text:
    The People ex rel. Charles F. Zeese, App’lt, v. Vincent M. Masten, as Superintendent, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Constitutional law—Industrial school.
    Chap. 639 of 1886 is constitutional.
    Appeal from an order dismissing a writ of habeas corpus.

      D. F. McLennan, for app’lt; George A. Carhahan, for resp’t.
   Hardin, P. J.

—Chapter 143 of the Taws of 1846 authorizes the establishment of a house of refuge for juvenile delinquents. See 3 Rev. St. (7th ed.) p. 2658. In § 13 of the act, the manaagers are directed To receive and take into the said house of refuge, all male children under the age of eighteen years, and all female children under the age of seventeen, who shall be legally committed to the said house of refuge as vagrants, or on a conviction for any criminal offence by any court having authority to make such commitments; the said managers shall nave power to place the said children committed to their care, during the minority of such children, at such employments, and cause them to be instructed in such branches of useful knowledge as shall be suitable to their years and capacities; * * *” provided, “that the charge and power of the said managers upon"and over the said children shall not extend, in the case of females, beyond the age of eighteen years, or in the case of males, beyond the age of twenty-one years.”

In § 16 of the act, it was provided that courts and magistrates “may in their discretion sentence to said house of refuge, any such male who may be convicted before them of any pent larceny.” By chapter 593 of the Laws of 1886, p. 835, § 16 of chapter 143 of the Laws of 1846 was repealed; and the same legislature substituted, in place thereof, provisions found in chapter 539 of the Laws of 1886. That act changed the name of the western house of refuge to “The State Industrial School;” and in § 3 of the act authority is given to the board of managers of the state industrial school to receive into said school all children, “ Who may hereafter be sentenced to * * * the state industrial school, and to retain the same subject to the rules and regulations of said institution, and said board of managers shall have the right, and it shall be-their duty to receive and retain all such persons committed to their custody, and such right and duty shall not be affected, prejudiced or impaired by reason of, or in consequence of, any technical defect or clerical error in the warrant of commitment.”

Authority is given to the courts to direct a confinement in a house of refuge of juvenile delinquents, by § 701 of the Penal Code; and the manner in which such power shall be exercised is regulated to some extent by § 713 of the Penal Code. By chapter 387 of the Laws of 1852, the act of 1846 was amended, and it was provided in the second section of the amendatory act that it shall be the duty of courts of criminal jurisdiction, “To ascertain by such proof as may be in their power the age of every delinquent by them respectively sentenced to the said house of refuge, and to insert such age in the order of commitment, and the age thus ascertained shall be deemed and taken to be the true age of such delinquent.”

In this case, the age, so ascertained and stated, of the delinquent, William Zeese, was 13 years, as appears in the commitment made by police justice Mulholland, February 1,1892. See chapter 216 of the Laws of 1891. The commitment showed a conviction of petit larceny, and it contained these words: “It is adjudged that he be confined in the state industrial school, in the city of Rochester, Hew York, under the provision of the statute relating thereto, and he is hereby committed to the custody of the board of managers of the said industrial school until discharged by due course of law.”

The commitment seems to be in accordance with the statute, and is not void for indefiniteness. The institution is for the reformation of delinquents, and had its origin in and is maintained in a charitable spirit towards delinquents. By adjudication made by the commitment magistrate, the delinquent escapes from the penalty of the law, and avoids the penalty prescribed for the crime he had committed, bv being sent to the charitable institution to be reformed. The Rochester industrial school is so nearly like the house of refuge organized under chapter 126 of the Laws of 1824 that the construction of that act in People v. Degnen, 54 Barb. 105, is quite applicable here, and is an authority sustaining the order appealed from. Appellant calls attention to § 15 of the Penal Code, and contends that it prescribes á limit of punishment, to one year. In People v. Degnen, supra, it is held that the sentence is not to a penal institution, and that the authority to send to such an institution “is beneficent in its effect on the individual prisoner and on society.” However in § 15, there is a provision to the effect that the limit of one year applies only where there is no “other statutory provision in force at the time of the conviction and sentence.” When the sentence imposed in this case was given, the statutory provision to which reference has been made was in force and applicable to the industrial school, and therefore § 15 is not applicable to this case. Nor do we think § 13 of the Penal Code is applicable to the case before us. Nor does the ease of Gross v. Bice, 71 Me. 241, apply here. In that case the power to put a prisoner, serving under a fixed term, into "a dungeon, and the time of such incarceration be added to the fixed term, gave a discretion as to the liberty of the convict who was serving under a penal sentence of fixed duration. Section 713 of the Penal Code seems to require a child under 16 years of age to be committed to some reformatory, charitable or other institution, authorized by law to receive and talce charge of minors, and to provide that, when he is so sentenced, the institution, “until majority or for a shorter term,” may subject him to such discipline and control as a parent “may lawfully exercise over a minor.” It is insisted by the learned counsel for the appellant that the relator, the father of the infant, is entitled to the earnings of his child, as well as to his custody, and that such rights cannot be taken from him without notice. Although the return states that the “father was present at the arraignment and conviction of Willie Zeese” in such court, we may properly meet the contention of the appellant irrespective of that fact. The commission by the child of a crime is conclusively established. The statute to which reference has been made provided a mode of treatment of the child by the court and institution, for the good of the public and the protection and benefit of the child. The legislative power was exercised in adopting the legislation “to secure the general comfort, health, and prosperity of the state. Com. v. Alger, 7 Cush. 84 ; Slaughterhouse Cases, 16 Wall. 62. Such legislation has existed for many years, and received the approval of judges and courts, and we are of the opinion that it does not violate any of the provisions of the federal or state constitution. In re Jacobs, 98 N. Y. 108 ; People v. Budd, 117 N. Y. 1; 26 St. Rep. 533 ; In re Ewer, 70 Hun, 239; 54 St. Rep. 348; affirmed, 141 N. Y. 129 ; 56 St. Rep. 668 ; In re Bayard, 25 Hun, 546; Towle v. Remsen, 70 N. Y. 321. We think the legislation was adopted in good faith, and for the purpose of protecting the public, as well as for the pupose of saving such children from profligacy and crime, and that it is valid. People v. Degnen, supra; In re Donohue, 1 Abb. N. C. 1; House of Refugee. Ryan, 37 Ohio St. 197. In State v. Ray, 63 N. H. 406, it was said that: “Where the commitment is lawful, the loss by the parent of the custody of his child follows as one of the incidents for which there is no remedy.” See also In re Ewer, 70 Hun, 239; 54 St. Rep. 348.

We think the conviction, commitment, and adjudication made by the committing magistrate were proper and valid, and that the order made by the justice of this court, discharging the writ and remanding Willie Zeese to the state industrial school at Rochester, should be affirmed. Order affirmed. All concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    The People, Resp’t, v. Warren S. Bates, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Officer—Public office.
    In a prosecution for intruding into a public office, the defendant may show that he acted in good faith under the belief that he was entitled to it.
    Appeal from a judgment of conviction for intruding into a public office.

      John A. Milne and S. D. Halliday, for app’lt; J. H. Jennings, Dist. Atty., for the People.
   Merwin, J.

—-By § 56 of the Penal Code, it is provided that— “A person who willfully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, willfully exercises any of the functions of his office, after his right to do so has ceased, is guilty of a misdemeanor.”

Under this, the defendant was convicted of intruding into the office of excise commissioner in the town of Ulysses, in the county of Tompkins. In that town the excise commissioners in 1890 were J. B. Spaulding, whose term of office expired in the year 1891, L. W. Carpenter, whose term expired in 1892, and H. C. King, whose term expired in 1893. These persons met as a board of excise on May 5,1890, and, after transacting the usual business of the year, they adjourned to J une 5,1890. At this date they met and entered upon their minutes the following: “Upon examination of a law passed by the last legislature, the board have decided that they are not qualified to act as excise commissioners, having failed to comply with the requirements of said law.”

