text:
    CHRISTOPHER B. KEOGH, Respondent, v. JOHN McMANUS, Appellant, and CORNELIUS DOREMUS, Respondent.

      Foreclosure • — receiver of the rents and profits of the premises — disposal of the fund in payment of a subsequent mortgage.

    In this action, brought by the plaintiff to foreclose a mortgage for $1,900, given by the defendant McManus and wife, a receiver of the rents, issues and profits of the premises was appointed. Upon the sale an amount was realized suffi_ cient to discharge the amount due to the plaintiff, together with the costs, and leave a surplus, which was applied upon a second mortgage given by the said McManus, and which when so applied left still due thereon the sum of $110.58. There was a balance of rents collected in the hands of the receiver amounting to -$351.10. The court directed that $110.58 of this should be paid to the holder of the second mortgage and the balance thereof to McManus.

      Held, that this was proper.

      Washington Life Insurance Company v. Fleischaur (10 Hun, 117) distinguished.
    Appeal from an order directing tbe distribution of moneys collected by McManus, as receiver, during the pendency of this action.

      E. II. Moeran, for the appellant.

      Everett D. Barlow, for the respondent Doremus.
   Daniels, J.:

By the judgment in the action a mortgage was foreclosed which had been executed by McManus and his wife to the plaintiff to secure the sum of $1,900; and a sale under it was made of the-mortgaged property. The amount for which the property was purchased was the sum of $3,000, out of which the plaintiff’s mortgage was paid, together with the costs and expenses of the foreclosure. The aggregate ■ of these sums was $2,363.58, leaving a surplus of $636.42. The defendant, McManus had also executed a mortgage to Peter Doyle for the sum of $675 and interest, which was subsequent to the plaintiff’s mortgage, and Cornelius Doremus, who was the owner of the last mortgage, was a party to the foreclosure suit. The surplus left after payment of the plaintiff’s mortgage was-applied towards the payment of the mortgage held by Doremus. After so applying it a balance remained due thereunder amounting to-the sum of $110.58. While the action -was pending McManus collected, as receiver, from the estate tbe sum of $é92, and afterldeducting $116.30, paid out by him, and his commissions of twenty-four dollars and sixty cents, there remained a balance of $351.10. By the order from which the appeal has been taken $110.58 of this amount was applied to the payment of the residue of the mortgage debt owing to Doremus under the mortgage to Doyle, and the residue was allowed to be retained by McManus the receiver and owner of the equity of redemption in the land. The order appointing him receiver did not make the appointment specially for the benefit of either of the parties to the action, but it in general language appointed McManus receiver of the rents, issues and profits of the premises mentioned and described in the complaint, which would subject the fund received to the general equities arising in the action, and authorized it to be distributed as the justice of the case might indicate. And as the mortgage held by Doremus had been made by McManus, and this balance was left unpaid after exhausting the proceeds of the sale under the judgment, and the rents collected issued out of the same property, it was both just and right that so much of the amount should be applied to the payment of the last mortgage as was necessary for its satisfaction. The order differed from that which was made in Washington Life Insurance Company v. Fleischauer (10 Hun, 117), and the other cases there referred to. For in them the receivership was specially for the benefit of a particular party, while in this it was general, and, consequently, for the benefit of all the parties to the action, and having been made in that form the fund received under it was liable to whatever disposition appeared to be equitable under the circumstances of the case, and it was clearly equitable to order payment of the residue of the mortgage debt due to Doremus to be made out of this fund.

But if the order appointing the receiver should be construed to be for the sole' benefit of the plaintiff, the same result would follow as to the right of the holder of the last mortgage to be benefited by the fund received. For under that construction the plaintiff would have a clear right to resort to the moneys secured by the receiver for the partial satisfaction of his mortgage, and to obtain payment of the residue out of the fund created by the proceeds of the sale, and that, if it had been done, would have enabled the holder of the last mortgage to obtain complete satisfaction of the debt due to him out of the balance of the proceeds of the sale. And it is a general principle in equity “ that if one party has a lien on, or interest in, two funds for a debt, and another party has a lien or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund in the first instance for satisfaction, if that course is necessary for the satisfaction of the claims of both parties, whenever it will not trench upon the rights or operate to the prejudice of the party entitled to the double fund.” (Story’s Eq. [12th ed.], § 633.)

That was the situation of the parties holding these mortgages against the property of the defendant. The plaintiff had the fund created by the sale, as well as that derived from the rents in the hands of the receiver, to which he could resort for payment of his judgment, while the defendant was limited to the proceeds of the sale of the land. And under this principle the plaintiff could have been obliged by a proper order for that purpose to have exhausted the fund created by the rents before availing himself of that arising out of the sale of the land, and that would have permitted the holder of the last mortgage to have obtained complete satisfaction of his demand. Where, for any reason, the party having this right to resort to two different funds fails to do so, as the plaintiff did in this instance, and obtains satisfaction out of the common fund, there the law will allow the party having the right .against one of the funds alone, to stand in the place of the other, so far as that other may have exhausted the fund available alone to him, to obtain satisfaction of his demand. The law, in other words, allows the party, who has been deprived of his right to payment by the other creditor improperly exhausting the common fund, to be subrogated to the rights of that creditor to obtain satisfaction of his debt. It has been stated to be very certainly the law, “ that whenever a creditor, by his election to take one of two funds to which alone another creditor has the right.to resort, deprives the latter of his claim to that fund, he will be permitted in equity to stand in the place of that creditor in regard to the other fund.” (1 Story’s Equity [12th ed.], p. 615, note 1.) If satisfaction has been already obtained by him, who has the double security, out of the fund to which alone the other can resort, the court will allow the latter claimant to stand in the place of the former pro tanto. This was maintained as a well settled principle by a note of the reporter who collected the authorities and added them to the case of Averall v. Wade (1 Lloyd & Goold, 264, 268), and the principle has been sanctioned and approved by the more modern authorities. (Eddy v. Traver, 6 Paige, 521; Graham v. Dickinson, 3 Barb. Ch., 169; Couch v. Delaplaine, 2 Comst., 397; Slade v. Van Vechten, 11 Paige, 21, 26.) It follows, therefore, as the plaintiff elected to and did receive satisfaction of his prior mortgage out of the proceeds of the sale of the land, without resorting to the fund created by the rents in the hands of' the receiver, and in that manner diminished the proceeds of the land to such an extent as to deprive the holder of the last mortgage of the power of obtaining satisfaction of his debt out of that fund, that he had the equitable right to resort to the fund created by the rents for the payment of the residue of his mortgage debt. And that having been the disposition which was made of the case by the order from which the appeal has been taken, it should be affirmed,, with ten dollars costs, besides the disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    LOUIS A. WAGNER, Plaintiff, v. JOHN HODGE, Defendant. (ROBERT C. MARTIN, Purchaser, Appellant.)

      Foreclosure of a mortgage — when a general assignee is hound hy the judgment, although he is made a pa/rty individually and not as assignee — a general assignment must he recorded in the register’s office in New York in order to he notice to purchasers of the assignoi'’s real estate.

    In an action to foreclose a mortgage, one to wliom the mortgagor had subsequently made a general assignment for the benefit of creditors was made a party defendant, but was not described as an assignee:

      Held,, that as the assignee had no other interest than such as was derived from the assignment, and a3 such title as he had was acquired after the execution. of the mortgage, his interest as assignee was bound by the judgment of foreclosure.
    The assignment was recorded in the office of the clerk of the county of New York, as required by chapter 348 of 1860, but was not recorded in the office of the register of deeds.

      Held, that the assignment was not effectual as against one purchasing real estate transferred by it, in good faith and without notice, and that the purchaser at a sale under a decree foreclosing the said mortgage acquired the rights of such a Iona fide purchaser and was not affected by the fact that the plaintiff in the foreclosure action had known of the existence of the assignment.
    Appeal by Robert C. Martin from an order denying a motion to be relieved from a purchase, made under a judgment in this action for the foreclosure of a mortgage.

      George S. Hamlin, for the purchaser, appellant.

      Lewis Sanders, for the plaintiff.
   Daniels, J.:

The property sold consisted of three lots on the southerly side of Seventy-sixth street. The westerly lot had been described as commencing 300 feet easterly from the south-west corner of Seventy-sixth street and Third avenue, by which it would be located in the block easterly of the avenue, instead of the westerly block, in which it was as a matter of fact situated. And if the case depended upon this misdescription the purchaser could not be required to take the title which it was proposed to give him. But a further description was contained in the mortgage, b.y which the lot was designated as No. 13 on the map of property in the Nineteenth ward of the city of New York, belonging to Alonzo A. A. Alvord, and the estate of Louis Beach, surveyed by Richard Ammerman, city surveyor, dated 6th of March, 1860, and filed in the office of the register of the city and county of New York, on the 29th day of May, 1860. A map of this block was filed as the fact was stated to be in the mortgage in the register’s office, on the 6th of March, 1860, and upon it the correct location of lot 13 was stated and given. From the reference made to this map, and the map itself, the lot was therefore capable of being accurately placed and located, notwithstanding the subsequent misdescription1' of its location by the measurement stated in'the mortgage, and that under the authorities would enable tbe purchaser to acquire title to the lot under the purchase made by him. (Peck v. Mallams, 10 N. Y., 509; Brookman v. Kurzman, 94 N. Y., 272.)

