; Hodge v. Insurance Co., 33 id. 583; Goit v. Insurance Co., 25 Barb. 189; Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Sheldon v. Insurance Co., 26 id. 460; Washoe Tool Manuf’g Co. v. Hibernia Fire Ins. Co. of Ohio, 7 Hun, 74; Id., 66 N. Y., 613. In this case it was not denied that prepayment of the premium was expressly waived by the agents of the defendant, and that the plaintiff’s time to pay the premium was extended, by consent of such agents, until the last day of November, 1893. It is clear from the evidence that the policy was in force during the month of November, 1893, and, if plaintiff’s house had been destroyed by fire during that month, she would have been entitled to recover of the defendant the amount of the policy. The question arises whether the evidence given on the trial established the fact of the cancellation or surrender by the plaintiff of the policy in question on or before the 1st day of December, 1893, or before the occurrence of the fire by which the plaintiff’s house was destroyed. The policy in question, having been delivered and become operative without payment of the premium, remained in force, unless canceled by the defendant, or surrendered by the consent of the plaintiff. It was for the defendant to show such surrender or cancellation. The defendant’s case, as to the cancellation or surrender of the policy, rests entirely on the testimony of Schuyler Schultz, one of the firm of John L. Schultz & Son, the agents who issued the policy to the plaintiff. He testified as follows:

“I went up to West Hurley on the 6th of November, 1893, and asked Mrs. Van Wert for some part of the payments of the premiums due. She said it was impossible for her to do anything. I told her I would have to cancel the policies, but as our aec'ount with the St. Lawrence Company did not go to the insurance company until the last day of the month, as was their custom, that I would' hold the policies in our office until that day. If she came to our office in the meantime, and paid for the policies, they would be in full force and effect; if not, they would be canceled. Q. Did you make any memorandum on the policy when you got it from Mrs. Van Wert? A. Yes, sir. Q. What is it? A. ^Canceled November 6th, 1893.’ ”

The defendant’s case is not strengthened by the testimony of the witness Wilson, for the reason that after, as Wilson testified, he obtained the policy from the plaintiff, in September, and delivered it to the defendant’s agents, it was returned to the plaintiff, and she was given more time in which to pay the premium. From the testimony of Schuyler Schultz, above quoted, it is clear that the cancellation indorsed on the policy on November 6th was unauthorized, because it was not shown that he had given the plaintiff five days’ previous notice of his intention to cancel the policy, as required by its terms, and also because he extended plaintiff’s time of payment of the premium until the last day of November, 1893. Probably the notice he testified he gave the plaintiff on November 6th, and the indorsement then made on the policy, were sufficient to effect its cancellation after the last.day of November, 1893. Van Wert v. Insurance Co., 90 Hun, 465. But the testimony of Schuyler Schultz as to the conversation and transaction of November 6th is positively denied by the plaintiff. She says:

“I have heard the testimony of Schuyler Schultz. He did not see me at my house November 6th, and demand of me payment of the premiums upon the policies, and notify me that, if they were not paid on or before December 1st, that they would be canceled. I am quite positive of that.”

And she says that the policy was obtained from her on the 25th day of November by Wilson, the clerk of John L. Schultz & Son; that at the time Wilson asked to see the policy, and when produced, put it in his pocket and took it away. Her statement of the transaction does not differ materially from that given by Wilson, except as to time.- Again, Frederick S. Van Wert, the husband of the plaintiff, testified to a conversation with Schuyler Schultz in the latter part of December, 1893, after it was claimed the policy had been returned to the general agent of the defendant, canceled, in which Schuyler Schultz requested payment of the premium on the policy in question, and spoke of it as being in his safe, and safer there than with the witness. This testimony tended to contradict that of Schuyler Schultz, and to show that the policy in question had not then been surrendered or canceled. We have, then, a case where a policy of insurance had been issued, delivered, and become operative. The question was, had it been canceled or surrendered ? As we have seen, it was for the defendant to show such cancellation or surrender. Its case rested on the testimony of one witness was positively denied by the plaintiff, and her testimony to the effect that there was no voluntary surrender or delivery of the policy in question to the defendant’s agents. Another witness (Frederick S. Van Wert) testified to a conversation with Schultz in the latter part of December, 1893, inconsistent with his statement as to the surrender or cancellation of the policy. While the jury, on the evidence in the case, could have found in favor of the defendant, I think the preponderance of the evidence in favor of the latter was not so great as to authorize this court to grant a new trial. It was suggested by the learned judge who delivered the opinion in Kaare v. Iron Co., 139 N. Y. 369; 46 St. Rep. 461; 34 N. E. 901, that where, upon a trial, “there is a vast preponderance in the evidence in favor of defendant,” the general term should “exercise an independent judgment, and grant a new trial on the ground that the verdict is against the weight of evidence.” The learned judge might, I think, properly have said that where there is a clear, decided preponderance of evidence in favor of the defeated party, the general term should reverse on the facts. On the trial in this case, as appears from the foregoing statement of the testimony, there was no such preponderance of the evidence in favor of either party. A fair question of fact, on the conflicting testimony, was raised, which was properly submitted to the jury, and hence the verdict cannot be disturbed by this court. I think that none of the exceptions taken by the defendant during the trial require discussion, or a reversal of the judgment.