They thereupon adjourned indefinitely, and did not meet again during the year. The law which they referred to was chapter 163 of the Laws of 1890, which was passed and took effect on April 22, 1890. It provided that within thirty days after the passage of the act, every excise commissioner should make and subscribe an oath, before a proper officer, “ to the effect that he is neither directly or indirectly interested in the manufacture or sale of any spirituous or malt liquors, ales, wine or beer,” and that such oath should be filed in the clerk’s office of the town. It was also provided that a failure to take such oath “shall disqualify any one from holding, or debar any one from, continuing to hold, any office or position mentioned in this act”

At the annual town meeting in February, 1891, there were two tickets in the field for excise commissioners, each having three names on, one being stated to be for three years, one for two years, and one for one year. The successful ticket was W. J. Nixon for three years, W. J. Farrington for two years, and H. C. King for one year. These duly qualified and entered upon the discharge of the duties of the office. At the annual town meeting in February, 1892, there were two tickets in the field for excise commissioners, each having but one name on. On one was H. C. King, and he was elected, and he duly qualified and entered upon the discharge of the duties of the office. At the town meeting in February, 1893, there were two tickets, upon one of which there were three names,—A. Y. Yan Liew for three years, Warren S. Bates for two years, and C. W. Northup for one year. The other ticket had but one name, and that for three years. The ticket having three names received a majority of the votes. Thereafter, and on May 13, 1893, Yan Liew and the defendant Bates met as a board and granted several licenses. That is the intrusion here complained of, and for which defendant was indicted. It is claimed by the people that the office which the defendant assumed to fill was rightfully possessed by King, under his election in 1892. The defendant claims that King, having been elected in 1890 for three years, still held that office in 1892, and so was then ineligible to election to another position on the same board, and that therefore, the election in 1892 being invalid, there was in 1893 a vacancy for two years, to which the defendant was properly elected. It seems to have been conceded at the trial that the failure of the commissioners in 1890 to take the oath prescribed by the act of 1890 did not of itself vacate the offices they held. ít was, however, left to the jury, as a question of fact, to say whether or not King, by what he did in 1890, and his subsequent conduct, abandoned the office he held in 1890, and the court charged that, if the jury found such abandonment, then King in 1892 was eligible, and so no vacancy in 1893 for two years existed for defendant to fill, and that, if they did not find such abandonment, then the defendant was not guilty. The court also charged, as to the force of the word “ willful ” in the statute, that its meaning “ is that of intentional, not by inadvertence; ” that, “ if he (the defendant) intended to do what he did do, then he did so willfully. And the court refused to charge, upon the request of the defendant, that, if the defendant “ acted in good faith, and believed he was excise commissioner in 1893, he was not guilty.” In the course of the trial, the defendant offered to prove that at the time of his election he made investigation as to the question of the legality of the election, and took the advice of attorneys, and acted in good faith believing he was legally elected. This was excluded. Assuming that the question of abandonment was one for the jury to pass upon, was the court correct in its rulings on the subject of good faith, and the meaning to be given to the term “ willful ” ?

In Wass v. Stephens, 128 N. Y. 123; 38 St. Rep. 882, the court say, in speaking of § 639 of the Penal Code, which 'provided for the punishment of “ any person who willfully or maliciously displaces, remove, injures or destroys,” among other things, any pipe or main for conducting water or gas: “But the word willfully ’ in the statute means something more than a voluntary act, and more, also, than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.”

The same doctrine is asserted in Hewitt v. Newburger, 141 N.Y. 538; 57 St. Rep. 821. In People v. Flack, 125 N. Y. 324; 34 St. Rep. 722, where the defendant was indicted, under § 168 of the Penal Code, for falsely instituting an action for divorce, it was held that a charge which in substance made the question of guilt to depend solely upon the intentional doing of an unlawful act was erroneous. It must also be found that there was a criminal intent. In People v. Stevens, 109 N. Y. 159; 14 St. Rep. 808, the defendant was-indicted, under § 467 of the Penal Code, for the offense of intrusion on lands. The statute does not in terms make the intent a material element of the offense. Still, the court were of the opinion that if the defendant entered under a bona fide claim of right, which he might reasonably believe entitled him to take possession, it would be a defense, and it was said that the existence of criminal intent, as a necessary eonsiituent of the offense, must be implied. It was, however, held that, to sustain such a defense of entry in good faith, there must be some colorable ground for such a claim.

In the light of these authorities, we think the court erred in excluding evidence of good faith, and, in its charge, upon the force to be given to the word “ willful.” In substance, the guilt of the defendant was made to depend solely upon the question of whether he was entitled to the office. The defendant was, we think, entitled to the benefit of the rule, laid down in the Stevens Case, that if he entered under a bona fide claim of right, which he might reasonably believe entitled him to take possession, it would be a defense. It cannot be properly said that there was no color-able ground for such a claim. King’s first term had not expired in 1892; he had not, as the court, in effect, held, forfeited or resigned the office, and the question of abandonment was in sufficient doubt to send it for determination to the jury. A majority of the electors evidently supposed that the position of defendant was correct.

It follows that the judgment should be reversed, anda new trial ordered.

All concur.

Judgment and order reversed, and a new trial ordered, and the clerk directed to enter judgment and remit a certified copy thereof, with the return and decision of this court, to the court of sessions of Tompkins county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.


author: Per Curiam.

text:
    Elias Warn, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Master and servant—'Rules.
    It is the master’s duty to make rules for the protection of his servants and see to their enforcement.
    2. Same—Risk.
    The principle that the servant assumes the risk of the business, is subject to the above rule.
    Appeal from judgment entered on a nonsuit.

      Louis Marshall, for app’lt; Hiscock, Doheny & Hiscock, for resp’t.
   Per Curiam.

We are of the opinion that the facts in this case should have been submitted to the jury, and that the non-suit was improper. The law imposes upon a railroad company the duty to its employes of diligence and care, not only in furnishing proper and reasonable safe appliances and machinery, and skillful and careful coemployes, but also of making and promulgating rules which, if faithfully observed, will give reasonable protection to the employes. Abel v. D. & H. C. Co., 103 N. Y. 581; 4 St. Rep. 269. It is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. Whittaker v. D. & H. C. Co., 126 N. Y. 549; 38 St. Rep. 523. If defendant’s rule No. 36 was intended to apply to a train like the one in the inspection of which the plaintiff was injured, it became a question of fact whether the defendant was guilty of negligence in regard to its proper promulgation and enforcement If that rule was not intended to apply to such a train, then it became a question of fact whether the defendant had performed the measure of its duty within the rule laid down in the Abel Case. The defendant, in making rules for the government of its employes, is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may reasonably be foreseen by its managers exercising such ordinary care. Berrigan v. N. Y., L. E. & W. Railroad Co., 131 N.Y. 582; 42 St. Rep. 858.

Nor should it be said, as matter of law, that under the facts of the present case the plaintiff assumed the risk, as incident to the business. In Abel v. D. & H. C. Co., 128 N. Y. 664; 40 St. Rep. 626, it is said that the rule that the servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from negligence of coemployes. See, also, McGovern v. Central Vt. Railroad Co., 123 N. Y. 280; 33 St. Rep. 416. Negligence of a servant does not excuse the master from liability to a coservant for an injury which would not have happened, had the master performed its duty. Coppins v. N. Y. C & H. R. R. R. Co., 122 N.Y. 557; 34 St. Rep. 214. The question of contributory negligence was for the jury.

All concur.

Judgment reversed, and new trial ordered; costs to abide the event.


author: Per Curiam.—

text:
    Harvey Joyce, App’lt, v. Rome, Watertown and Ogdensburgh Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Master and servant—Appliances.
    The question whether the defective appliances contributed to the injury of the servant, and whether it could have been discovered on inspection was held, in this case, to be one for the jury.
    Appeal from a judgment entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes.

      J. W. Shea, for app’lt; Mullin, Griffin & Walker, for resp’t.
   Per Curiam.—

Under the ruling in Bailey v. R., W. & O. Railroad Co., 139 N. Y. 302; 54 St. Rep. 550, the duty rested upon the defendant to cause a proper inspection of the cars before they left Oswego. There was evidence tending to show that the appliances for coupling were defective; that there was an improper play of the drawhead, of from one to three inches. Whether this contributed to the injury, and whether it existed when the train left Oswego, and might, by proper inspection, have been discovered and remedied, were questions of fact, for the jury. So was the question of contributory negligence. See Goodrich v. N. Y. C. & H. R. Railroad Co., 116 N. Y. 398, 404; 26 St. Rep. 767; Ellis v. N. Y., L. E. & W. Railroad Co., 95 N. Y. 546.

We think the case should have been submitted to the jury.

All concur.

Judgment and order reversed, and new trial ordered, costs to abide the event.


author: Hardin, P. J.

text:
    John C. Trolan, App’lt, v. Leroy S. Rogers, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    W ill—Perpetuities.
    A will which, in effect, provides that the widow shall enjoy the use of the estate during her natural life, and that thereafter the son shall have the use of one-half for his life, and the daughter one-half, for and during her natural life, does not unlawfully suspend the title to the real estate.
    Appeal from a judgment entered on a verdict in favor of the defendant, and from an order denying a motion for a new trial made on the minutes.