The title to two of the lots, namely, eleven and thirteen, was derived through a mortgage made by Samuel Schiffer to JohnW. Burbank, dated on the 1st of November, 1873. Schiffer afterwards made an assignment to Jonas B. Jacobs for the benefit of his creditors. But in the foreclosure of the mortgage, while Jacobs was made a party defendant, he was not described as assignee, and because of that omission the foreclosure has been objected to as defective as to Jacobs. It was made to appear that Jacobs had no other interest in the property than that which had been derived under the assignment, and from that circumstance it is to be presumed that he was made a party to the foreclosure, and that he himself so understood the fact to be, to obtain all his interest in the property as assignee, and the judgment would probably be entitled to that effect, inasmuch as he had no other interest in the property, and what he had was subsequent and subject to the mortgage. The cases of Beers v. Shannon (73 N. Y. 292), and Rathbone v. Hooney (58 id., 463), and Stilwell v. Carpenter (2 Abb. N. C., 238), do not conflict with this conclusion, for the interests in them presented were not such as could have been affected or extinguished by means of the general allega tion that they were subsequent to, and subject to, the mortgage, as the interest, as a matter of fact, of this assignee was in the fore closure to which he was a party.

This assignment was made in May, 1876, and by chapter 348 of the Laws of 1860, was required to be recorded in the office of the clerk of the county in which the debtor resided at the date thereof. This requirement was made without reference to the character of the property in which the estate of the debtor consisted. Whether wholly personal property, or in part personal and in part real, the same record was directed to be made in the office of the clerk of the county. But that was to secure its legal validity only as an assignment. As a conveyance of real estate to make it effectual and operative as to subsequent purchasers of such property from the assignor, it was also required to be recorded as a deed in the office of the register of deeds of the county of New York. For all conveyances of land have been-required to be so recorded to render them valid and effectual against subsequent purchasers from the same grantor in good faith. (Chap. 86, Laws of 1813, vol. 2, §§ 170-171; Bliss, Olney and Whitney’s Laws of the City of New York, 1456.) And this was such a conveyance. This point was examined in Simon v. Kaliske (27 How., 249), and this conclusion was maintained by the decision which was then made. The general statutes of the State also are to the same effect, requiring a deed of conveyance of real estate, before it can be maintained as valid against a subsequent purchaser in good faith, to be recorded as such, when it may relate to property in the county of New York, in the office of the register of deeds. (2 R. S. [6th ed.], 1152, § 78.) This assignment was not so recorded, and on account of that omission, it failed to take effect as to subsequent purchasers of this estate in good faith. And proof was presented that these lots were afterwards purchased and acquired, by persons who paid a fair consideration for the same, without notice of the existence of this preceding assignment. By their purchase and the conveyance of the property to them they acquired a legal title to the property notwithstanding the assignment, and it was under the mortgage given upon the title acquired in this manner that the sale was made under which the appellant became the purchaser. And that sale was valid and effectual as against the preceding general assignment, and it could not be defeated or prejudiced by the fact that the plaintiff had knowledge of the existence of the general assignment. For by the mortgage foreclosed, the title and interest of a bona fide purchaser was incumbered, and whoever should take it, through the foreclosure and sale under that mortgage, would acquire the title of that purchaser, and would hold the property free and clear of the incumbrance of the preceding assignment, although he himself might previously be informed of its existence. (Webster v. Van Steenbergh, 46 Barb., 211; Wood v. Chapin, 13 N. Y., 509.)

It also appeared that Schiffer became insolvent and was proceeded against as a bankrupt under the bankrupt laws of the United States, and that on the 3d of March, 1879, an assignee of his estate was appointed in this proceeding. But that was after the foreclosure of his mortgage had been commenced. At that time no such assignee whatever existed or could have been made a party to the foreclosure, and under section 132 of the Code of Procedure the assignee in bankruptcy was to be regarded, as he in fact was, a subsequent purchaser or incumbrancer, by reason of the fact that a notice of the pendency of the action had previous t.o his appointment been filed, as that section required it should be, and not a necessary party to the action. The same provisions are now included in sections 1670, 1671 of the Code of Civil Procedure, and they are entirely controlling as to the effect of this objection taken by the purchaser to the title proposed to be given to him, for they provide for omitting such a party as a defendant in the action. These are all the defects urged on behalf of the purchaser as reasons for relieving, him from the obligation of his purchase, and, as neither of them can be sustained, the order from which the appeal has been taken should be affirmed, with ten dollars costs, besides the disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


author: Dadiels, J.: Brady, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. JAMES BOWE, Respondent.

      .Support of persons in jail in aiml proceedings — contract by the county for their support — 1875, chap. 251 — -1877, chap, 417 — Oode of Oivil Procedure, sea. 112 — pesjury— what instn'ument falls within section 96 of the Penal Oode — that an improper person malm the affidavit is no defense to a prosecution for perju/ry — Penal Oode, sea. 98.
    'The authority, given by section 2 of chapter 251 of 1875, authorizing the board of supervisors of the several counties of this State .to contract with the sheriff or jailor for the support of persons confined in jail on civil process, who have made oath that they are unable to support themselves, and by section 4 of the act making its provisions applicable to the city of New York, was not taken away by the repeal of the first and fourth sections of the said act by chapter 417 of 1877, as the provisions of the said section 4 were contained in the general provisions of section 112 of the Oode of Oivil Procedure.
    An indictment charged that a contract had been entered into between the aider-men of the city and county of New York, acting as the board of supervisors ■of the county, and the sheriff, for the support and maintenance of any person confined in the jail, upon any process in civil proceedings, who should make oath of Ms inability to support Mmself during Ms imprisonment; that under tMs contract a list was made out against the county, stating the names of persons for whom and the times for which support and maintenance had been provided, and that the defendant, in the indictment, as warden or keeper of the jail, had made oath to the account or statement to the efEect that the .same was true, and that the maintenance and .support of the persons named in it had been provided for them while they had been confined in such jail, and that they had made oath of their inability to support themselves.
    It then charged that the account or list was not a true account or list of the persons for whom support had been so provided, and that they had not taken the oath required by law that they were unable to support themselves during their imprisonment, which the defendant well knew to be the fact:

      Held, that the board of aldermen acting under chapter 304 of 1874, had power to make the contract in question.
    That the statement of account verified by the jailer was a “ declaration, deposition, certifiate or affidavit,” within the meaning of section 96 of the Penal Code, and that the willful statement therein of any material fact known by the deponent to be false, rendered him guilty of the crime of perjury. (Brady, J., dissenting.)
    That it was no defense for the defendant to show that he was not the proper person to verify the account, so long as he did in fact verify it.
    Appeal from a judgment sustaining a demurrer to an indictment.

      Piter B. Ol/ney, district attorney, for the people.

      Edrnard W. Crittenden, for the respondent.
   Dadiels, J.:

The indictment charged that a contract had been entered into between the board of aldermen of the city and county of New York, acting as the board of supervisors of the county, and Alexander Y. Davidson, the sheriff, for the support and maintenance of persons confined in the common jail of the county, upon any writ or pro cess in civil proceedings, who should make oath of his inability to support himself during his imprisonmept, and for the payment to the sheriff of the sum of seventy-five cents per day for each of such persons, during the time he shall be actually confined in such prison. That under this contract a list or account was made out against the county, stating the names, number of persons, and time for which such support and maintenance had been provided, and that the defendant, as warden or keeper of the jail, made oath to the account or statement to the effect that the same was true, and that the maintenance and support of the persons named in it had been provided for them while they had been confined in such jail, and that they had made oath of their inability to support themselves. The indictment then charged that the account or list was not a true list of persons for whom support had been so provided, that they had not taken the oath required by law that they were unable to support themselves during their imprisonment, which the defendant well knew to be the fact. And that by verifying, as he did, the correctness of the list or statement, he had committed the crime of perjury. The defendant demurred to the indictment for the reason that it appeared upon its face that the facts stated did not constitute a crime.

The authority to contract for the support and maintenance of such persons as should make oath of their inability to support themselves during the terms of their imprisonment was provided by section 2 of chapter 251 of the Laws of 1875. As the act was then passed it authorized persons confined in the prisons or. common jails of the counties of the State, after the first of January, 1875,. upon any writ or process in any civil action, or proceeding in the nature of a civil action, to make oath before the sheriff, jailor or deputy jailor of his inability to support himself during his imprisonment. And upon the oath being made, then by the contract authorized to be entered into by section two of the act with the sheriff or the jailer, the persons so taking such oath wei'e to be maintained at the expense of the public. But to recover such expense from the county, it was provided by this section that “such sheriff or jailor shall attach to all bills rendered for such support and maintenance, a list under oath of the number and names of the persons to whom such support and maintenance was furnished, and the length of time' each person was so supported.” And this act by its fourth section was rendered applicable to and made to include the board of supervisors, as then organized, in the city of New York. That organization was specially provided for by chapter 804 of the Laws of 1874,. empowering the board of aldermen to exercise the authority and discharge the duties of supervisors in and for the county of New York.