The judgment should be affirmed, with costs.


text:
    Richard W. Brass et al. v. Albert Rathbone et al.

    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    1. Municipal corporations—Power op Water Company.
    Laws 1850, chap. 235, sec. 19, authorizing the water commissioners of the city of Albany to make such by-laws and regulations as may be deemed advisable, to have the same force when ratified by the, common council as any ordinance, and providing that such rules may be enforced by cutting off the supply of water, authorizes the water commissioners to pass by-laws providing that no more than 150 gallons of water p¡er day shall be used in any building without'’ a special permit, and that, if more than such quantity is used without a permit, the occupant of the building shall be liable to a penalty, and that the water may be shut off.
    2. Same—Cutting opp water—Complaint.
    The owner of a building, who has leased it for a term of years, and has paid the water rent, cannot complain of the action of the water commissioners in cutting the water off from the building, because the tenant did not comply with the regulations of the water commissioners.
    3. Injunction—"Enforcement op water tax.
    The collection of a water tax will not be enjoined, except under circumstances of great necessity, and to prevent irreparable damage.

      Appeal from special term, Albany county.
    Action to enjoin defendants from cutting off the water supply to plaintiff’s premises. From a judgment granting an injunction pendente lite, defendants appealed. Reversed.
    John A. Delehanty, for app’lts; Eugene D. Flanigan, for resp’ts.
   PUTNAM, J.