      John C. Troian and Henry Purcell, for app’lt; Watson M. Rogers, for resp’t.
   Hardin, P. J.

—William Gill, on the 2d of January, 1857, died testate, leaving his widow, Hannah, his daughter, Julia, and his son, Julius, him surviving. He left a will containing the following clause, viz.: “I also hereby give, bequeath and devise the use and enjoym’ent of the rest, residue and remainder of my real estate and personal estate, of every name, kind and description whatsoever, to my said wife, Hannah, to have, possess, hold and enjoy the same during her natural life, and after her decease to go and be divided equally between my son, Julius, and my daughter, Julia, to have, possess and enjoy the same during their, and each of their, natural lives, and after their decease to their children and heirs at law in fee simple; but if my son, Julius, or my daughter, Julia, should die before the decease of my said wife, then and in that case their children and heirs at law to take and hold what their parent, if living, would be entitled to under this, my will.” His will was duly admitted to probate by the surrogate of Jefferson county. He was the owner in fee of the lands mentioned in the complaint. Subsequent to the probate of the will, and on the 23d of May, 1857, the widow and the two children executed quitclaim deeds to effectuate a division or partition of the testator’s real property. Of the lands covered by the deed executed by the widow and son to the daughter, Julia, she conveyed, April 8,1875, the lands mentioned in the complaint to the defendant, in consideration of z$700, which deed was put on record, and defendant entered into possession of the lands so conveyed to him. Subsequently, on May 21, 1881, the daughter, Julia, died intestate, leaving, her surviving, four children; and Ada E., one of them, was married May 20,1875, to the plaintiff, and she died February 2, 1884, leaving, her surviving, two children, the issue of such marriage to the plaintiff. The plaintiff claims that his wife, Ada, upon the death of her mother, was entitled to one-fourth of the property which was set off to the mother under the will of William Grill, deceased. We think the intention of the testator was to give to his widow a life estate in his property, and that upon her death it was his intention that his son and daughter should each have the use of one-half thereof during life. The words found in the will, viz., “to go and to be divided equally between my son, Julius, and my daughter, Julia, to have, possess and enjoy the same during their, and each of their, natural lives,” seem appropriate to evince an intention that there should be a division between Julius and Julia of the estate, and that each should have the use during life of one-half of the estate, and that upon the close of the life of the son his half should go to his children, and that upon the close of Julia’s life her half should pass in fee to her children. The will provides, in effect, that the widow shall enjoy the use of the estate during her natural life, and that thereafter the son shall have the use of one-half for his life, and the daughter one-half, for and during her natural life. We think there was no unlawful suspension of the title to the real estate. Everitt v. Everitt, 29 N. Y. 40; Moore v. Hegeman, 72 id. 377; Monarque v. Monarque, 80 id. 321; Wells v. Wells, 88 id. 323; In re Blaker, 12 St. Rep. 741. “ Each one of these shares is separately disposed of, and therefore the provision in question is to be considered as if a disposition had been made of an estate in an entirety." The whole estate is bound during the life of the widow, and after her death each of the testator’s children takes, in severalty, one-half of the estate for life; and, the fee having vested in the grandchildren at testator’s death, the possession of such half passes at the close of the lives of the life tenants to the children of the son or daughter, so that they take “ what their parent, if living, would be entitled to.” Schermerhorn v. Cotting, 131 N. Y. 55; 42 St. Rep. 608. The testator expressly provides thgt his son and daughter shall have the use, during his or her natural life, of the one-half, and that thereafter the children and heirs at law shall take “in fee simple.” The daughter, Julia, having only a life estate by the terms of the will, could convey that, and no more, to the defendant. At the close of her life her children ^became entitled jto the possession of the one-half of the testator’s estate, of which she was given the use for life. As her death took place during the coverture of the daughter Ada, she was entitled to immediate possession of an undivided interest in the estate of the testator, and that right accrued to her during coverture. By the death of Hannah, the testator’s widow, on October 20, 1875, her life estate terminated. Inasmuch as both life tenants died during coverture of plaintiff’s wife, she had an absolute estate during her lifetime. Her seizure was perfect at the close of her mother’s life, which occured in 1881. 1 Washb. Real Prop. p. 160, § 28; Dunham v. Osborn, 1 Paige, 834; Ex parte Creiger, 1 Barb. Ch. 598; Tayloe v. Gould, 10 Barb. 401; Durando v. Durando, 23 N. Y. 331 ; Ferguson v. Tweedy, 43 N. Y. 543; Hurd v. Cass, 9 Barb. 367; Clark v. Clark, 24 Barb. 581; Hatfield v. Sneden, 54 N. Y. 280. The possession of the defendant under his deed, taken April 8, 1875, has not been such as to ripen into a title; and the case does not fall within the rule laid down in Baker v. Oakwood, 49 Hun, 416; 22 St. Rep. 602.

When the trial was near its close, it seems the letter of plaintiff to defendant had not been produced, and read to the court, though it was assumed that such letter had been sent before suit brought, and it now appears in the case, and the plaintiff requested the court to hold: “If it appears from the letter referred to that a sufficient demand was made of defendant for possession prior to the commencement of the action, plaintiff is entitled to maintain the suit as a tenant in common after an ouster or eviction; defendant claiming to hold adversely to plaintiff, her cotenant.”

This request was overruled, and an exception taken. The complaint was amended so that it averred a demand by the plaintiff of possession of the premises before commencement of the action, and a refusal by the defendant. When the ruling was made it appeared that the defendant had, by his answer, denied the plaintiff’s title, and claimed to be in possession adversely to the plaintiff’s title or interest, claiming to hold the premises as his own, and that the defendant wholly denied the title and right of the plaintiff. His acts and declarations “are inconsistent with the supposition that he acquired and now holds possession of the premises as tenant in common with the plaintiff.” Edwards v. Bishop, 4 N. Y. 65 ; Valentine v. Northrop, 12 Wend. 495; Code Civ. Proc. §§ 1500, 1515; Earnshaw v. Myers, 17 St. Rep. 703 ; 1 N. Y. Supp. 901. The views already stated lead us to order a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.


text:
    Isreal P. Grant, as Survivor, etc., Resp’t, v. William D. Lawrence, as Survivor, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Appeal—Case—Certificate.
    Where there is no certificate that the case contains all the evidence, the facts will not be reviewed.
    2. Contract—Construction—Indemnity.
    A provision in a contract of sale of patent rights that the vendee shall ‘•be defended from trouble from patents,” is an agreement to indemnify him from the insufficiency of the patents.
    3. Evidence—Judgment. .
    A judgment in an action by a third party against the person indemnified is not conclusive, but only prima face, evidence, in an action by the latter against the indemnitor, as to the validity of the claim thereby established, where no opportunity was afforded him to defend the former action.
    Appeal from a judgment in favor of the plaintiff.

      Risley & Robinson, for app’lt; James A. Douglass and Frederick Collin, for resp’t.
   Hardin, P. J.

—Inasmuch as there is no certificate that the case contains all the evidence given upon the trial, this court is not called upon to review the evidence of the findings of fact made by the trial court. Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Murphy v. Board of Ed., 53 Hun, 171; 25 St. Rep. 154; Davis Sewing Mach. Co. v. Best, 50 Hun, 76 ; 23 St Rep. 876 ; Koehler v. Hughes, 73 Hun, 167; 57 St. Rep. 131; Hyman v. Friedman, 45 St. Rep. 636; 18 N. Y. Supp. 446; Koehler v. Hughes, 57 St. Rep. 131; 25 N. Y. Supp. 1061.