But by section 49 of chapter 417 of the Laws of 1877, the first and fourth sections of chapter 251 of the Laws of 1875 were repealed. But this repeal was not made to abolish the legislative authority provided by those sections, but rather to supersede them, because of a general enactment of the same nature made by section 112 of the Code of Civil Procedure, which took effect at the time these sections of the act of 1875 were repealed. By this section, in any county except Kings, where a prisoner actually confined in jail makes oath before the sheriff, jailer or deputy jailer, that he is unable to support himself during his imprisonment, his support is made a county charge. This enactment was as broad as that of tbe sections of the act of 1875, which were repealed by the act of 1877-For it was made applicable to all of the counties of the State except Kings county, and accordingly includes the county of New York, and continued section 2 of the act of 1875 applicable as it previously had been to that county. For this purpose it was not important that the first and fourth sections of the act should be continued in force as long as their provisions were in general terms embodied in, and continued by, section 112 of the Code of Civil Procedure. That section, added to section 2 of the act of 1875, created a complete system and left the latter act the same in its substance and effect as it would have been if this section had not been inserted in the Code,* and sections 1 and Í of the act of 1875 had been unrepealed and continued in force. By this section of the Code, and the second section of the act of 1875, the authority was still preserved for making and entering into the contract alleged to have been made by the board of aldermen with the sheriff. For their authority to act as supervisors in making the contract remained unaffected, and continued in force as it had been conferred by the act of 1874. Under these several acts, considered and combined together, the board of aldermen, as supervisors of the county, were authorized to make the agreement mentioned in the indictment, and under and by virtue of it proper charges for supporting and maintaining the persons described could be made against the county. But to sustain them and entitle the sheriff or the jailer to payment under the contract, the oath provided for by law was required- to be made. And it was in taking that oath that the perjury alleged in the indictment is averred to have been committed.

By the seeond section of the act of 1875 the oath is, in terms, required to be made by the sheriff or jailer taking the contract, and as the contract in .this instance was alleged to have been made with the sheriff and not with the jailer, it has been supposed that the latter did not commit the crime of perjury in falsely, willfully and knowingly verifying by his oath this false account. But the oath did, 'nevertheless, tend to verify the statement made and to entitle the sheriff to payment under the terms of his contract. "While the act of 1875 may require the oath to be made by the sheriff or jailer taking the contract, it still does not exclude the oath of the jailer when the contract may have been awarded to the sheriff. What was required by its spirit, as well as its intention, was that the account or statement should be verified and sustained by the oath which was to be taken, and if that could not be done by the sheriff where the jail was not under his management or supervision, as it may not have been in this instance, the person to furnish the evidence would be the jailer, having himself alone the knowledge acquired by his position to enable him to supply the proof. There certainly was no exclusion in any form of his oath as a verification of the list or statement. It was pi’oof that had to be supplied before the account would be payable, and the defendant undertook to supply that proof. And if he did that willfully, knowingly and falsely, as the demurrer to the indictment admits he did, then he would seem to have committed the crime of perj uiy, as that has been defined in section 96 of the Penal Code of the State. Por by that section perjury has been declared to consist in declaring, deposing or certifying falsely in any material matter in any declaration, deposition, affidavit or certificate necessary for the prosecution or defense of a private .right, when an oath may be lawfully administered. An oath could be lawfully administered to verify and sustain this account or statement. When so administered it was a deposition, declaration, affidavit or certificate within the language of this section, and if the defendant knew when he made the oath that it was false, as it was material for the support of the account, the crime alleged in the indictment was committed by him. It has been further provided by section 98 of the Penal Code that “ it is no defense to a prosecution for perjury that the defendant was not competent to give the testimony, deposition or certificate of which falsehood is alleged. It is sufficient that he actually was permitted to give such testimony or make such deposition or certificate.” This section was enacted' to preserve and maintain the preceding general rule, “that though a person is not a legal and competent witness in a case, if he is actually admitted by tbe court and testifies he commits perjury when what be testifies to is willfully false.” (2 Bishop on Crim. Law. [5th ed.], § 1019; Pratt v. Price, 11 Wend., 127.) And it bas by tbe Penal Code been made to include not only evidence given in tbe course of legal proceedings, but oaths taken under the authority by which this oath was provided for. As tbe law bas been enacted, where an oath may be taken the party or person who takes it cannot protect himself against criminal accountability by alleging bis incomp'etency to give tbe deposition or certificate of which the falsehood is alleged. But it is sufficient to render his act criminal that he has taken the oath for the purposes provided by law. That, according to the indictment, was done by the defendant. He undertook to verify the account or statement, when an oath had by statute been provided for that purpose. And he is alleged to have taken the oath knowingly, willfully, corruptly and falsely.

It has been claimed that the indictment was too general in its allegations as to the fact that the oath was false ; but this objection is unfounded, for it has been averred that the persons charged for and confined in the jail had not taken the oath required by law, that they were unable to support themselves during their imprisonment, and that the defendant well knew that to be the fact. This averment included all the persons whose names were contained in the account or list which was set out as it had been drawn, in the indictment. There was not the least difficulty in understanding the particulars under this, as well as other averments, not required to be noticed, of the alleged' falsehoods intended to be relied upon in support of the indictment. And when that is the form of the pleading, it has been declared to be sufficient by section 284 of the Code of Oriminal Procedure.

The judgment from which the appeal has been taken should be reversed, and the defendant required to plead to or answ;er the indictment.

Davis, P. J., concurred.

Brady, J.

(dissenting):

The defendant was indicted for perjury. The oath which was alleged to have been falsely taken was one required by chapter 251 of the Laws of 1875. It is insisted by the respondent that the act mentioned does not apply to the city of New York. Without passing upon this question, which is not necessary to the determination of the appeal under consideration, and assuming the act applies therefore to this city, the oath taken was one which was extra-judicial and not the subject of indictment. I think the opinion of Justice Barrett sustaining the demurrer is a sufficient revelation of the law by which this case is to be governed, and requires qp elaboration.

The judgment appealed from should be affirmed.

Judgment reversed, and record remanded to the Oyer and Terminer, and defendant required to plead to indictment.


text:
    JOSEPH H. MOORS, Appellant, v. HENRY P. KIDDER and Others, Respondents.

      Factors and warehousemen act — 1830, chap. 179, sec. 3 — what a lender must show to entitle him to protection under it.

    To entitle a person advancing money, upon the security of goods under the control of the borrower, to the protection afforded by section 3 of chapter 179 of 1830, relating to factors, agents, warehousemen and other custodians, it must be shown that the borrower had been intrusted by the owner with the possession of a bill of lading or a warehouse receipt for the delivery of the merchandise, and that the loan was made upon the faith thereof, or if no documentary evidence of title was given to the borrower, that he -was intrusted with the possession of the merchandise for the purposes of sale, or as a security for . advances to be made or obtained thereon.
    It is not sufficient to show that he was intrusted with the possession of the goods, if he was so intrusted with them only for the purpose of enabling him to have the merchandise stored for and in the name of the true owner.
    Appeal from a judgment dismissing the plaintiff’s complaint on trial at the circuit, and from an order denying a motion for a new trial.

      E. R. Robinson and O. E. Bright, for the appellant.

      Charles B. Alexander, for the respondents.
   Daniels, J.:

The action was brought to recover the possession of ninety-five cases of shellac. They were taken into the possession of the sheriff, but returned by him to the defendants upon án undertaking executed and delivered for that purpose. The plaintiff claimed title to the shellac under a loan of money made by him to Paul M. Swain for the security of which the shellac had been by an agreement hypothecated. The defendants, constituting the firm of Baring Brothers & Co., and their agents, carrying on business in Boston, under the firm name of Kidder, Peabody & Co., claimed the title to the shellac as security for money advanced in the payment of its purchase-price. These defendants issued to Swain a letter of credit by which the firm of A. C. Bancroft & Co., which was engaged in business at Calcutta, was authorized to draw upon Baring Brothers <fc Co., for the cost or purchase-price of the shellac. And Swain in whose behalf it was to be purchased and shipped, entered into an agreement with them by which they were entitled to all the property purchased by means of the credit and the proceeds thereof, together with the bill of lading for the same, as collateral' security for the reimbursement of the sums advanced by them. And it was made subject to their order with authority to take possession and dispose of the same at their discretion for their security or reimbursement, and substantially placed under their control until the moneys advanced by them upon the draft or drafts, to be drawn should be refunded. Under this letter of credit and the accompanying agreement, Bancroft & Co. purchased the shellac for Swain and drew their draft upon the defendants, Baring Brothers & Co., for its price. They shipped it on board the steamship City of Manchester at Calcutta, and by the bill of lading taken for it, consigned it to this firm. It was carried to England by this ship and there transferred to the steamship Bolivia, which delivered it at the city of New York, where it was placed in store. It remained in store in a bonded warehouse until Swain applied to Kidder, Peabody & Co. as agents of Baring Brothers & Co. for the bill of lading. They delivered it to him with a blank indorsement upon it, and it was then taken to William A. Brown, a custom-house broker, who by virtue of its authority, secured the transfer of the shellac from what has been called the general account, in which no owner’s name was made to appear. Brown added tbe name of his own firm above the blank indorsement on the bill of lading, which enabled him to control the entry as well as the property. Under that authority it was transferred or placed to the credit of Swain, who applied to the plaintiff for a loan of money upon this and other merchandise. At that time no warehouse receipt had been issued to Swain, and he placed with the plaintiff other security in lieu of it until it should be obtained, and the plaintiff at the time advanced a portion of the loan. A written order was given by Swain to Casy, who had the possession of the warehouse containing the shellac, to deliver the ninety-five cases to the plaintiff, and on the surrender of that order Casy issued a receipt for the shellac to the plaintiff, who thereupon completed the loan agreed to be made, and surrendered the other securities held in place of the receipt. That he proceeded in making the loan and obtaining the warehouse receipt for the merchandise in good faith was proved by the evidence taken upon the trial of the action; and that Swain had obtained the possession of the merchandise when he applied for the loan of the money, was also a fact proven in the case, but that possession of itself would not empower him to transfer a title to the shellac to the plaintiff. (Covill v. Hill, 4 Denio, 323, 327; Hazard v. Fiske, 83 N. Y., 287, 294.) A person himself having no title to personal property cannot, by the mere fact of its possession, transfer a title to it, and in that manner deprive the actual' owner of his property. The law requires additional evidence of authority to accomplish that result, added to and beyond the fact of possession.

If the bill of lading indorsed in blank with the name of the consignees of the property had been presented to the plaintiff, and he had advanced the money upon the faith of the evidence of title so created, he would have been empowered to hold the property under the provision of the statute declaring that every factor or other agent intrusted with the possession of any bill of lading for the delivery of merchandise shipped under it, shall be deemed to be the true owner thereof, so as to give validity to any contract made by him with any other person for the sale or disposition of the whole or any part of such merchandise, for money advanced or negotiable instrument or other obligation given in writing by such other person upon the faith thereof. (2 R. S. [6th ed.], 1168, § 3.) But to secure protection to a person advancing money by this provision of the statute, it is requisite that the advance shall be made upon the faith of the bill of lading. That is the language used in the statute. It must be upon the faith thereof.” (First National Bank of Toledo v. Shaw, 61 N. Y., 283, 301; Kinsey v. Leggett, 71 id.. 387, 395.) But the loan was not applied for on the faith or evidence of title supplied in this manner by the bill of lading and its blank indorsement. That evidence of ownership was not produced or brought to the attention of the plaintiff, and by reason of the omission he cannot avail himself of the benefit of this provision of the statute. It appears by his own evidence, and that of Mr. Curtiss to whom a portion of the business was intrusted, that the money was obtained’ by Swain wholly and exclusively upon his representation that he was the owner of the shellac. And that excluded all possible advantage which might otherwise have been derived from the bill of lading, if the loan had been made upon the evidence of right or title furnished by its indorsement. The plaintiff’s right to the property is equally as defective under a somewhat similar act in the State of Massachusetts, where the application for the loan was made and the money was obtained. For it is only where the agent has been intrusted with a bill of lading consigning merchandise to him-for the purpose of sale, that a transaction of the nature of that which took place between Swain and the plaintiff can be protected. His title under each of these statutes, which, on this subject, are-essentially the same, must depend upon the fact whether Swain had been intrusted with the possession of the merchandise for the purpose-of sale, or as a security for advances to be made or obtained thereon.. If he had beén, then undej another provision contained in the third section of each of these acts his authority to dispose of the property will require to be maintained. But if Swain was not intrusted with the possession of the merchandise for the purpose of sale, or as a secu-. rity for advances to be made or obtained upon it, then the plaintiff has no title upon which he can maintain his right to the property against the defendants. For by the statute it is indispensable that he shall have the possession for the purpose of sale or as a security for advances-to be made or obtained, before he can transfer a title to any person dealing with him upon the faith of such possession. This is the-construction which the language of the statute very clearly requires-■shall be given to these provisions. And it is in harmony with the authorities of Cartwright v. Wilmerding (24 N. Y., 521) and Bates v. Cunningham, (12 Hun, 21), and it is also supported by Collins v. Ralli (20 id., 246).

It becomes necessary, therefore, to examine the evidence to ascertain whether, as a matter of fact, Swain had been intrusted with ■the possession of the shellac by the indorsement of the bill of lading to him for the purpose of sale, or as a security for advances to be made or obtained thereon. At the time when the bill of lading so indorsed was delivered to him he is shown to have executed and ■delivered to Kidder, Peabody & Co., as the agents of Baring Brothers & Co., a receipt, in and by which it was stated and agreed that the invoice and bill of lading had been delivered to him for the purpose of enabling him to enter the goods referred to in them at ■the custom-house, and the agreement was added that this should be done in the name of and for Baring Brothers & Co., and subject to their order. The receipt and agreement is in the following form:

Boston, Nov. 18, 1881.
To Messrs. Kidder, Peabody & Co., Boston:
Gentlemen. — I acknowledge receipt from you, as attorneys for Messrs. Baring Brothers & Co., of invoice and bill of lading of ■SST Mirzapore
D C One hundred cases of shellac.
New York. 9 15678 5/6,

■Shipped by.C. C. Bancroft & Co. on board SS. Co. Manchester, at Calcutta, and consigned to the order of Messrs. Baring Brothers & Co., and indorsed by you, as their attorneys, to me. Such invoice .and bill of lading are delivered to me for the purpose of enabling me to enter the goods referred to in them at the custom-house.

And I hereby agree to place, the goods on storage for Messrs. Baring Brothers & Co., and subject to their order, and so that they may be applied to the due performance of the agreement contained ■in the receipt signed by me for your letter of credit on them, No. 2419, or any other letter of credit on them, through which such goods have been purchased, we agreeing to keep them covered by insurance against fire for account of and loss payable to Messrs. Baring Brothers & Co.

It is understood that the said goods are to be warehoused in the name of Messrs. Baring Brothers & Co., and warehouse receipts therefor handed to you for them.

Yery respectfully,

Your obedient servant,

(Signed) PAUL M. SWAIN.

And by its language it plainly excluded all right on the part of Swain to sell the merchandise, or obtain any loan upon it. An effort was made to overcome this effect of the instrument by proving other transactions between these parties in which Swain had disposed of property consigned in this manner for which he had received bills of lading indorsed in a similar way. But this proof did not extend so far as to create a presumption that it was intended •on the part of the indorsers of the bill of lading that the merchandise should, notwithstanding the receipt and agreement, still be subject to the disposition of Swain. For it failed to prove that either member of these firms had been made acquainted with the fact that Swain had in this manner disposed of the property. The nearest approach to anything from which knowledge of his conduct in this respect might be inferred was one transaction only which Swain testified was brought to the attention of one of the clerks of Kidder, Peabody & Co. And as that was adjusted without any default on his part, it does not seem to have elicted any special comment or in .any form to-have been brought to the attention of either member ■of the firm in which the clerk himself was employed, while the evidence given by one of the active members of that firm directly denied the existence of knowledge or information that Swain had been dealing in this manner with consigned property. It further appeared by the evidence of the witness Collins, that Swain applied to him for the papers concerning this consignment of shellac. Ilis statement is : “I asked what he was going to do with the papers and he said he wanted to enter them at the custom-house and warehouse them for account of Baring Brothers & Co. I took the papers and the receipt to Mr. Peabody and asked him if I should deliver these papers to Mr. Swain upon that agreement, that Mr. Swain was to-warehouse them in the name of Baring Brothers & Co. Mr. Peabody said I could deliver them, and upon that'authorization I delivered the papers to Mr. Swain, taking a receipt signed by him.” The evidence of Mr. Peabody corroborates this statement so far as. it relates to the authority concerning the delivery of the documents. His statement is that Collins asked him if the goods could be surrendered to Mr. Swain, and that he replied that they cóuld be-surrendered only upon the terms of the agreement which was held from Mr. Swain, and that he consented to the form of the receipt which was taken. The testimony of neither of these witnesses was in any manner contradicted upon the trial, and it was sufficient to-prove, as a matter of fact, that the bill of lading for the shellac was not indorsed, or delivered to Swain,.to intrust him with the possession of the merchandise for the purpose of sale, or to be made use of, by way of security, for any loan to be obtained upon it, but solely and only to authorize him to enter the goods at the warehouse in the name of Baring Brothers & Company, and that invested him with no authority under this provision of the statute to dispose-of or hypothecate the property to the plaintiff for a loan of money to himself. The agreement, according to this evidence, was specific as to this quantity of merchandise, that Swain should be invested with no further power of control or disposition than simply to-cause it to be entered in compliance with the terms of the agreement contained in his receipt. The plaintiff testified to a conversation which he had with Mr. Kidder after the commencement of this-action, in which the former stated that the latter had allowed Mr. Swain for a number of years to do as he pleased with the merchandise that he had intrusted to him, and that Mr. Kidder replied that-he was sorry to say that he had. But this conversation was not in the slightest degree in conflict with the evidence of Collins and the-import of the receipt that, as to these particular goods, the authority of Swain was restricted to their entry in the manner agreed upon, in the warehouse.