By section 19, chap. 235, of the Laws of the state of New York of 1850, the water commissioners of the city of Albany were authorized to “make such by-laws and regulations for the preservation, protection and management of the said water works, and the use and control of the water, as may be deemed advisable, and which, when ratified or approved by the common council, shall have the same force and effect as any law or ordinance by them enacted.” And by section 29 of the same act it is provided, among other things, that the observance of said rules may be enforced by cutting off the use and supply of water. Section 23 of the said act, as amended by chapter 253 of the Laws of 1854, enacts that the water commissioners shall establish a scale of annual rents for the supply of water, or benefits arising therefrom, to be called “water rents,” and apportioned to the different classes of buildings in the city. And section 25 of the act of 1850, as amended by the act of 1854, provides, among other things, that buildings which shall consume water beyond the quantity required for ordinary use or common purposes shall pay therefor, annually in advance, to the chamberlain of the city of Albany, special rates in addition to the annual water rent, such special rates to be determined by the commissioners. It appears by the papers presented to us that the water commissioners, in pursuance of the power confered on them by section 19 of the act of 1850, made certain ordinances, which were approved and ratified by the common council of the city of Albany. One of said ordinances provided that “occupants of buildings assessed for annual rents shall be allowed to use in and about their buildings 150 gallons of water daily for the ordinary uses, and not exceeding that quantity, without a special permit.” By another of said ordinances it was enacted that if “more water is used in any building than is allowed by these regulations, without a permit therefor, the occupant of the building shall be liable to a penalty of from two dollars to fifty dollars, to be, fixed by the commissioners; and the superintendent, in- his discretion, is authorized to' shut off the supply pipe.” These ordinances were authorized by the acts of 1850 and 1854, and have the force of, and are to be deemed as, a local law applicable to the city of Albany. The plaintiffs paid fifteen dollars, the annual water-tax assessment against their premises, occupied by one McGrail, their tmant. for the year ending on the 1st day of December, 1895. TFb payment of the animal tax authorized the use by the plaintiffs’ tenant of 150 gallons daily, and no more. The use by him of a greater quantity of water, under the statute and ordinances above stated, was unauthorized, wrongful, and unlawful. It appears-by the affidavit, on which the plaintiff applied for the temporary injunction, and the papers annexed thereto, that their premises No. 538 Broadway, in the city of Albany, were charged with the sum of $60.73 as-a special rate or tax for water used by their tenant from December 15, 1894, to May 15, 1895, beyond .the ordinary amount authorized, and that a notice was served on said plaintiffs by the water commissioners that if the special rate or tax was not paid the water would he shut off from said premises. The papers on which the plaintiffs move do not show that such extra water was nof in fact used by the occupant of the building-in question, or that a permit therefor had been obtained by the plaintiffs or their tenant. . There is a statement in the moving-affidavit “that deponent and his co-tenants (the plaintiffs) have at no time between December 15, 1894, and May 15, 1895, used said premises for any purpose subjecting them, or either of them, or said building, to a charge to said defendants for any special water rates.” But such an averment does no't show that their tenant, McGrail, has not used on said premises water beyond the-amount authorized. The affidavit also states that the deponent “is informed and believes his said tenant has paid heretofore for extra water used in connection with his said business.” Such an averment on information and belief, without stating the sources of his information or the grounds of his belief, and without procuring the affidavit of McGrail, is not to he regarded. Nor do-1 understand that the plaintiffs’ counsel claims that extra water has not hen used by McGrail, but he insists “tliat. if there is a charge-for extra water used, it must be against the tenant, and not against them; that they, having paid for the ordinary water privileges, are entitled to enjoy them; that in no event can they be deprived of the ordinary water supply.” But, as we have seen, the ordinances enacted by the water commissioners of the city of Albany in pursuance of the act of 1850, which have the same force as would a law passed hv the legislature, provided that the plaintiffs or their tenant, paying the annual water rent charged against said premises, were authorized to use 150 gallons of water daily, and no more, and, if more water was used, that the water commissioners were authorized to shut off the supply pipe, The defendants, therefore, in giving notice that unless the said rate was paid the water would he shut off, were merely threatening to do a legal act. The plaintiffs paid the ordinary water tax to obtain an ordinary supplv of water for the use of their tenant, occupying their premises, with knowledge of, and bound by, the provisions of the local law, which provided that if the occupant of the build-in sr should use more than 150 gallons daily, which was authorized, the supply pipe might be cut off. The plaintiffs could not, hy¡ obtaining for McGrail a right to use 150 gallons of water a day, confer on him authority to violate the legal ordinances of tne water commisisoners, to use an unlawful amount of water, or prevent the defendants, in case of such unlawful use by McGrail, from cutting off his supply of water. Although section 25 of the act of 1850, as amended in 1854-, contemplates that, where more water is used than the quantity required for ordinary purposes, a permit shall be granted and payment made before such use, it cannot be doubted that the water commissioners, when an occupant of a building, without a permit or prepayment or notice, wrongfully uses an amount in excess of the amount authorized, may, under the provisions of section 19, and the other provisions of the acts of 1850 and 1854, make rules and regulations applicable to such cases. Under the general power confered upon them by such section, they can fix a price for extra water thus used without permission, and can provide for shutting off the water in case of nonpayment of such special rates. I think, therefore, that, in serving the notice of which the plaintiffs complain, the defendants were merely performing their duty as public officers of the city of Albany, in attempting to prevent the wrongful appropriation by the plaintiffs’ tenant of an extra supply of water without payment therefor.

It is apparent from the moving papers how shutting off the water from the premises in question by the defendants would cause an injury to the plaintiffs. The property is in possession of their tenant under a lease extending to the year 1900, and the lease does not provide for the payment by the lessors of any water rates for water used by the tenant. The plaintiffs have paid the regular water rent, which gave to the tenant 150 gallons daily. If he wrongfully and unlawfully used more water than he was authorized to, without payment and permission in advance, as-required by the ordinances, the injury to him resulting from such wrongful act would not give him any claim against his landlords. The injury that might be produced by shutting off the water would he an injury to the occupant of the premises, and not to the plaintiffs. I am unable to see how the tenant could successfully claim an eviction in consequence of shutting off the water as suggested, or -a right to leave the demised premises as untenantable, under the provisions of chapter 345 of the Laws of 1860; for that chapter only confers such a right on the tenant when, premises become untenantable without any fault on his part, -and, if cutting off the supply of water from the premises, in question would render them untenantable, it would he the result of the wrongful violation of the said ordinances by the tenant.