2. When the plaintiff’s firm became a purchaser from the defendant’s firm, both parties understood that the articles to be sold were patented articles, and that such articles were manufactured in such a mode and manner as to be protected by the patents under which the defendant’s firm was operating. Some hesitation was evinced by the plaintiff’s firm, at the time of the negotiations, in respect to the sufficiency of the defendant’s patent to cover the harrows in question, and there was inserted in the contract the following words: “Grant & De Water to be defended from trouble about patents."’ In construing those words, it is the duty of the court to look at the surrounding circumstances,—the situation and relation of the parties to the transaction then in hand," evidenced by the contract entered into by them. In Griffiths v. Hardenbergh, 41 N. Y. 464, it was held that the court is to be assisted in the interpretation of a written contract by proof of surrounding facts as they existed at the time of its execution and delivery. That case is approved, and the doctrine thereof reaffirmed, in Dodge v. Zimmer, 110 N. Y. 48; 16 St. Rep. 657. Evidently the purchasers, by soliciting and receiving the words we have quoted, desired to be entirely indemnified, protected, and saved from all “trouble” which might come to them by reason of purchasing and selling the harrows that the defendant’s firm then contracted to sell and deliver to the plaintiffs firm. The words were prepared by the seller, and ought to be construed most strongly against the defendant’s firm. Noonan v. Bradley, 9 Wall. 394; Dodge v. Zimmer, 110 N. Y. 43 ; 16 St. Rep. 657. In Brewster v. Countryman, 12 Wend. 446, where the vendor of property, in connection with the terms of sale, said to the vendee “that he would see him out of it,” it was held that these expressions were equivalent to an agreement to indemnify ; and, near the close of the opinion in that case, Savage, 0. J., said : “That the words ‘see him out of it,’ in the connection in which they stand, can mean nothing else than to indemnify, or save harmless, seems to me quite clear. If it was a cant phrase or provincialism, meaning something else, evidence should have been offered to prove it, but then the matter must have been submitted to the jury.”

3. We think it is not a defense to the action for a breach of the defendant’s undertaking that the action brought by Olin & Co. against plaintiffs was not resisted by means of a protracted litigation ending in the supreme court of the United States. Decisions had been made prior to the 21st August, 1886, adverse to the position of the defendants in respect to the matter involved in the Olin & Co. suit. It would have been competent for the defendants in this case to have introduced evidence, by way of defense, showing that a complete defense existed to the suit. Such evidence was not produced by the defendants. In Bridgeport F. & M. Ins. Co. v. Wilson, 34 N. Y. 275, where the parties had entered into a general covenant of indemnity, and it was insisted that they had not had opportunity to defend suits, it was said, in the course of the opinion of Smith, J., at page 279 : “Although they had no opportunity to defend the Barnum suit during its progress, yet, if they are allowed in this action to avail themselves of any defense that might have been interposed successfully in that suit, they are not prejudiced by the want of notice. Such opportunity is given them by holding that the judgment in the Barnum suit, although prima jacie evidence of the validity of the claim thereby established, is not conclusive against them, and they may be let in to show that it was obtained by collusion, or that a valid defense existed to the claim, which the insurance company neglected to set up.”

The costs in the suits brought against the plaintiffs’ firm, and purchasers from plaintiffs, as well as the services for an attorney, rendered necessary to extricate them from the trouble they were in bv reason of the failure of the defendants to perform their covenant, seem to be legitimate items of damage to be assessed against the defendant. In Kip v. Brigham, 7 Johns. 171, it was said by Kent, C. J.: “It is enough for a party, in order to maintain his action on a bond of indemnity, to show that he was liable and had paid the debt, or that he was sued, or that he was even exposed to a suit. * * * The costs were part of the loss and damage which the plaintiff had sustained by means of the default of the defendants in not satisfying the creditor.” Hastie v. De Peyster, 3 Caines, 190.

4. We have looked at the numerous exceptions taken during the progress of the trial, and are of the opinion that none of them present any error requiring us to interfere with the conclusion reached at the circuit. The foregoing views, as well as those expressed in the opinion delivered by the learned trial judge, lead us to the conclusion that the recovery should be sustained.

Judgment affirmed, with costs.

All concur.


text:
    Angeline Bettinger, Resp’t, v. Betty E. Van Alstyne et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Deeds—Deliveby.
    Authority to the scrivener to deliver deeds upon the death of the grantor does not deprive the latter of the power to withdraw and alter the deeds at pleasure, though they have been delivered to the grantees and recorded.
    Appeal from a judgment in favor of plaintiff.

      John J. Lamoree and James A. Johnson, for app’lts; Watson M. Rogers, for resp’t.
   Hardin, P. J.

—On the 25th of August, 1891, George Bettinger, then a resident of Ellisburgh, died, leaving, him surviving, the plaintiff (his widow) and his two sons, Edgar G. Bettinger and Silas F. Bettinger, and his daughter Betty E. Yan Alstyne, his only children and heirs at law. He left a last will and testament, which was admitted to probate in the surrogate’s court of Jefferson county on the 23d day of November, 1891. By his will he devised all his real estate to the plaintiff. He had been very ill for more than a year previous to his death, and had required and had received close attention, nursing, and care from the plaintiff, who became very much exhausted thereby, she being then advanced to the age of some 76 years. She resided a few miles from her daughter, and in the early days of September went to the daughter’s house, in New Haven, Oswego county. While there, considerable conversation was had between the daughter and the mother, as well as the daughter’s husband, in respect to the future disposition of the property owned by the plaintiff. And on the 25th of September, 1891, the plaintiff was taken to ride with the husband of the daughter, with a view of seeing a monument in a cemetery not a great distance from the residence of the daughter; and on that occasion she stopped at the house of S. M. Barker, who had, to a considerable extent, acted as conveyancer in the neighborhood, and while there two deeds were prepared and executed by the plaintiff, covering the lands mentioned in the complaint. The trial judge found, viz.: “That on the 25th day of September, 1891, the plaintiff executed and acknowledged two deeds, purporting to convey all of said real estate, to wit: one in which Silas E. Bettinger was named as grantee, and in which a portion of said real estate woe described ; * * * the other, in which Edgar Gr. Bettinger and Betty E. Yan Alstyne were named as grantees, and in which the balance of said real estate was described. * * *” He also found, viz : “That said two deeds were drawn by and executed before one Schuyler M. Barker, then a notary public residing in the county of Oswego ; that upon their execution they were left by plaintiff in the possession of said Barker, who thereafter, and about the 21st day of November, 1891, procured the clerk of Oswego county to attach to each his certificate that said Barker was a notary, and that the name subscribed to the acknowledgment was Ms genuine signature. Said Barker then caused said deeds to be delivered to one William Yan Alstyne, who, on the 23d day of said November, caused them to be recorded in the office of the clerk of Jefferson county. * * *” He also found “that the persons named in said deeds as grantees were not, nor was either of them, present at the time the same were executed and left with said Barker, nor was any person present acting in behalf of or representing them, or either of them.” He also found “that said deeds were without any valuable consideration ;” also, “that at the time said deeds were left with said Barker, the plaintiff did not intend, by their execution, and by such leaving, to convey a present, irrevocable title to the grantees therein named, to the lands there described ; nor did she intend thereby to deprive herself of the power to withdraw or alter them at pleasure, nor has she since so intended.” Also, “that the plaintiff has never irrevocably delivered said deeds to the grantees therein named, nor to their heirs, nor to any person for said grantees or heirs, or either of them.”

He also found that the defendants claimed title to the lands under the deeds, and that "said deeds, and the record thereof, are a cloud upon the plaintiff’s title, and an apparent conveyance thereof to said grantees.” As conclusions of law he found, viz. : “ That by the commencement of this action the plaintiff has recalled said deeds, and revoked any authority given by her to said Schuyler M. Barker with reference thereto. (2) That said deeds did not and do not operate to transfer to the grantees therein named a present title to the plaintiff’s said real estate, or any part thereof.”

And he awarded a judgment in favor of the plaintiff,—that the deeds be surrendered, and delivered up to be canceled of record by the clerk of Jefferson county.

Appellants filed and served exceptions to the findings made by the trial judge. The deeds each recite a consideration of one dollar, and each contained a reservation of use of the property during the life of the plaintiff. It appears by the evidence that at the time the deeds were prepared no pecuniary consideration passed to the'plaintiff therefor, and none has passed to her since. It seems that after the deeds were executed and acknowledged the plaintiff held a conversation with Baker, in which she proposed to leave the papers so executed with him, and that she avowed that she might want to make a change, and that she would be at his place again; and in detailing that conversation she uses the following language : “ 11 may want to make a change. I shall be here again.’ And I said to him, ‘Can’t I?’ And he said, 1 Yes, any time you are a mind to; ’ that, if he wasn’t there when I came, his wife could do the business about as well as he could. I then said to him, ‘Can’t I leave them, and can’t I change it if I want to ? ’ He said, ‘Yes.’ And I said : 11 will leave these here. I trust you to keep them. I don’t want you to let them go out of the house.’ He said, ‘ They sha’n’t go out of my house, nor out of my hands.’ * * * I said : ‘Keep them right here. I don’t want to let them go.’ * * * I never ordered him to give it up to any one. * * * I changed my mind later, because I asked if I couldn’t change it. He told me I could, and he promised to me it shouldn’t go out of his hands, nor out of his house. * * * I did tell him to keep it there until I came again ; that I might want to alter it”

In the course of the testimony given by Barker as to the execution of the deeds, he says that the plaintiff said to him: “ ‘ Mr. Barker, you take these papers, and keep these in your possession until my death, and then you deliver Silas’ deed to him, and the other deed to Betty and Edgar.’ I think there was something said about recording them.”