Further reliance in support of an alleged authority given to Swain to sell the goods was placed upon the allegations contained in the-complaint in an action brought by Henry P. Kidder and others against Swain and Casy for the recovery of the value of these-goods. The statement so made included a representation from Swain that he had made a sale of the shellac and requested the papers held by Kidder, Peabody & Co. to be delivered to him for the purpose of effecting such sale, and that they, relying upon the representations so made by Swain, did deliver to- him the papers and the possession of the property. If this statement had remained unaffected by any addition to it, it might very well be .assumed from it that Swain had been authorized to sell or hypothecate the merchandise. But it did not, for the statement immediately followed that the papers had been (lelivered to Swain under an agreement with him, of. which a substantial copy is afterwards set forth, and that agreement was the receipt subscribed and delivered by him when he was placed in possession of the indorsed bill of lading. These allegations, therefore, proceed no farther than to show that Swain desired to obtain possession of the papers and the merchandise for the purpose of effecting a sale, but that .they were given to him under the restriction that he should for the time being cause the goods to be entered in the name of Baring Brothers & Co. At most, he desired authority to sell, but he was restricted simply to the power of making this particular entry. No authority to make a sale or hypothecation of the goods could therefore be inferred from what is alleged to have been represented by Swain and what followed in the way of limited authority given to him. As to this merchandise, that was all the power or control conceded to him. It was to make this particular entry, and that is clearly shown to have been the intention of the parties by what transpired at the time when the indorsed bill of lading was deliv-, ered to him, and this receipt and agreement were taken from him. He was in no form intrusted with the possession of the merchandise for the purpose of sale, or with the power to make use of it as a security for any advances to be obtained thereon. And without that authority the provisions of the statute afford the plaintiff no protection for the advances made by him upon the misrepresentation of the title made to him by Swain. He was not placed in such a relation to the property, or to the evidences of its ownership, as enabled him to make the disposition of it which he attempted in favor of the plaintiff, upon the sole ground of his representation that he was its owner. The evidence was so decisive as to prove these to be the facts in the case.1 There was. no question under ,it which could uroperly be submitted for the deliberation or decision of the jury, but as the facts were made to appear they required the case to be disposed of as it was by the court. The disposition which was made of it seems to have been well warranted by the circumstances proved by the evidence.

Other exceptions were taken which have not been specially relied upon in support of the appeal, but they relate to matters outside of the controlling facts appearing upon the trial. Whether they were rightly or erroneously disposed of can be of no advantage to either of the parties, for by the facts themselves, which were proved beyond dispute, the firm of Baring Brothers & Co. were entitled to the possession and control of the property, and Swain had no such power over it as in any form enabled him to subject it to the loan made by the plaintiff, solely upon the faith of his own representation that he- was the owner of the property.

The judgment and the order from which the appeal has been taken should be affirmed.

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

Judgment and order affirmed.


text:
    In the Matter of the Application of ADELIA L. OTIS, Executrix and Trustee, etc., for an Order Directing the Payment of Rent by ALBERT STRASBURGER, as Committee, etc.

      Committee of a lunatic — is personally liable for rent, if Tie takes possession of promises under a lease held by the lunatic — he may be compelled to pay the rent by petition.

    Where the committee of a lunatic enters into so much of premises, theretofore demised to the lunatic, as were then occupied by him, and continues his business therein, for the purpose of selling his stock, and also collects rents from other portions of the demised premises which had been let by the lunatic to a sub-tenant, he becomes personally liable for the rent due to the lunatic’s lessor.
    A petition is the proper proceeding whereby to compel him to pay the rent due.

      Appeal by Albert Strasburger, as committee, from an order directing him to pay tbe sum of $8,125 and interest from tbe 1st of November, 1884..

      Gibson Puts ell, for Strasburger, committee, etc., appellant.

      John L. Oadwallader, for petitioner Otis, respondent.
   Daniels, J.:

The amount directed to be paid was for tbe rent of tbe premises-occupied under a lease taken by tbe lunatic. After be was adjudged a lunatic and a committee was appointed for the management of his estate, the persons so appointed took possession of so much of the demised premises as had been occupied by the lunatic, and continued his business therein for the sale of his stock and the transaction of his business incidental thereto. That possession continued until the 1st of November, 1884, when the rent directed to be paid became due.

It was also shown that the committee had collected rents for other portions of the demised property which had been let by the lunatic to a sub-tenant, and these facts establish such a possession of the property in the committee as in judgment of law amounted to an acceptance of the lease. He had the possession of the property for the benefit of the estate committed to his charge and management, and enjoyed it for the advantage of that estate. His-appointment alone as committee of the estate of the lunatic, without voluntarily entering into the possession of the property, would not have rendered him chargeable with the payment of the rent. But his election to talje possession of the property under the right, created by the lease, and afterwards making use of it for the benefit of the estate committed to his custody, were sufficient to charge him with the liability upon which the order was placed. For it has-been held that an executor, assignee or receiver, who may enter into, and enjoy possession of, demised property in this manner, subjects himself to liability to pay the rent reserved as the equivalent for such use and enjoyment. This subject was considered very much at large in Journeay v. Brackley (1 Hilton, 447). The cases were there assiduously collected and considered, and this rule was deemed to be supported by them. A like examination was made-in Morton v. Pinckney (8 Bosw., 135). The proposition was likewise further considered in Commonwealth v. Franklin Insurance Company (115 Mass., 278), and Woodruff v. Railroad Company (93 N. Y., 609, 624). These two cases were those of receivers, but ¡they do not differ in any essential respect from that of the committee who was held liable to pay in this instance. For their liability was not placed upon any circumstance peculiar to their office as receiver, but upon the fact that they had elected to take, and did • enjoy the use and possession of the demised property. The liability was maintained exclusively upon this circumstance, which does not -distinguish them in principle from the case of this committee. In Moore v. Higgins (decided by this General Term in October, 1884), the same principle was also acted upon and applied in the determination of the liability of a temporary receiver. As the law has been established, this committee rendered himself liable for the rent ordered to be paid, by the possession and use made by him of -the demised estate, and the proceeding by petition to obtain the order is the course of practice sanctioned in Executors of Brasher v. Van Cortlandt (2 Johns. Ch., 242).

The order from which the appeal has been taken should be , affirmed, with the usual costs and disbursements.

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

•Order affirmed, with ten dollars costs and disbursements.


text:
    OSCAR G. RAFFERTY, Plaintiff, v. JAMES H. WILLIAMS, Respondent, and ALEXANDER H. PALMER, Appellant.

      .■Practice — right of a defendcmi to have a controversy between himself a/nd a co-defendant settled— Oode of Oivil Procedure, sea. 1204 — it only applies to causes of action connected with the one upon which the action is brought.

    In an action by a judgment-creditor to set aside as fraudulent a transfer of property from the debtor to bis co-defendant, the debtor cannot, under tbe power ■conferred by section 1204 of tbe Oode of Oivil Procedure, while admittingtbe transfer, but denying tbe fraudulent intent, allege that tbe transfer was obtained from him by means of a fraud practiced upon him by bis co-defend.ant, and demand that tbe assignment be for that reason vacated and set aside.

      Appeal by the defendant Palmer from an order denying a motion for the production and deposit by the defendant Williams of certain agreements and other documents.

      Aaron J. Vcmderpoel, for Palmer, appellant.