-I am also under the impression that, in any view of the case, the plaintiffs are not entitled to maintain this action for on injunction. It has long been settled that courts of equity will not sustain an action to restrain the collection of a tax, except under circumstances of great necessity, and to prevent'irreparable damage (Railroad Co. v. Smith, 39 Hun, 332-337, and authorities cited); that 'the same rule should apply where the court is asked to restrain proceedings to enforce the payment of a water tax assessed?by a municipal corporation; and that no such state of facts is shown in the moving papers as justified the court in ¿ranting the temporary injunction under the rule above referred to. But I deem it unnecessary, in view of the conclusions above arrived at, to consider this branch of the case, or the other questions discussed in the briefs of counsel.

The- order should be reversed, with costs and disbursements, And the motion denied, with costs.

All concur.


author: LANDON, J.

text:
    Lena R. Boyer et al. v. Sydney S. Decker.
    (Supreme Court, Appellate Division, Third Department.
    May 4, 1896.)
    1. Wills—Wpo mat contest.
    Testator devised real estate to a trustee, to sell and keep the proceeds until 21 years after testator’s death, and then pay them to plaintiffs, 24 years after the sale; and, 30 years after probate of the will, plaintiffs sned the trustee’s executor, into whose hands the fund had come, to compel payment to them. Until this action was brought, no one ever questioned "the validity of the will. Held, that the executor could not challenge the validity of the will.
    ■3. Necessary parties—Action to compel payment op trust pund.
    In an action by the beneficiaries under a will devising land to a trustee, to sell, and hold the proceeds for a certain time, to compel the executor of the trustees to pay the fund over to the beneficiaries, testator’s heirs are not, necessary parties, as their title to the land was not affected if the will was void, and, if it was valid, its terms excluded their resort to the fund.
    3. Trusts—Death op trustee—Appointment op new trustee.
    Where a trust fund passes into the hands of the executor of the trustee, and no other duties are to he performed in relation to the fund, except to pay it over to the beneficiaries, a new trustee need not be appointed,' but the executor will he required to pay the fund over.
    Appeal from special term.
    Action to compel defendant to pay over to plaintiffs certain moneys -which came into defendant’s hands as executor. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.
   LANDON, J.

We do not think the appellant, should he Beard to challenge the validity of the sixth clause of the will of Samneil Stevens. The will was admitted to probate thirty years ago. Mr. Shearer, the defendant’s testator, the executor and trustee therein, named, assumed the will to be valid, and twenty-four years ago, pursuant to its terms, sold the real estate devised by it. The will directed him to keep the proceeds until twenty-one years after the testator’s death, and then pay them to the persons indicated by the will. The respondents are the persons thus indicated. Shearer, the trustee, is now dead, and the fund is in the hands of the defendant, his executor. Until this action was brought, no one ever questioned the validity of the will. Its validity could only be challenged by the two sons ,of Samuel Stevens, his only heirs, who were adults when their father died. One of them is the father of the plaintiff, and the other the father -of the other respondents. The sons seem to' have acquiesced in the will. If now they should change their minds, they must rely upon their title as heirs to the land, which title is apparently barred by the statute of limitations. If the will is void, it never aL’vcted their title to the land. If it is good, its terms exclude their resort to this fund. In either event they are not necessary parties to this action. Assuming that the two sons should bring ejectment for the land, and recover it of the purchasers,—an improbable event,—the latter would have no recourse except upon the covenants in the executor’s deed to them; and, as none are shown, the defendant should not keep this fund on that account. The will was valid enough to enable Shearer, the trustee, to realize the fund from the estate, as directed by the will, in trust for those respondents. He never had any title to the fund except as trustee. He took the benefits and burdens together. No valid reason is shown why the trust should not be performed by payment .pursuant to its terms. No adverse claimants are shown to exist. The defendant has shown nothing that exposes him to risk. There is no need of the circuity of appointing a new trustee. The defendant has the fund. Its amount has been determined. He has no better right to retain it than his testator had, and he should pay it over as directed by the judgment. The judgment should he affirmed, hut as the sixth clause of the will, which gives rise to this contest, seems to be so framed as to invite challenge, costs of both parties are allowed out of the fund.

Judgment affirmed, with costs to both parties out of the fund.

All concur.