In the course of his cross-examination he stated: “ After I had drawn these papers, she directed me to keep the papers in my hands until her decease, and then to deliver Silas’ deed to Silas, and the other deed to Betty and Edgar. Deeds were then talked about. The deeds were talked about there, and in that connection.

Again the witness says, at folio 111: “ I did not suggest the plaintiff had directed me to keep the deeds till her death, and then that I deliver them to the grantees. Plaintiff originated that idea, — that I hold the deeds until she died, and then deliver them over.. That was her suggestion. She said: ‘ I want you to take these papers, and keep them, and deliver them to these persons after my death.’ ”

Again the witness says, at folio 122 : “ She didn’t deliver the deeds or authorize them to be delivered to the grantees until after her death.”

In the course of the testimony of Mrs. Barker, she says that she was present on the occasion when the deeds were prepared, and heard the plaintiff’s instructions to Mr. Barker, and the witness adds: “She told him to keep the deeds in his possession, and deliver them to the parties at her death,”

And in the course of the cross-examination upon that subject she says: “I heard Mrs. Bettinger tell my husband that she wanted him to keep the papers until after her death, and then, to deliver them to Edgar and Betty and Silas.”

Willard M. Barker was called as a witness for the defendant, he states that he was present on the occasion when his father drew the deeds, and lie heard the plaintiff's statement to his father, and he testifies as follows: “ She said to him to have them recorded when it was convenient for him to do so, and for him to keep them in his possession, and to deliver them to the persons after she was dead.”

We think the testimony amply sustains the finding of the trial judge that the plaintiff did not intend “to deprive herself of the power to withdraw or alter them at pleasure, and that she did not irrevocably deliver the deeds to the grantees therein named.” Barnes v. Barnes, (Mass.) 37 N. E. 379. In Eames v. Phipps, 12 Johns. 419, it was held that a delivery is essential to the validity of a deed, and there can be no delivery without an acceptance by the grantee. In' Jackson v. Dunlap, 1 Johns. Cas. 114, where the‘deed was found in the possession of the grantor at the time of his death, it was held that there was no actual delivery to or acceptance of the deed by the grantee, and therefore nothing passed by it. In Jackson v. Perkins, 2 Wend. 308, it was held that a person affected by a deed may at any time question its validity, and show that it was not in fact duly executed or delivered, although it has been approved in the usual form by subscribing witnesses, and recorded. In Roosevelt v. Carow, 6 Barb. 195, it was said by Edmonds, J., viz. :

“A delivery of a deed, to be valid, is such an act of the grantor, touching its execution, as deprives him of the power of controlling its operation, and confers on the grantee the right to enforce it, even against the will and pleasure of the grantor.”

In Hathaway v. Payne, 34 N. Y. 92, it was held that: “Whether a deed executed, and not delivered immediately, hut handed to a stranger to be delivered to the grantee at a future time, be an escrow, or a deed of the grantor presently, depends upon the intent of the parties thereto.”

And Denio, C. J., at page 113, says: “In such a case the weight of authority is that no title passes until the final delivery, and that then, and thereafter, the title is, by relation, deemed to have vested as of the time of the first delivery to the third person.”

The same doctrine is stated by Coweit, J., in Tooley v. Dibble, 2 Hill, 643.

In Chouteau v Suydam, 21 N. Y. 179, it was held that paroi evidence was receivable as to whether there was an effectual delivery, or not, of a sealed instrument. The same doctrine is stated in Brackett v. Barney, 28 N. Y. 340. In Jennings v. Jennings, 23 Wkly. Dig. 457, it appeared that a father executed a deed purporting to convey a farm to the plaintiff, and, the next day after it was signed and acknowledged, it was burned. No valuable consideration passed between the parties, and there was evidence that when the father had executed the deed he handed it to his wife to keep until he told her what to do with it. The next day he told her to destroy it. And it was held bv this court that the evidence was insufficient to establish a delivery of the deed to or for the plaintiff at the time of its execution, with intent to vest the title in him, and that if it was intended, at the time he executed the deed, to vest the title in the plaintiff, ‘ still he had a right “to revoke this inchoate grant,” and that the grantor’s direction that the deed he destroyed amounted to a revocation, and that the plaintiff, the grantee named in the deed, acquired no title to the land. In re Crawford, 113 N. Y. 565; 22 St. Rep. 942 ; Martin v. Funk, 75 N. Y. 137.

Appellant calls our attention to Messelback v. Norman, 46 Hun, 414; 11 St. Rep. 823. In that case it was said that delivery is essential to the validity of a deed, and that to sign and seal and acknowledge a writing, and keep it in one’s possession conveys no title, and that there must be some act showing that the grantor intends that it shall take effect; and, upon the evidence there given, it was finally held that it did not justify a finding that the deed was not delivered. The deed had been delivered to the county clerk, and there was no evidence to show that it was so delivered for any other purpose than for the use of the grantee, and the grantor had carried the deed to a party who had drawn it, to have him take it to the county clerk’s office. We think the case differs very essentially from the one before us. Our attention is also called to Rathbun v. Rathbun, 6 Barb. 98,.where it appeared the grantor, for a valuable consideration, executed a deed, and delivered it to the clerk of Herkimer county for record, and for the use of his father, and “without any condition annexed to its delivery,” and it was held that upon an acceptance by the defendant the deed took effect from the time of such delivery. The ease, we think, is distinguishable from the one before us. Our attention is also called to Roosevelt v. Carow, Id. 190, in which case it appears that a deed was executed, retained by the grantor in his possession for nearly four years, and until the time of his death, without disclosing its existence. In the meantime he treated the property as his own, and after his death the deed was found in his bureau ; and it was held “that such deed was void, and inoperative as a deed of bargain and sale, for want of a valid delivery,” also held “that such deed was not valid or operative as a voluntary settlement.” We think the case does not aid the appellant. Our attention is called to Rose v. Rose, 7 Barb. 174, where testimony was given to the effect that at the time of the execution of the deed “the testator actually delivered the deed to the plaintiff,” and “nothing transpired to indicate that the delivery was intended by the parties to be complete.” We think the case is not helpful to the defendants. In Brinkerhoff v. Lawrence, 2 Sandf. Ch. 400, it appeared that there were many circumstances in support of the presumption of a delivery of the instrument in such form as to make it valid, and the case did not turn wholly upon the question of whether there had been a delivery or not. In Crain v. Wright, 36 Hun, 74, it was held that the intention of the party at the time of the execution of the deed was a question of fact, and that in that case no condition was attached to the delivery of the deed, and the request made was that it should not be exposed during the lifetime of the party executing it. That case was affirmed by the court pf appeals (114 N. Y. 307 ; 23 St. Rep. 245); and, in the course of the opinion delivered in that court upon the subject of whether the conveyance was delivered or not, the court observed : “This was a question of fact, and the jury found, upon sufficient evidence, and under proper instruction from the court, that the deed was delivered with the intent that it should take effect as a present conveyance of the land. The request of the grantor, that it should be kept secret during her life from all who were not obliged to know of its existence, was simply to avoid the importunity of the other heirs, and gave her no right to demand a return of the deed, or to exercise any control over it. It did not postpone the operation of the instrument until after her death, nor convert the deed into a will. The circumstances warranted the presumption that the conveyance was accepted by the plaintiff, as it was delivered to her husband, in trust for her benefit, while she was living with him. She was in the house when the deed was prepared and executed, and was present at a conversation, shortly before, when the grantor announced her intention to convey the property to her. In the absence of proof of express disaffirmance, acceptance will be presumed from these facts.”

The fact that the deeds were put upon record, under the circumstances disclosed by the evidence, at most, creates a presumption of delivery, which it was competent for the plaintiff to overcome by paroi evidence. Elsey v. Metcalf, 1 Denio, 323 ; Wilsey v. Dennis, 44 Barb. 354; Nottbecker v. Wilks, 4 Abb. Pr. 318; Van Valen v. Schermerhorn, 22 How. Pr. 419 (opinion by Balcom, P. J.); Foster v. Scythe Co., 47 Barb. 513; Jackson v. Perkins, 2 Wend. 308; Barnes v. Barnes, suqra.