      Eugene Smith, for defendant Williams, respondent.
   Daniels, J.:

The action is by the plaintiff, as a judgment creditor of the defendant Palmer; upon a judgment recovered in the Marine Court of the city of New York, after the docketing of the judgment and the issuing and return unsatisfied of an execution against property, to have property transferred by the judgment debtor to the defendant Williams appropriated and sold for the payment of the judgment. To maintain the action it has been alleged that the transfer from the judgment debtor to the defendant Williams was made with intent to hinder, delay and defraud creditors. The fact of the making of the transfer is admitted by the answer of the defendant Palmer, who denied that it was made to hinder, delay or defraud creditors, and he alleged in his answer that the transfer of the property was obtained from him by means of a fraud practiced upon him by the defendant Williams, and for that reason demanded that it should be vacated and set aside in this action, and for that purpose a copy of his answer was served upon the attorney for the •defendant'Williams. It was to enable him to maintain the allegation that he had been induced to transfer the property by fraud that he applied for an order requiring the production of the agreements and assignments through which the transfer was made. The object of the production of the papers was to enable him to obtain proof to establish the truth of his allegations. But this allegation of fraud on the part of the purchaser, by which the property was alleged to have been obtained from- him, was in no way connected with the subject-matter of the plaintiff’s action. The cause of action presented by the plaintiff was that of a judgment creditor to have the sale and transfer of the property in controversy, made by the judgment debtor to the defendant Williams, set aside as fraudulent as to creditors, and to have the property applied to the payment of his debt, while that set forth in the answer of the defendant Palmer was for the rescission of the sale and transfer of the same property upon the allegation that it had been obtained from him by fraud. These were two distinct and independent causes of action, in no way whatever connected with each other, and the defendant Palmer was therefore not permitted, even by the broad language of section 1204 of the Code of Civil Procedure, to make it by his answer a part of the controversy intended to be presented by the plaintiff’s complaint. By that section the court has been empowered to determine the rights of the parties between themselves, and to grant to a defendant any affirmative relief to which he is entitled, but it does not permit a new and independent right of action to be brought into the litigation by the answer of either of the defendants. It was intended to confer authority upon the courts to make a full and complete determination of the controversy in the action itself by settling and determining all its incidental consequences, not to permit a distinct and separate cause of action to be brought into the case by means of the answer of one or more of the defendants, when that cause of action shall, not be, as it is not in this case, in any form connected with the subject-matter of the action. This-was considered in Kay v. Whittaker (44 N. Y., 565, 576), and Lansing v. Hadsall (26 Hun, 619), where the effect of this section of the Code was restrained and limited in this manner. As the .defendant had no right by his answer to interpose this additional cause of action,- in the suit' brought by the plaintiff for the collection of his judgment, it follows that he could not secure a discovery of agreements, documents or papers in the possession of the other defendant, which might supply pertinent evidence to maintain it. The cause of action alleged by him was wholly irrelevant to the controversy presented by the complaint, and could not be made the subject of consideration or trial in this suit;. for that reason it was-not necessary that the documents and papers, stated by him to be required for a proper trial of the cause of action set forth in his answer, should be produced or deposited for his benefit. The application was'not within section 803 of the Code of Civil Procedure, or any other authority possessed by the court over this subject, for the simple reason that in this action the right asserted by him in his answer cannot now be made the subject of investigation or controversy.

Tbe order should be affirmed, together with ten dollars costs besides the disbursements.

Davis, P. J., concurred; Brady, J., dissented.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.: Brady, J. :

text:
    ROBERT W. GLEASON, Respondent, v. JAMES W. SMITH, Appellant.

      Settlement of a case — when an order denying a motion for a resettlement is a/ppealable.

    Upon the trial of this action the court excluded all evidence to be offered by the defendant in support of a counter-claim set up in his answer. A motion to have the case resettled and to have the ruling of the court excluding such evidence, and the exception of the defendant thereto, inserted, was denied:

      Sold, that this was error.
    That as the right of the party to review the action of the court below was absolute, so also was his right to have a complete and accurate statement of the matters determined against him set forth in the case, and that as this was a substantial right, an order affecting it was appealable.

      Tweed v. Davis (1 Hun, 252) distinguished.
    Appeal, from an order denying a motion to resettle á case.

      J. Noble Hays, for the appellant.
    ■ Charles F. Wells, for the respondent.
   Daniels, J.:

It was urged in support of the appeal that the case had been defectively settled in two material respects. But it is only important to consider the manner in which the court announced its decision to be, that all evidence should be excluded that was to be offered in support of the counter-claims alleged in the answer, on the ground that no agreement to repair the machinery had been set forth. That this announcement was made is stated in the affidavits in support of the motion, and it was not denied by any proof whatever produced on behalf of the plaintiff. It is to be assumed, therefore, that it was made as it has been alleged to have been on behalf oí the defendant. This announcement was in effect a decision excluding the proof which immediately preceding it had been offered by the defendant to show that the machinery had broken down, and all other evidence which might be proposed to be given to prove the counter-claim set forth in the answer. It was virtually, therefore, a decision excluding all evidence which might be offered in support of this part of the defendant’s defense. And as an exception was taken to it, the case could not otherwise present the defendant’s rights than by making this decision a part of it. If it was made, as it is stated in the affidavits, then the motion should have resulted in an order directing a resettlement of the case so far as to allow it to be inserted.

That an appeal may be taken from the order follows from the language of subdivision 4 of section 1347 of the Code of Civil Procedure. For that has provided for an appeal from an order in all cases where it shall affect a substantial right. And it is a substantial right of a party making a case to review the trial and disposition of an action, that the evidence or facts, and the rulings made upon either, to which exceptions may have been taken, shall be inserted in and made a part of the case. In no other way can the decision of the court, before which the trial takes place, be reviewed or corrected where án error may have intervened to the prejudice of the defeated party. As the right of review is absolute, so must be also the right to have a complete and accurate statement of the matters determined against the party, which it is the object of the reconsideration to review and correct.

No discretion over this subject is vested in or allowed to a judicial tribunal. But the party complaining of the result of the litigation is absolutely entitled to have such a statement made of the proceedings drawn in question by him as will enable him to secure an intelligent and effectual reconsideration of what may have taken place. The case differs in the manner in which it has been here presented from that of Tweed v. Davis (1 Hun, 252). There the application was for a writ of mandamus, which, it was held, could not be issued for the purpose of producing changes in the settlement of the case. The proceeding there invoked was not appropriate to that object. While here the course pursued was that which has been sanctioned by the settled practice, and as it resulted in an order adversely to the defendant and deprived him of the statement in the cáse which according to the affidavits, he appears to have been entitled to have inserted, it was regular for him to appeal from the order and thereby secure a review of it by the General Term. No right can well be more substantial than that of a party to a complete and accurate statement of the proceedings through which he asserts that he has been unlawfully defeated in his suit or his defense. And to secure its observance this general right of appeal has been given by this section of the Code. As the facts were shown the defendant was entitled to have this additional statement at least made to the case, showing that there had been a ruling, to which he had excepted, excluding all the evidence which might be offered in his behalf to prove his counter-claims.

The order should be reversed and an order entered directing a resettlement of the case in this' respect and making the addition proposed to be made, provided the decision, as it has been stated, was in fact made upon the trial, but without costs to either party.

Davis, P. J., concurred.

Brady, J. :

I concur, inasmuch as there is no dispute about the facts.

Order reversed ; order to be entered as directed in opinion, without costs to either party; order to be settled by Daniels, J.


text:
    JAMES CAGNEY, Appellant, v. THOMAS FISHER and Another, Respondents. SAME v. SAME.

      Motion to continue an injunction — right of the plaintiff to furnish additional affidavits— Code of Civil Procedure, sec. 627.
    The right to sustain an injunction by new affidavits when the motion to vacate is supported by affidavits furnished by' the defendant, which is conferred by section 627 of the Code of Civil Procedure, is confined to motions to vacate, and does not include either by language or implication the case of a motion to continue an injunction order previously made.
    In the latter case the right to furnish additional affidavits to sustain the injunction rests in the discretion of the court.

      Appeal from an order denying a motion to continue an injunction order, and from a further order denying a motion to resettle the first order.

      Daniel P. Hayes, for the appellant.

      John H Bird, for the respondents.
   Daniels, J.:

The object of the injunction was to restrain each of the defendants from commencing or prosecuting an action against the plaintiff for the recovery of certain personal property, during the pendency of this action, which was brought for the recovery of a judgment of interpleader.

Upon the hearing of the motion an affidavit was presented, made by one of the defendants, showing that the plaintiff had been guilty of an intentional trespass in taking and removing the property in controversy from her possession; and that precluded him from maintaining an action of interpleader, for it proved the fact to be that he was not a mere bailee of the property, as was alleged to be the case in the complaint, but had acquired the possession of it by a positive wrong on his part.

Upon the hearing, when this affidavit was produced, the plaintiff asked leave to introduce additional proof in answer to it; but that was denied by the court. In that denial it has been urged that the court erred, and to support the allegation of error it has been claimed that the plaintiff had a positive right to introduce such further proof, and section 627 of the Code of Civil Procedure has been relied upon as securing that right. But while that section has provided for the reading of further affidavits on the part of the plaintiff, it has been made applicable only to motions to vacate or modify an injunction. It does not include either by its language, or any implication to be derived from it, the case of a motion to continue an injunction order previously made. Whether the proof produced by way of answer to the application, shall itself be opposed by further affidavits, is a ' matter resting in the discretion of the court hearing the application, and that discretion under the circumstances stated in the opposing affidavits does not appear to have been improperly exercised against the plaintiff in this case. If it liad been shown that he could have supplied proof which would have overcome the statements contained in the affidavit of the defendant, the case would have been different. But no proof of that description was offered to the court. All that was done was by way of request, that the case should be postponed to enable the plaintiff to produce such further evidence, without any authenticated statement that it could be obtained. The court deemed that to be insufficient, and it was rightly so considered, in view of the positive, as well as probable statements contained in the affidavit of the defendant, in proof of the fact that the plaintiff was not a bailee of the property, but had taken it of his own intentional wrong. The application was made to resettle the order by adding the statement that the plaintiff had requested leave to file or submit affidavits in reply. But it was not essential to any right of the plaintiff, that this statement should have been inserted in the order, and the court accordingly did not err in refusing the leave for which the application was made.