Having reached the conclusion that the evidence sustains the findings of fact made by the trial judge, we are of the opinion that his conclusions of law therefrom are correct. The special term had ample power to remove the cloud upon the plaintiff’s land. She had remained in possession, so far as the evidence discloses, and is entitled to the relief granted, authorizing the county clerk to cancel the records of the deeds, and to the judgment to the effect that they are inoperative and invalid to pass a title to the grantees named therein. Fonda v. Sage, 48 N. Y. 173; Valentine v. Richardt, 126 id. 272; 37 St. Rep. 12.

Judgment affirmed, with costs.

All concur.


author: Dykman, J.

text:
    Cornelia Fay Cline, App’lt, v. David H. Sherman et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Trustees—Liability.
    One of two trustees is not liable for a trust fund held by his co-trustee, where a division of sudh fund, made between them, has been approved by a binding adjudication of the surrogate’s court.
    3. Same—When executors become.
    Executors sustain the relation of testamentary trustees, when they undertake to act in the execution of a trust created by will which is separate from their functions as executors.

      3. Exegutobs—Accounting.
    Section 2802 of the Code, as it “stood in 1881, contained a provision respecting the effect of a decree upon intermediate accounting.
    4. Same—Infants.
    Where, in the proceedings before a surrogate for an accounting, a guardian was appointed for the infants, the decree has the same effect as a similar adjudication between adults.
    5. SUBKOGATE—BELIEF.
    Upon what ground relief from an erroneous or irregular decree can be obtained, where the surrogate had jurisdiction.
    6. Same.
    In the absence of an appeal, application for relief and expiration of time therefor, such decree becomes binding and conclusive upon all parties thereto.
    Appeal from judgment dismissing complaint.

      Samuel H. Brown (Milton A. Fowler, of counsel), for app’lt; Larned, Warren & Knapp (Ira D. Warren, of counsel), for resp’t.
   Dykman, J.

—Walter W. Sherman died in March, 1880, leaving a last will and testament, in which he appointed the defendants in this action, his two sons, his executors. The will was proved and admitted to probate, and the two executors duly qualified and entered upon the performance of their duties, Walter Sherman and Mary C. Sherman are the children of the defendant David H. Sherman, and Cornelia Fay Cline, the plaintiff, and David H. Sherman, are the children of the defendant Samuel W. Sherman, and are the grandchildren named in the fourth clause of the will, which reads as follows: “I give and bequeath to each of my four grandchildren, Walter A. Sherman, Jr., Mary C. Sherman, Cornelia Fay Sherman, and David Sherman, Jr., the sum of $10,000 apiece, to be set apart for each of my executors one year after my decease, and to be invested and reinvested safely by my executors, with the accumulated interest, until each of my said grandchildren severally shall become of age; and I order my said executors to pay over said sum, with its accumulations, to each of my said grandchildren, respectively, as he or she reaches the age of twenty-one years.”

On the 1st day of April, 1881, the defendants, Samuel W. Sherman and David H. Sherman, presented their petition to the surrogate of Dutchess county, properly verified, praying for a final judicial settlement of their accounts as executors, and that all persons interested in the estate be cited to appear on the 6th day of May, 1881, and attend the final settlement of such accounts. On the last named day, the defendants, as such executors, filed their accounts in the surrogate’s court. Such accounts, so filed, contain the following statement, viz.: “From the amount thereof, we have set apart the sum of $40,000, and, adding from our own fund the amount of premiums, we have purchased and now hold $10,000 in United States four per cent, bonds, registered in the name of David H. Sherman, trustee of Walter A. Sherman; $10,-000 in like bonds registered in the name of David H. Sherman, trustee for Mary C. Sherman; $10,000 in like bonds registered in the name of Samuel W. Sherman, trustee for Cornelia Fay Slier-man; and $10,000 in like bonds registered in the name of Samuel W. .Sherman, trustee for David W. Sherman, Jr.,—all of said bonds being here set down at their face value.”

On the return day of such citation, the said surrogate duly appointed Thomas J. Swift special guardian for the plaintiff in this action, and the other infants interested in the estate. Thus the defendants informed the surrogate of their proceedings, and the disposition they had made of the trust fund. They had invested it in good securities, and each father had become a separate trustee for his own children. dSTo objection was made to the account, and the surrogate entered a final decree discharging the executors from all liability, and confirming the separate trusts as they were stated. The defendant David H. Sherman never had in his possession or under his control the $10,000 of United States registered bonds which were set apart for the plaintiff, and never was her trustee. Those bonds were registered in the name of Samuel W. Sherman, alone, as trustee, and he had entire possession and control of the same. This suit was brought against both of the executors to compel them to account and pay over to the plaintiff the fund belonging to her, after crediting themselves with $2,000 paid to her on accotmt thereof. David interposed a defense, but Samuel did not answer.. The case was tried before a judge without a jury, and he decided that, by the proceedings before the surrogate upon the final accounting, and the final decree rendered therein, Samuel W. Sherman was made and became the sole trustee of the plaintiff, and dismissed the complaint as to the defendant David H. Sherman. The plaintiff has appealed from the judgment entered upon such decision.

This action is based upon the theory of the indivisibility of the trust to invest and reinvest $10,000 for each of the grandchildren of the testator, and, without controverting that position, the respondent relies upon the decree of the surrogate made upon the accounting had before him as final and conclusive, and a protection to him against the claim of the plaintiff. Again, the plaintiff denies the finality and conclusiveness of the surrogate’s decree upon such accounting, and those contentions raise the legal question presented fo'r our solution. These defendants sustained the relation of testamentary trustees, under the will of their testator, towards the grandchildren, because they undertook to act in the execution of a trust created by will, which is separate from their functions as executors. Code Civ. Proc. § 2514, subd. 6. The sums bequeathed to the minors were to be invested and reinvested by the executors, with the accumulated interest, until each of the grandchildren became of age, and then the executors were to pay over the legacies, with the accumulations, to each of the grandchildren. That provision created a trust to be executed by the executors, and so constituted them testamentary trustees. The' claim of the appellant that § 2802, as it stood in 1881, contained no provision respecting the effect of a decree upon intermediate accounting, is quite inconclusive. Jurisdiction, to settle the accounts of testamentary trustees and guardians was first conferred upon surrogates by chapter 782 of the Laws of 1867. By section 1 of that act, surrogates were given power to compel testamentary trustees and guardians to render accounts of their proceedings in the same manner as executors, administrators, and guardians appointed by the surrogate were then requiring to account. That act was amended by chapter 482 of the Laws of 1871, in a respect which is immaterial here. The provisions of title 6 of chapter 18 of the Code of Civil Procedure which commence with § 2802 are a substantial re-enactment of the law of 1867, as amended by the act of 1871, so that those statutes have been in operation all along. In re Hawley, 104 N. Y. 264; 5 St. Rep. 620. As there was a guardian appointed for the infants in the proceedings for the accounts, and before the surrogate, the decree there made has the same effect as a similar adjudication between adults. In re Tilden, 98 N. Y. 434; In re Hawley, 104 N. Y. 250; 5 St. Rep. 620. Further, as the surrogate was possessed of jurisdiction, there was no relief from the decree, even though it was erroneous or irregular, except upon the ground of fraud, clerical mistake, newly-discovered evidence, or though like causes, and to obtain such relief it was necessary to apply for the same within one year after the infants became of age, respectively. Code Civ. Proc. § 1291; In re Hawley, 100 N. Y. 211.

As there was no appeal from the decree, and no application for relief from the same, and the time therefor has long since-expired,^ it has become finally binding and conclusive upon- the plaintiff and all others who were parties thereto. For the same reason, the decree of the surrogate upon such accounting furnished absolute protection to the executors. They stated in their account that they purchased and held $10,000 in United States 4 per cent, bonds, registered in the name of Samuel W. Sherman, trustee for Cornelia Fay Cline, the plaintiff, and that was true. Ho objection was made to that mode of separating the trust, and the decree finally settled and allowed the accounts as thus stated. Bowditch v. Ayrault, 138 N. Y. 222; 52 St. Rep. 330; Denton v. Sanford, 103 N. Y. 607; 4 St. Rep. 281. In this last case, trustees under the will had invested trust funds in a mortgage on property in Hew Jersey, and the court decided that the decree of final accounting, which showed how the fund was invested, furnished absolute protection to the trustees, as no objection was made to their action. In that case, as in this, the action of the trustee might or might not receive the approval of the surrogate, but, as it did, such approval was their protection. That rule is consonant with justice. Here were two brothers executors of their father’s will. Forty thousand dollars was given to them for their four children, who were minors, in equal sums, to be invested and the interest accumulated during their minority and paid over to them upon their attaining their majority, respectively. When the estate was settled, and the $40,000 had been invested in government bonds, each father was willing to become the trustee for his two children, and so they agreed to divide the bonds, each taking half, and causing them to be registered in his own name as trustee. Then they applied to the surrogate for a judicial settlement of their accounts, and stated in their petition how the trust fund was invested, and that half of it was held by each of the trustees for his children. A guardian was appointed, and no objection was made, and the surrogate approved the action of the trustees, and made, a decree in which he recited the establishing of the four trusts of $10,000 each, and stated that the executors were released and discharged from all liability as well to each other as to others, and that all their transactions were approved, ratified, and confirmed. The surrogate and all parties interested approved a division of the trust, and, had they not done so, the respondent might have protected himself. Under all these circumstances, it would be oppressive and unjust to compel the respondent to restore to the plaintiff the money which has been lost without his fault.

The judgment should be affirmed, with costs.


author: Martin, J.

text:
    John W. Truesdell, as Administrator, etc., Resp’t, v. Hannie L. Bourke, as Executrix, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Question of fact—Receipt of property in fraud of creditors.
    The evidence, in this case, was held sufficent to present a question for the jury whether defendant’s testator received property of plaintiff’s intestate in fraud of the creditors of such intestate.
    2. Evidence—Declarations.
    Declarations of testator in his own favor are inadmissible on the part of his executor.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      Jenney & Marshall, for app’lt; William Kennedy, for resp’t.
   Martin, J.

—The statute under which this action was brought provides : “Section 1. That any executor, administrator, receiver, assignee, or other trustee of an estate, or the property and effects of an insolvent estate, corporation, association, partnership or individual, may for the benefit of creditors or others interested in the estate or property so held in trust, disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor, including themselves and others, interested in any estate or property held by or of right belonging to any such trustee or estate.

“Sec. 2. That every person who shall, in fraud of the rights of creditors and others, have received, taken, or in any manner interfered with, the estate, property or effects of any deceased person, or insolvent corporation, association, partnership or individual, shall be liable in the proper action to the executors, administrators, receivers, or other trustees of such estate or property, for the same, or the value of any property or effects so received or taken, and for all dam acres caused by such acts to any trust estate.” Laws 1858,_c. 814.

This action was brought by the plaintiff, as administrator of the estate of John Fitzgerald, deceased, to recover the sum of $1,000J with interest, which the plaintiff claimed belonged to the estate of the intestate, and was received and taken by William J. Bourke in fraud of the rights of the creditors of the estate of John Fitzgerald, deceased. The plaintiff’s intestate died at the city of Syracuse on the 28th day of February, 1882. At the time of his death he was, and for a long time had been, hopelessly insolvent, and his debts were many times greater in amount than the total assets which came into the hands of the administrator. After the death of John Fitzgerald, William J. Bourke, who was a Catholic priest, and pastor of the decedent, obtained through the bands of Kate Fitzgerald, a niece of the plaintiff’s intestate, the sum of $1,000 which belonged to the estate of the plaintiff’s intestate, and which, Father Bourke testified, the decedent had promised to give him to help build a school building for the church over which he presided. The evidence introduced by the defendant tended to show that this money was received by Father Bourke, as pastor or agent of the Church of St. John the Baptist, to aid in building a charity school, and that' he deposited it in his own name in the Syracuse Savings Bank. The evidence also tended to show that, soon after the death of John Fitzgerald, a package which contained some of the property owned by the plaintiff’s intestate at the time of his death was secretly sent to the house of Father Bourke, presumably by Kate Fitzgerald, and that it was afterwards taken away by some girl unknown to him; and that, after the death of the plaintiff’s intestate, Father Bourke stated to a witness called by the plaintiff that he had received this $1,000, but that-it was a question whether or not he could keep it. Subsequent to the commencement of this action, and before the trial, Father Bourke died, leaving a last will and testament, in which the defendant was named as his executrix, who was substituted as a party to this action. His will contained the following clause : “There is also deposited in the Syracuse Savings Bank the sum of one thousand dollars, which belonged to the Sacred Heart School, under the supervision of the Sisters of St. Joseph, unless a judgment is rendered against me or my estate in the action pending in favor of John W. Truesdell, as administrator of the goods, chattels, and credits of John Fitzgerald, in which event I direct said money to be applied in satisfaction of said judgment.”

A careful examination of all the evidence contained in the appeal book has led us to the conclusion that although it was meager, owing to the fact that all the parties to the transaction had died before the trial, yet it was sufficient to justify the court in submitting to the jury the questions whether the $1,000 received by Father Bourke was received in fraud of the creditors of the plaintiff’s intestate, and whether the sum thus received was in his custody or under his control, in that it was deposited in his name in the Syracuse Savings Bank, at the time of the demand made by the plaintiff. We think the provisions of Father Bourke's will, with the other evidence in the case, were sufficient to justify the jury in finding that the $1,000 deposited in the Syracuse Savings Bank at the time of the demand was the property, or the avails of it, received from the estate of the plaintiff’s intestate, and that the money was received by him in fraud of the creditors of John Fitzgerald. If this money came into the hands of Father Bourke in fraud of the creditors of John Fitzgerald, or if, while it was in his possession or under his control, it was demanded by the plaintiff on that ground, and he refused to give it up, we think it could be recovered under the provisions of the statute of 1858. That statute is broad and comprehensive, and sufficient, we think, to authorize and uphold the recovery herein. Barton v. Hosner, 24 Hun, 467; Lichenberg v. Herdtfelder, 103 N. Y. 302 ; 3 St. Rep. 91; Harvey v. McDonnell, 113 N. Y. 526; 23 St. Rep. 501; Nat. Bank v. Levy, 127 N. Y. 549; 40 St. Rep. 331. On the trial, the defendant offered to prove by Rhoda Mara, one of the members of Father Bourke’s church, that, after the $1.000 in question was received by him, he stated from the altar that he had received that sum from John Fitzgerald. This evidence was excluded. The same fact was offered to be proved by reading the cross-examination of James F. Keefe, who was sworn as a witness upon a former trial, and that evidence was also excluded. To these rulings the defendant excepted. It appeared from the offered evidence of James F. Keefe that this statement was made three or four months after the death of Fitzgerald. As it was not, therefore, any part of the res gestee, we think it was at most a mere declaration by the defendant’s testator in his own favor, that it was inadmissible, and that the exceptions to these rulings were not well taken. We have examined the other exceptions to the admission and rejection of evidence, and to the judge’s charge, but have found none that would justify us in disturbing the judgment, or that need be specially discussed.

Judgment and order affirmed, with costs.

All concur.


text:
    Charles M. Smith, as Executor, etc., Resp’t, v. George B. Northrup, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Guaranty—Consideration.
    The words “ for value received,” in a guaranty, are a sufficient exprespression of the consideration.
    2. Sam.
    Extension of time of payment for one year furnishes a good consideration for a guaranty.
    3. Same.
    It is sufficient, if it can be collected or implied from instrument itself.
    4. Same.
    A guaranty under seal need not express the consideration.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion .for a new trial made on the minutes.

      Charles H. Searle, for app’lt; Louis M. Martin and Charles R. Carruth, for resp’t.
   Martin, J.

—This action was brought upon a written instrument or guaranty, which was as follows:

“Clinton, FT. Y., March 22, 1890.
“For value received, the receipt whereof is hereby acknowledged, I hereby guaranty the payment of a certain bond and mortgage, bearing date the 22d day of December, 1885, and given by David Allen and Ann, his wife, to Loren Smith, deceased, within one year from the date of this instrument.
“ Witness my hand and seal, this 29th day of March, 1890.
“Geo. B. Northrhp. [l. s.]”