The orders should be affirmed, together with the usual costs and disbursements.

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

Orders affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    ANTONIO GONZALES DE MENDOZA Y. BONILLA, and Others, Respondents, v. JOSE M. MESTRE, Appellant.

      Foreign trustees and amcüla/t'y administrators — respective rights of, to a fund in this State, considered.

    Where a testator, residing and dying in a foreign country, leaves a will which is there admitted to probate and creates a trust thereby and appoints as trustees thereof the persons named as executors in the will, the duties of trustee being conferred upon the executors without regard to their duties as such executors, the trust should be administered by the foreign trustees and not by an ancillary administrator, with 'the will annexed, appointed in this State, even though the trust fund is situated here.
    Appeal from a judgment overruling a demurrer to the complaint.

      Oleott, Mestre dé Gonzales, for the appellant.

      J. Brymit Lmdley, for the respondents.
   Davis, P. J.:

The issues of law joined by the demurrer to the complaint in this case were referred for hearing and decision to G-. Zabriskie, Esq., a counselor of this court, and on his findings and decision judgment has been entered. The learned referee accompanies his report with an interesting and able opinion upon which the conclusion of the appellate court might well be rested; for our examination of the appeal has brought us to the same result. The plaintiffs who are residents of the island of Cuba, a possession of the kingdom of Spain, sue as trustees created by and under the last will and testament of Ignacio Maria Zangioniz, a resident, at the time of publishing his will, of Cuba, inhere he was domiciled at his death. His will was probated in due form in that island, and letters testamentary were issued to plaintiffs who were nominated executors by the will. The testator at the' time of his death owned personal property consisting of goods, chattels and credits in the city of New York, and for the due administration of which the plaintiffs, as executors of the will, gave their power of attorney to the defendant to sue out of the ■'Surrogate’s Court of said city of New York letters of administration ancillary with the will annexed, to administer the goods, chattels and credits of the testator in said city. Such letters were granted, and the defendant as administrator ancillary administered upon the estate, and upon completing such administration transmitted and paid over to the plaintiffs, as executors of the will, the property and its proceeds except the bonds for the possession of which this suit is brought. Those bonds he retains, claiming that in his capacity of administrator ancillary with the will annexed, whatever trusts are created by the will of the testator in respect of them are devolved upon him and are to be executed by him as trustee for the benefit of the eestuis que trust.

The bonds are described in the will as “ ten thousand Jersey city bonds,” in the hands of Don Juan M. Ceballos of New York, and they came into the possession of the defendant as such administrator, and on the final settlement of his accounts he was directed by the decree of the surrogate to retain the same until the further order of the Supreme Court of the State of New York or of the said Surrogate’s Court as to the disposition or custody of the same.

The defendant has transferred the bonds to his own name a& trustee under the will, and on demand of the plaintiffs of delivery and possession he claims to be entitled to their possession as trustee under the will of the testator by virtue of his appointment as administrator with the will annexed. The clause of the will upon which the question in controversy arises is the eighth, and it is in these words:

“Eighth. I declare that I give and bequeath ten thousand dollars of the Jersey City bonds which I have in the hands of my good friend Don Juan M. Ceballos of New York, which produce seven per cent per annum to my dear goddaughter Donna Cecilia Ignacio Heyeman Y. Jenes, upon the express condition that neither her father nor any one shall be allowed to dispose of or take the same, as I leave to my executors exclusively the duty of carrying out the provision. The income from this investment of ten thousand dollars, or any other that shall be made in its stead, if it be deemed proper so to do, shall go to her mother, Donna Angela Jenes de Heyeman, as life tenant during her life, and to go thQreafter to my said goddaughter. If Donna Cecilia Ignacio Heyeman shall die before her mother, without having any issue, her mother shall have the right to dispose of the amount so invested, hereinabove referred to, as she may deem best. If my goddaughter Donna Cecilia shall leave any issue, the inheritance shall go to the said issue upon the death of said Donna Angela Jenes de Heyeman. If at the time of my death the said bonds or funds set apart for this legacy in favor of my said goddaughter Donna Cecilia, of ten thousand dollars, shall not be in existence, she shall have the right to a like sum of ten thousand dollars in gold, the same to be taken out of my estate^ and to be subject to the same condition. That my executors shall see that this sum shall be invested in funds abroad, together with all the other conditions which are referred to in this eighth clause, in all its parts, as well in regard to the life interest in favor of her mother Donna Angela Jenes, as well as the other points herein stated.”

That this clause of the will creates a trust estate, which by its terms is invested in the persons therein named as executors, who are thereby created trastees and charged with all the duties and obligations of the trust, does not seem to be in contention between the parties. "What the defendant contends is that ■ the estate in trust .and the trust thus created is now so far as relates to the bonds in New York, by virtue of his appointment as administrator with the will annexed lawfully devolved upon and invested in him so that he is .now clothed with the right, title and duties which otherwise would have ■continued to belong to. the.plaintiffs as trustees. But this position cannot be maintained, because it is obvious from the provision of the will in relation to the trust and its corpus, that the testator intended the ■executors to take as trustees with powers which they, are to exercise as such, without regard to their duties as executors, and which may .and' if necessary are to continue in full vigor after their powers and ■duties as executors are exhausted and terminated. It was said in Bain v. Matteson (54 N. Y., 663) that an administrator with the will annexed in all respects takes the power of a renouncing or ■deceased executor, unless a personal confidence in the discretion of the person who is named as executor is plainly expressed or to be implied. Where the power or trust appears to be annexed to the office of executor, it may be executed by an administrator with the will annexed.” (And see Dunning v. Ocean Nat. Bank, 61 N. Y., 497; Beekman v. Bonsor, 23 id., 303.) In this case we do not doubt that the will gives powers to the donees of the trust distinctly ■different from their duties as executors; and that the powers granted and duties involved both imply and express a personal confidence reposed in the individuals over and above and beyond those implied by the selection of them as executors. And the word “ executors,” is used by the testator as a convenient form of naming the individuals as the trustees who are to execute the trust created and conferred on them. In this case, therefore, the powers and duties touching the trust are. not those of executors virtute officii, and do not pass to an administrator with the will annexed. (Hood v. Hood, 85 N. Y., 571; Mott v. Ackerman, 92 id., 539.) We need not stop, therefore, to consider the question whether in such a. ■ease as the facts here present, where the administration with the will annexed is plainly ancillary, obtained upon the power of attorney ■of executors who still retain that relation to the will and are pursuing its execution by themselves, through a mode requisite under the local law of a foreign State in which some portion of the property •chances to be situated, for the purpose of drawing that property or its proceeds lawfully into their possession in the jurisdiction in which they are still executing the will, the fact of the legal necessity of an ancillary administrator can rightfully he held in any case to carry to such administrator any trust or power whatever under the will except only such as is necessary to the complete exercise of his functions as ancillary administrator. We are not aware’that such a question has ever, before arisen, but when it is necessary to the deci-. sion of such a case we apprehend courts will hesitate to construe the •statutes in such a manner that the ancillary administrator with the will annexed can capture for himself any distinct trust created by a , will which the nominated and duly qualified executors are still engaged in executing.

As to the question of parties there does hot seem to be any reason for holding that in determining this question of a right of possession the eestuis que trust a.re either necessary or proper parties. The defendant in the view taken, is simply a wrong-doer from whom the plaintiffs as trustees are seeking to recover property of which they .are the legal owners.

As the defendant asserts a legal title as trustee under the will he must stand or fall with that ground. He has no right now to claim that plaintiffs ought first to have obtained an order of .this court or of the surrogate for the delivery of the trusts.

Our conclusion is that the judgment should be affirmed with •costs.

Daniels, J., concurred.

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

Judgment affirmed, with costs.


author: Daniels, J.;

text:
    THE NATIONAL FILTERING OIL COMPANY, Respondent, v. THE CITIZENS’ INSURANCE COMPANY OF MISSOURI, Appellant.

      Royalties — insurable interest — what is.