The defendant’s answer admitted signing and delivering a guaranty of the payment of the bond and mortgage mentioned in the foregoing instrument, and alleged that there was no valid consideration for the execution thereof, and “ that the consideration for the guaranty moving from plaintiff to defendant was the1 agreement on the part of the plaintiff to suspend, or not to foreclose within one year, and that the guaranty did not itself contain the agreement, and being an executory agreement, not already fulfilled, but to be performed afterwards, it should have been a part of the guaranty, and that without it the guaranty could not be enforced.” As a further defense, the defendant alleged that such guaranty was obtained by the fraud and false representations of the plaintiff as to the number of prior incumbrances there were upon the premises mentioned in the mortgage referred to in the guaranty, and that he relied upon such fraudulent representations when he executed the instrument in suit. Upon the trial the question chiefly litigated was whether the guaranty was obtained by means of such fraudulent representations. That question was submitted to the jury in a charge whereby it was instructed that, if it found that the representations alleged were made as proved by the defendant, the plaintiff could not recover. The jury found in favor of the plaintiff. A careful reading of the evidence contained in the appeal book renders it quite manifest that the question whether the guaranty in suit was obtained by the fraud or fraudulent representations of the plaintiff was one of fact, and that its determination by the jury should not be disturbed. The appellant, however, contends that this guaranty was void under the statute of frauds, for the reason that it does not state the agreement of the plaintiff, which was the consideration for the defendant’s promise to guaranty the payment of the bond and mortgage described therein. On the trial, it was proved that the sole consideration for the guaranty was the agreement of the plaintiff not to foreclose the mortgage within one year. This was not disputed. The defendant’s precise claim is that the plaintiff’s agreement to extend the time of payment of the bond and mortgage for the period of one year should have been set out in the guaranty as the consideration therefor, and that, having been omitted, it does not comply with the requirements of the statute of frauds, which provides that every agreement which contains a special promise to answer for the debt, default or miscarriage of another person shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith. We find no sufficient authority in the cases cited by the appellant to uphold his contention. We think they are clearly distinguishable from this. In the case before us, the written instrument upon which this action is based was a guaranty of the bond and mortgage described therein, and contained all the provisions of the agreement to be performed by the party who signed it. Hence, the question here is whether the consideration for the defendant’s agreement was sufficiently stated. The writing stated that, “for value received, the receipt whereof is hereby acknowledged,” the defendant guarantied the payment, etc. Thus the first question presented is whether the words “for value received” were a sufficient expression of the consideration to constitute a valid contract under the statute of frauds.

In Miller v. Cook, 28 N. Y. 495, it was held that the words “for value received,” in a guaranty of a promissory note, were a sufficient expression of the consideration to answer the requirements of the statute of frauds, and, in the opinion in that case, the cases of Watson v. McLaren, 19 Wend. 557 ; Douglass v. Howland, 24 Wend. 35; Cooper v. Dedrick, 23 Barb. 516, and Brewster v. Silence, 8 N. Y. 207, were referred to as authorities sustaining that decision. Mosher v. Hotchkiss, 41 N. Y. 589, is to the same effect The doctrine of the Miller Case was also recognized in Drake v. Seaman, 97 N. Y. 230. Within the doctrine of these cases, it would seem that the words “for value received” were a sufficient statement of the consideration of the guaranty in suit to answer the requirements of the statute. Moreover, it appeared on the face of the guaranty that the debt secured by the bond and mortgage was to be paid in one year from date, and the debt was then past due. Construing these instruments (the guaranty and the bond and mortgage) together, in the light of the circumstances of this ease, can it be said that it did not sufficiently appear on the face of the guaranty that the defendant’s undertaking was in consideration of the extension of the time of payment for one year ? If not, then the writing was clearly sufficient to fulfill the requirements of the statute. In Ryde v. Curtis, 8 Dowl. & R. 62, a guaranty was in these terms : “I hereby agree to become security for Mr." R Gh, now your traveler in the sum of £500, for all money he may receive on your account; ” and it was held that it sufficiently appeared upon the face of that instrument that the consideration for the guaranty was the continuance of the traveler in the service of the plaintiff. In Kennaway v. Treleavan, 5 Mees. & W. 498, where the words were, “I hereby guarantee to you the sum of 250 pounds in case Mr. P. should make default in the capacity of agent and traveler to you,” it was held that it sufficiently appeared in the guaranty that the consideration for the undertaking was the future employment of P. in the capacity of agent and traveler. In Newbury v. Armstrong, 6 Bing. 201, the instrument was : “I agree to be security to you for J. C., late in the employ of J. P., for whatever you may intrust him with while in your employ, to the amount of fifty pounds ; ” and it was held that the consideration for the guaranty sufficiently appeared,—that it was to be implied that C. had left one service, and the guaranty was given in consideration of his being taken into another. In Hutton v. Padgett, 26 Md. 228, the agreement was as follows : “ 1 hold myself responsible to W. A. & W. W. Padgett, of Baltimore, Md., to the amount of $2,000, for any drafts they have accepted, or may hereafter accept, for John Latouche, now of Alexandria, Va.and it was held that, to bind a party upon a collateral promise to answer for the debt or default of another, it was necessary, under the statute of frauds of that state, that the consideration, as well as the promise, should appear from the writing; that it was sufficient if it might be collected or implied from the instrument itself; and that it was to be implied from the guaranty in that case that the consideration was that the plaintiff would accept the drafts for Latouche. In Gates v. McKee, 13 N.Y. 232, the guaranty was as follows: “ I will be responsible for what stock M. E. McKee has had, or may want hereafter, to the amount of five hundred dollars ; ” and it was held that the consideration was sufficiently expressed within the requirements of the statute of frauds.

In Evansville Nat. Bank v. Kaufman, 93 N. Y. 273, Ruger, C. J., in speaking of a contract of guaranty, said : “It was formerly held that such contracts were void by the statute of frauds unless their consideration was also expressed upon the face of the instrument itself. Union Bank v. Coster, 3 N. Y. 211; Newcomb v. Clark, 1 Denio, 226. But this rule was modified by other cases holding that, where the nature of the consideration was fairly inferable from the contract sued upon, * * * it would satisfy the requirements of the statute. Gates v. McKee, supra; Church v. Brown, 21 N. Y. 315; Douglass v. Howland, 24 Wend. 35; Leonard v. Vredenburgh, 8 Johns. 29; Rogers v. Kneeland, 10 Wend. 218.”

In Barney v. Forbes, 118 N.Y. 580 ; 29 St. Rep. 980, the headnote which seems to fairlystate the substance of the decision in that case, is as follows: “Plaintiffs, who held certain bonds as collateral for a debt due them from M., received an inclosure sent by defendant, who was a member of the firm of D. & Co., containing a letter from M. to the effect that he had accepted a position in the house of R. & Co., and pledging a portion of his salary each year until the debt was paid; also asking that, ‘with this assurance, and the letter inclosed, the bonds be released.’ The letter referred to, which was also inclosed, was from defendant. After stating the employment of M. by his firm, the letter contained the following : “I will undertake that the agreement made by him to pay a certain amount to you each year shall be carried out until the indebtedness to your firm is liquidated.’ Plaintiffs accepted the proposition, and surrendered the bonds. In an action upon the guaranty contained in defendant’s letter, held, that the letters were to be taken and construed together; that upon their face it appeared that defendant’s promise was made to procure the release of the bonds, which it accomplished, and this was a valid consideration; that therefore the requirements of the statute of frauds were met, the promise was valid, and defendant was liable.”

When the doctrine of the cases cited is applied to this case, it becomes quite obvious, we think, that the nature of the consideration for the defendant’s undertaking was fairly inferable from the written provisions of the defendant’s guaranty, and that it was sufficient to satisfy the requirements of the statute.

Again, the agreement or guaranty upon which this action was brought was under seal, and it has been held that a covenant under seal is not within the statute of frauds, requiring the agreement to be in writing, expressing the consideration. Douglass v. Howland, 24 Wend. 35 ; Barnum v. Childs, 3 N. Y. Supr. Ct. 58; affirmed, 11 Barb. 14; Rosenbaum v. Gunter, 2 E. D. Smith, 415. The case of Barnum v. Childs, was referred to in Fargis v. Walton, 107 N.Y. 401; 12 St. Rep. 60, and the correctness of the decision was not questioned.

These considerations lead to the conclusion that the defendant’s contention, that the guaranty upon which this action was brought was void under the statute of frauds, cannot be maintained. We have examined the various exceptions by the defendant to the admission and rejection of evidence, and to the charge of the court, but have found none that would justify a reversal of the judgment, or that need be specially considered, and hence it follows that the judgment should be. affirmed. Judgment and order affirmed, with costs.

All concur.