    Appeal from a judgment in favor of the plaintiff, recovered on a trial before the court.
    The recovery was for the amount of royalties which John Ellis & Co. failed to pay the plaintiff for the use of certain patented inventions in filtering oil. Their failure to pay was caused by a fire injuring their premises and disabling the filtering apparatus. The plaintiff was not the owner of any interest in the building or the apparatus used therein, but by agreement it had transferred to the firm of Ellis & Co., which carried on its business in the building, the right to there use the inventions owned by it, in filtering oil for certain royalties mentioned in a written agreement made between them. The royalties consisted of a specified sum upon each gallon of oil in which the patented process should be used. The extent to which the inventions might be used by Ellis & Co., and the amount of oil filtered by them was not limited by the agreement, but it was provided that the minimum sum to be paid for royalties after the first year mentioned in the agreement should not be less than the sum of $3,000. The agreement further provided that on or before the tenth day of each month, after its execution, the firm of Ellis & Co. should render to the plaintiff a written statement of all the oil manufactured under the inventions or processes owned by the plaintiff, and which shoxxld be sold or conveyed for sale by the firm during the preceding month. And on all suck orders, without regard to the date of its manufacture," the royalty agreed upon became due and payable to the plaintiff within thirty days from the date of each of such returns or statements. It was further agreed that the exclusive character of the license given to Fib's & Co. by the plaintiff, should continue only so long as they should occupy the oil works on Sullivan street in South Brooklyn, •except that if the works should be destroyed by fire, or their occupancy be prevented by law, or by some cause for which they were manifestly not responsible and beyond their control, then the license was to retain its exclusive character.
    To protect the plaintiff against its loss of royalties under this contract, the policy upon which the action was brought was executed and delivered by the defendant to it. The policy provided that the company, in consideration of thirty-five dollars, do insure National Filtering Oil Company, and their legal representative, for one year from the 1st day of May, 1877, to the 1st day of May, 1878, at twelve o’clock at noon, against loss or damage by fire, to the amount •of $1,000 on royalties, payable to insured from the business of John Ellis & Co., carried on in premises situate in Brooklyn, on block bounded by Sullivan, Wolcott and Ferris streets and Buttermilk •channel.
    Whereas, the above-named firm of John Ellis & Co., by virtue > of an agreement with the assured, are bound to pay to them royalties for the privilege of using their patents, which royalties are guaranteed to amount to $250 per month. Now, therefore, the conditions of this insurance are, that in case the premises occupied as above by said Ellis & Co. shall be damaged by fire so as to cause a 'diminution of said royalties this company will make good to the insured the amount of such diminution, during the restoration of said premises to their producing capacity immediately preceding the said fire. In case of the destruction by fire of said premises, then this company shall pay the full amount insured, it being agreed that this company shall be entitled to subrogation to the extent of any loss paid of any and all claims which may exist under the agreement above mentioned against the said John Ellis & Co. Upon the trial of this action proof was given tending directly to establish the fact that the amount of royalties payable to and received by the plaintiff, while the premises of Ellis & Co. were disabled by the fire, was thereby materially diminished in consequence of the inability of Ellis & Co. to proceed with the business of filtering oil. But as during this period of time Ellis & Co. did pay to the plaintiff an amount exceeding the $250 per month for royalties under the agreement, the defendant claims that the plaintiff failed to establish a loss under the language of the policy.
    The court at General Term, after holding that this claim could not be sustained, and that the policy was intended to insure the plaintiff for any loss of' royalties, over and above the amount of that which Ellis & Co. were bound to pay in any event, said: “ This was not a wager policy. That was no part of its design or intent, but it was to provide the plaintiff with indemnity for a loss which it might sustain by the injury or destruction of the premises mentioned in it and occupied by Ellis & Co. While the defendant was the owner of no interest in, and had no lien upon, the property itself, its right to royalties for the use of its patents ’ beyond the stipulated sum of $3,000 per year was dependent upon the uninterrupted business of Ellis & Co. If, by the occurrence of a fire, that business should be wholly or partially suspended, then the right of the plaintiff to its royalties over the stipulated amount might, for the time being, be correspondingly diminished. Its right so far depended upon the exemption of the premises of Ellis & Co. from disability caused by fire, and that created an insurable interest in the plaintiff as that has been defined in the case of Rohrbach v. Germania Insurance Company (62 N. Y., 47, 54), where it was said, in the opinion, that ‘ if there be a right in or against the property which some court will enforce upon the property, a right so closely connected with it, and so much dependent for value upon the continued existence of it alone, as that a loss of the property will cause pecuniary damage to the holder of the right against it, he has an insurable interest.’ (Id., 54; Harvey v. Cherry, 76 id., 436.) The plaintiff’s rights were so connected with, and dependent upon, the building in which the business of filtering oil was carried on by Ellis & Co., as to be included within this general principle. Whether it should receive the royalties beyond • the guai’anteed amount resulting from the continuance of the business of Ellis & Co., depended upon the preservation of their property from fire. If it should be destroyed or so far injured as to interrupt the transaction of their business, then, by that destruction or interruption, the plaintiff would lose the payments which would be otherwise made to it. It was a right contingent upon the happening of a fire, and one against which the plaintiff might well be protected by an insurance of this description. It was to the plaintiff literally an insurance against loss by fire. Its right to the royalties was a right of property. (Gillett v. Bate, 86 N. Y., 87.) And as much entitled to protection by insurance against the contingency of fire as any other property would be. * * *
    “ A portion of the works had been impaired before the fire took place, and to repair them and increase the capacity of the works it was intended to suspend the business to make the necessary changes, and that the evidence showed would have been done about the middle of the following month of November. But the fact that the business might in that manner have been suspended and an equal loss encountered by the plaintiff to that caused by the fire itself, will not relieve the defendant from liability, for the loss in controversy resulted from no other condition or disability of the premises than that which was caused by the fire. And the risk of that loss the company took upon itself by virtue of the policy. That an equal loss might have been produced by another cause subsequently arising, if the fire itself had not occurred, can form no legal answer to the plaintiff’s right to indemnity under the terms of the policy.” * * *

      George W. Pa/rsons, for the appellant.

      Coudert Brothers, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred»

Judgment affirmed.


author: Davis, P. J.;

text:
    ABRAM B. CONGER and MARY R. McCREA CONGER, his wife, Appellants, v. SARAH M. DURYEE, Impleaded, etc., Respondent.

      Action of ejectment — recovm'y of possession by the plaintiff, under a judgment which is'reversed on appeal — right of the defendant to be placed in possession again— Code'of Civil Procedure, sea. 1529.
    Appeal from a judgment in favor of the defendant, entered on a verdict directed by the court.
    This was an action of ejectment to recover the possession of certain premises described in the lease set forth in the complaint. The respondent was in possession as assignee of the lease. On a former trial the plaintiffs recovered judgment, in conformity to which the respondent, who was then in possession, surrendered possession to the plaintiff, but on appeal the judgment was reversed and a new trial ordered. On the new trial the plaintiffs appeared and made no proof, but conceded that under the decision of the Court of Appeals in this case (90 N. Y., 594) they had no cause of action and asked leave to submit to a nonsuit. The defendant insisted on the defense stated in her supplemental answer in order that she might be restored to1 possession, and the court permitted her to prove the facts showing that she was in possession as assignee and had surrendered possession under the judgment, and although the terms of the lease had expired she still had a right to the possession of the premises until the buildings erected thereon, in accordance with the provisions of the lease, should have been paid for by the plaintiff, etc. To this ruling, and to the proof given under it, the plaintiffs duly excepted. At the close of the evidence the •court directed a verdict for the defendant, upon which the judgment now appealed from has been entered.
    The court at General Term said: “We see no reason to question the correctness of the ruling of the court in holding that the plaintiff, by submitting to the nonsuit, could not deprive the defendant of the right to show the facts entitling her to a restitution of possession. The plaintiff offered in evidence two mortgages made by Jacob Duryee, the original lessee of the term created by the ease, for the purpose of showing that liens existed upon the term •created by such mortgages. Tbe court excluded them as immaterial, and the ruling excluding them was plainly right. Upon the verdict rendered the defendant was entitled, under section 1529 of the Code of Civil Procedure, to a judgment awarding her restitu tion of the .possession of the property and execution thereupon for the delivery of possession to her. (Garleton v. Da/roy, 75 N. Y., 377; Martin, v. Rector, 28 Hun, 409.) If the judgment had been limited to such restitution as is directed by the Code, there would, we think, be no cause of complaint. But in addition to that it contains an adjudication which may perhaps be embarrassing to the plaintiffs, or persons holding under them, in the future pursuit of their rights and remedies. That provision is as follows: It is ordered and adjudged that the said defendant Sarah M. Duryee, as assignee of the lease referred to in the said amended and supplemental answer herein, recover of the plaintiffs Abram B. Conger and Mary Rutgers MeCrea Conger, and each of them, and all persons holding under them or claiming to hold under them subsequent to the commencement of this action, the possession of the premises described in said complaint. And it then proceeds to adjudge restitution and execution therefor as provided by the Code. Ye are of opinion that this judgment of recovery of possession is not necessary to the purpose of restitution of possession, but may perhaps be embarrassing hereafter as establishing some rights against the plaintiffs or the owners of the fee under them, embarrassing to the prosecution of their legal claims.
    “We think the judgment ought to be modified by striking out the portion quoted, leaving it to stand simply as a 'judgment of restitution to possession, and as so modified the judgment should be affirmed; but as the appeal was not taken on this ground, nor is this modification suggested by the points, we think the respondent should have costs.”

      James A. Seamcm, for the appellant.

      G. Norwood, for the respondent.
   Opinion by

Davis, P. J.;

Beady and Daniels, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent.