text:
    ADELINE L. DOUGLAS, Appellant, v. GEORGE W. DOUGLAS and others, Respondents.

      Oas& on appeal — what it must contain — Inchoate right of dowee' — action to protect — resulting trusts — 2 J?. 8., 728, §§ 51, 52, 53.
    Where the only question an applicant wishes to raise on the appeal is whether, upon the facts found by the court below, its judgment was correct, a case containing the judgment roll and exceptions to the conclusions of law is sufficient. A husband fraudulently induced his wife to join in a conveyance of certain real estate, to be given in exchange for other real estate of the same value, by repre senting to her that she would obtain the same right of dower in the latter as she possessed in what was conveyed. To defraud her of this he caqsed the land taken in exchange to be conveyed to his sister, who knew nothing of the exchange or of the conveyance being made to her. Held, that the wife had two remedies :
    (1) At law to recover as damages for the fraud, the present value of her inchoate right of dower.
    (2) In equity to have a resulting trust in the land conveyed to the sister declared in her favor, to the extent of the present value of her inchoate right of dower, under section 53 of 2 Revised Statutes, 728, on the ground that to this extent a portion of the consideration was furnished b.y her, and the conveyance was taken in the sister’s name, without her knowledge or consent.

      Semble, that she might be considered, under section 52 of said statute, a creditor of her husband, to the extent of the present value of her inchoate right of dower
    Appeal from judgment of the Special Term, dismissing plaintiffs complaint. The cause of action arose out of an alleged fraudulent attempt on the part of plaintiffs husband to deprive her of her dower interest in certain real estate.

      John L. Rill, for the appellant.

      M G. Benedict, for the respondents.
   Davis, P. J.:

The point is made by the respondents that this case is not here in proper form to be reviewed by this court. The papers presented to us contained the summons and pleadings, the findings of fact and conclusions of law by the court below, the judgment, and exceptions to the conclusions of law. As the plaintiff did not raise any questions upon any exceptions to evidence taken in the course of the trial, or to the findings of fact, or to the sufficiency of the evidence given to sustain such findings, but was willing to accept the findings of fact as correct in all respects, and to except only to conclusions of law based upon such findings, we think the papers before us contain every thing necessary to constitute a case within the requirements of the Code. The exceptions raise but one question desired to be reviewed, and that is whether, upon the facts found, the court was right in dismissing the complaint.

The appellant insists that upon such findings she was entitled to judgment in her favor, and for the purpose of presenting that question nothing more than is contained in the papers seems to us to be necessary.

Every material allegation of fact contained in the complaint was found by the court ill favor of the plaintiff. The findings are as follows:

First. That on the 1st day of February, 1840, the defendant George W. Douglas, the husband of the plaintiff, was seized in fee simple and in possession of the several parcels of land situate in the city of New York, and particularly described in schedule A, annexed to the complaint, and in which premises the plaintiff had an inchoate right of dower.

Second. That in said month of February, 1840, the said defendant George W. Douglas, and one Alfred Holt contracted to exchange with each other certain parcels of land, to wit: The said George W. Douglas to convey to said Alfred L. Holt the above-mentioned premises, and the said Holt to convey to said Douglas certain other premises situate in the city of New York, particularly described in schedule B, annexed to the complaint.

Third. That the defendant George "W. Douglas induced the . plaintiff to unite with him in a conveyance of the first-mentioned premises to said Alfred L. Holt, by representing that she would have the same rights in the premises in Fifty-second street that she had in the premises to be conveyed by him to said Holt; that such representations were made with the intention of defrauding the plaintiff of her inchoate right of dower in said premises described in schedule A.

Fourth. That the plaintiff being so induced, did unite with her said husband in a conveyance of said premises, and a release of her inchoate right of dower therein, which said conveyance was recorded in the office of the register of the city and county of New York, in liber 1129 of conveyances, at page 395, on the 28th day of February, 1870.

That such conveyance to said Alfred L. Holt was made in pursuance of the aforesaid agreement with said Holt for an exchange of land, and such exchange was the only consideration therefor, as alleged in the complaint.

Fifth. That the defendant George W. Douglas, with the intent to defraud the plaintiff, and to prevent her from acquiring any right of dower in the premises, so agreed to be conveyed in exchange by said Holt to said Douglas (particularly described in schedule B, annexed to the complaint), caused the conveyance of said last-named premises to be made to the defendant Juliet Douglas instead of to himself; and, at the instigation and request of said George ~W. Douglas, and in pursuance of such fraudulent design, on the part of said George W. Douglas, the said Alfred L. Holt did, by deed, dated February 15, 1870, convey the said premises, described in schedule B, to the defendant Juliet Douglas, without her knowledge.

Sixth. That the defendant Juliet Douglas paid no part of the consideration of such conveyance, and now holds the title of said premises, in pursuance of the fraudulent design aforesaid, of depriving the plaintiff of any right of dower therein.

The prayer of the complaint is broad enough, in our judgment, to uphold any relief to which the plaintiff might, upon the facts found, be legally or equitably entitled; but if it were not, as both parties appeared and answered in the action, the court is at liberty to grant any relief consistent with the case made by the complaint and embraced within the issue, which the facts found might justify. (Code, § 275.)

• It must be considered as settled in this State that a wife’s inchoate right of dower in lands is a substantial and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end, and that the only exception to that rule (which, to us, seems a needless one) is where the State or its agents exercising the right of eminent domain take for public use the lands affected by said inchoate right of dower. (Simar v. Canaday, 53 N. Y., 298 [304]; Mills v. Voorhies, 20 id., 412; Matthews v. Duryee, 4 Keyes, 525 ; Jackson v. Edwards, 7 Paige, 386; Denton v. Nanny, 8 Barb., 618; Vartie v. Underwood, 18 id., 561.)

The inchoate right of dower of the plaintiff, Mrs. Douglas, in the three parcels of land of which her husband was seized was, therefore, property in her which both law and equity will recognize and protect. Her husband, as appears by the findings, had entered into an agreement to exchange these parcels of land to one Holt for certain other premises, being a house and lot on Fifty-second street, in the city of New York. The value of Holt’s interest in the premises in Fifty-second street and the value of the several parcels of land to be exchanged therefor were deemed equal. The court has found that the husband, with the intention of defrauding the plaintiff of her inchoate right of dower in the premises, then owned by him, fraudulently represented that he was about making the exchange so that she would have the same right of dower in the premises in Fifty-second street that she then had in the premises to be conveyed to Holt, and that the plaintiff being induced by such fraudulent representations united in a conveyance of the premises to Holt, and thereby released her right of dower therein, and that the husband, with intent to defraud the plaintiff and to prevent her from acquiring any right of dower in the premises so agreed to be conveyed in exchange by said Holt to her said husband, caused the conveyance to be made to the defendant Juliet Douglas, a sister of the said husband, instead of to himself; that such conveyance was made to Juliet Douglas without her knowledge, and that she paid no part of the consideration of such conveyance, and now holds the title of said premises in pursuance of the fraudulent design of depriving the wife of any right of dower therein. If, upon such a state of facts, there can be no relief either at law or in equity for the plaintiff, then a wife’s inchoate right of dower, which the courts adjudge to be valuable property, is rendered valueless by reason of the inefficiency of the courts of justice.

The court below, however, did not hold that the plaintiff was remediless. Its conclusion was that the plaintiff’s sole remedy was by an action of law against the husband for the fraud practiced upon her, and that she could not maintain this action for equitable relief. If this conclusion were entirely sound, we think it was error to have dismissed the complaint, for the court had power, and it would be consistent with the case made by the complaint and embraced within the issue to have ascertained (according to the principles laid down by tbe chancellor in Jackson v. Edwards, 7 Paige, 386, which was affirmed by the Court of Errors in 22 "Wend., 198) the damages sustained by the alleged fraud, and to have compelled the husband, by a decree properly framed for that purpose, to have invested such damages to accumulate for the benefit of the plaintiff during the joint lives of herself and her husband, and finally to be paid to her whenever her rights should have fully ripened, as suggested in the case referred to. The dismissal of the complaint as against the other defendant would not have affected or prevented this determination of the case against her husband, and .we think, therefore, that the learned judge erred in supposing, as in substance he did, that this was a case in which the plaintiff must be turned over to an action at law for her remedy. But we are of the opinion that the plaintiff was not remediless upon the facts found.in this case as against both of the defendants, and the premises conveyed to the defendant Juliet Douglas.

The findings show that she was a purely involuntary grantee, the conveyance having been made to her without her knowledge ; that she paid no part of the consideration of such conveyance, and now holds the title of said premises in pursuance of the husband’s fraudulent design to deprive the plaintiff of all her right of dower therein. The statute of trusts provides, that where a grant shall be made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as an alienee of such conveyance, subject only to the provisions of the next section. (1 E. S., 728, § 51.) Under this section it is clear that Juliet Douglas took the title of the land absolutely as against George H. Douglas. But the fifty-second section' of the same article and chapter, provides that every such conveyance shall be presumed fraudulent as against the creditors, at that time, of the person paying the consideration, and where the fraudulent intent is not disproved, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands. And the fifty-third section declares, that the provisions of the preceding fifty-first section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or where snch alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person.

These provisions of the statute were made to prevent frauds, and not to cover them. If it were necessary to the case, we should be strongly inclined to hold, that the plaintiff is to be deemed a creditor of her husband to the extent of the value of her incohate right of dower, because it is manifest that she intrusted to him the value of that right of dower for the purpose of executing an agreement which he made with her, and by which he induced her to part with its control, and which, in fact, if executed, would have restored to her an equally valuable right of dower in the other parcel of land. His obligation to perform that trust created a liability against him to the extent of the valué of his wife’s interest in the lands about to be exchanged, and his fraudulent conduct in causing the land to be conveyed to another certainly cannot impair the obligation he assumed by his agreement to have it so conveyed that her right of dower would attach.

An analogous case would arise if A represented to B that he was about to purchase lands of C, and would thereupon execute a mortgage to secure the purchase-price if B would lend him the amount, and B having lent the money to A, the latter should purchase of 0, but cause the conveyance to be made to D without consideration, and in such form as would give D the absolute title under the fifty-first section of the statute above cited.

In that case, it seems to us that B would be deemed the creditor in equity of A, to enforce the trust which would result in his favor by the operation of the fifty-second section of the statute. The difference between the supposed case and the present one is only in the character of the property obtained by the husband for the purpose of making the purchase of the house and lot which he caused to be conveyed to his sister. Equity will therefore adjudge the plaintiff to be a creditor in whose favor the trust results, as against the voluntary grantee of the house and lot to the value of her inchoate right of dower.

But if this be not so, there seems to be no difficulty, under section 53 of the statute, in attaching the trust to the house and lot in favor of the wife; for that section declares that the fifty-first section shall not extend to cases where an alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration, and the exception must extend to a case where the title has been taken in the name of a voluntary grantee, without the consent or knowledge of the person paying a portion of the consideration. It cannot be disputed, in this case, that in purchasing the house and lot in Fifty-second street, the plaintiff paid a portion of the consideration of that purchase by the grant of her right of dower. She was a purchaser to the extent of the value of that right, and to that extent must clearly be held to have paid the consideration of such purchase. The case clearly shows that the title of the property, which she thus united in purchasing, was taken by Juliet Douglas, by an absolute conveyance in her name without the consent or knowledge of the plaintiff who had thus paid a portion of the consideration.

It was the agreement, and it was her intention, that the conveyance should be taken to her husband by means of which an equally valuable incohate right of dower would have attached on the property purchased, and his fraudulent arrangement, by which the property was conveyed to his sister Juliet, cannot deprive the plaintiff of the right to assert that Juliet holds that property under a conveyance the consideration for which, to the extent of the value of her inchoate right of dower, has been paid by her, without her consent or knowledge. The plaintiff may well stand therefore, we think, upon the exception contained in the fifty-third section, and insist that a trust arises in her favor in the lands held by the defendant, Juliet Douglas, to the extent of the consideration paid therefor by her. In either of these views, equity will regard Juliet Douglas as hording the house and lot in Fifty-second street, in trust for the benefit of the plaintiff to the extent of the value of her inchoate right of dower therein, and by a decree in this action that right can be ascertained and declared; and we see no difficulty when it shall have been so ascertained and declared, in working out full protection to the plaintiff, either by realizing the value of the trust by a sale of the property or by a direct decree imposing upon the land the value of such inchoate right of dower as a specific lien.

The manner of ascertaining the value of an inchoate right of dower is given by the chancellor in Jaoleson v. Ed/wa/rds, above cited, and as considered in the opinion of Senator Yerplanok, in the same case in the Court of Errors. (S. C., 22 Wend., 511.) It is referred to also in the notes to rule 85 of this court.

If the facts touching the ages of the husband and wife, the value of her inchoate right of dower in the lands conveyed to Holt, and the value of the house and lot conveyed to the defendant Juliet Douglas, were before us, we could proceed and pronounce the proper decree upon the facts found by the court below. But they are not, and it becomes necessary to ascertain those facts before a proper judgment can be pronounced.

We think the proper course, therefore, is to reverse the judgment of the court below, with costs to the appellant, and to direct a proper decree to be entered, declaring the rights of the parties and directing a referee to ascertain their respective ages, and the value of the respective parcels of property above mentioned, with a view to such final judgment to be ordered by this court as shall be meet in the premises.

Brady, and Daniels, JJ., concurred.

Judgment reversed, with costs to the appellant. Decree to be entered as directed in the opinion. Reference ordered to ascertain the ages of the parties and the value of property as directed in opinion.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    ELIZABETH M. JONES, MARTHA S. POLLOCK and ARTHUR T. BUTLER, Appellants, v. CECILIA ANN BUTLER, Impleaded, etc., with others, Respondents.

      Trust estate — who may call trustee to account — JUstoppel— by deed of ancestor.

    On the 22d of April, 1818, Jane Ann Jones, in contemplation of marriage with one Thomas 0. Butler, Jr., conveyed all her estate to one Seaborn Jones, in trust, to receive and pay over the rents and profits thereof to the husband, during their joint lives, and to the husband during his life, in case he survived his wife; in case the wife survived the husband, to pay over and transfer the whole to her, if there were no children, and in case there were children, then to pay over the rents to her during her life, and upon her death, to the children during minority, and upon their respectively attaining their majority, to pay over and transfer to each child his proportion of the estate. The trustee was authorized to sell and convey real estate upon the assent, in writing, of the said Jane. Seaborn Jones (the trustee) having died, Thomas C. Butler, Sr., the father of Thomas 0. Butler, Jr., was appointed trustee in his place.
    In 1884, the said Thomas 0. Butler, Sr., Jane Ann Butler and her husband, conveyed a lot to one Jonas Butler, who thereafter conveyed it to one Frederick M. Butler, who thereafter conveyed it to Jonas Butler, who thereafter conveyed it to the defendant Cecilia Ann Butler. All these conveyances were made without any consideration whatever, and with knowledge, by all the parties receiving the same, of the fact that the premises were part of the trust estate. The title was held by Cecilia Ann as a cover for her father, the trustee.
    This action was brought by the children of Jane Ann and Thomas C. Butler, Jr., during their father’s lifetime, but after the death of the mother, to have the trustee removed and for an accounting, and to have the real estate conveyed by the trustee declared a part of the trust estate. Held,

    That the children of Jane Ann were not beneficiaries under the trust deed, as no provision was made therein for the disposition of the remainder of the estate in case of the death of the wife during the life of her husband.
    That they were entitled to maintain the action as her heirs at law, they being entitled to the remainder upon the death of their father, and being thus . interested in the preservation of the estate.
    That they were not estopped from claiming the real estate conveyed by the trustee, with the consent of their mother, for the reason that all the conveyances were made without any consideration, and with notice, by all the parties, of the fact that the property conveyed belonged to the trust estate.
    Appeal by tbe plaintiffs from a judgment rendered against tbem at Special Term, declaring a deed an estoppel, and by tbe executors of Tbomas C. Butler, Jr., one of tbe grantors in said deed, from sucb judgment, for tbe reason that sucb deed is declared an estoppel as to bis estate.
    Tbe action was commenced by tbe plaintiffs, children of Jane Ann Butler and Tbomas C. Butler, Jr., against Tbomas 0. Butler, Sr., trastee, Cecilia Ann Butler, bis daughter, and said Tbomas 0. Butler, Jr., bis son.
    Tbe plaintiffs, claimed an interest in their mother’s (Jane Ann Butler’s) estate, she having then recently died, of which estate tbe defendant Tbomas 0. Butler, Sr., was trustee, under a written trust; be denying any liability under said trust, and bis daughter, tbe defendant Cecilia Ann Butler then having tbe apparent title to certain premises in Broome street, which it was claimed by the plaintiffs belonged to their deceased mother’s estate, but was claimed by Cecilia Ann Butler adversely to the plaintiffs.
    The object of the action was for an injunction and receiver, and to have a new trustee substituted, and for an accounting, and mainly to have the Broome street premises (the trustee was insolvent) declared and adjudged to be trust property belonging to said estate of Jane Ann Butler, and to have it conveyed to the new trustee to be held under the trust during the remainder of the life of the plaintiff’s father, the defendant Thomas C. Butler, Jr., who was then living, and on whose death the trust was to terminate.
    From the findings of the justice before whom the action was tried, it appears that the plaintiffs, together with Thomas S. Butler and James J. Butler (the two latter of whom, on November 19,1857, assigned their interests and rights in this matter to the plaintiffs Elizabeth M. Jones and Martha S. Pollock), are the children and the only children of the defendant Thomas 0. Butler, Jr., and Jane Ann Butler, who were married on the 22d day of April, 1813, and she died on the 16th day of November, 1851, at Cincinnati. Her maiden name was Jane Ann Jones.
    That at the time of the marriage of Thomas 0. Butler, Jr., with Jane Arm, she had a large real and personal estate in her own right, and that a deed of trust, or marriage settlement, was thereupon executed in respect to her property, and accepted and acted upon by all the parties thereto, bearingd ate April 22, 1813, of which the following are the material portions :
    “ Georgia. — Articles of agreement made and entered into the 22d day of April, in the year of our Lord 1813, between Thomas C. Butler, the younger, of the city and State of New York, of the first part; Jane'Ann Jones and William Jones, guardian of the said Jane, of Burke county and State of Georgia, of the second part; and Seaborn Jones, of the city of Augusta, of the third part. Whereas, by God’s permission, a marriage is contemplated and will shortly take place between the said Thomas and Jane, and the said Thomas being in trade, is unwilling that any of the property which his intended wife now holds or is entitled to, or which may hereafter be coming to her by purchase, descent or otherwise, howsoever, should be affected by any debts, contracts or losses of him, the said Thomas: Now, therefore, this agreement witnesseth that the said Jane A. Jones, the intended wife, and the said William Jones, her guai’dian, for and in consideration of the suro of ten cents to them in hand well and truly paid, by the said Seaborn Jones, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said Sea-born Jones, all and every the real and personal estate, and wheresoever situated, belonging to her, the said Jane, or to which she is or may at any time hereafter be entitled. * * * To have and hold the said estate, real and personal, * * * unto the said Sea-born Jones, his heirs, executors, administrators or assigns, upon the trusts and conditions following, that is to say, in trust that until the said intended marriage shall take place, the said Seaborn Jones, his heirs, etc., shall and will permit the said Jane A. Jones, her heirs, executors, administrators and assigns, to have, hold and enjoy the said property and every part thereof, in as full and ample a manner as she now doth. In further trust, that from and after the said intended marriage may take place, the rents and profits of said estate shall be applied to the joint use, comfort and support of the said intended husband and wife during their joint lives, and to the said Thomas during the remainder of his life, should he survive the said Jane, his intended wife. In further trust, that the said estate and property, with the remaining profits thereof, and every part thereof, upon the death of the said Thomas during the life of the said Jane, and without living issue by the said intended marriage, shall there uponbecome invested in her, the said Jane, in as full and ample a manner as if she had remained sole and these presents had not been made; but in case there should be a child or children then living of the said marriage, the annual profits of said estate shall be applied to the support and maintenance of said Jane during the remainder of her life, in the support and education of such child or children; and after her death, the profits, as aforesaid, to be applied to the support and education of such child or children, during his, her or their minority; and on their respectively attaining the age of twenty-one years, all the remaining estate shall be divided between them in such proportions as their said mother, by deed or will, may direct; but should no such deed or will be made, then the same to be divided equally, share and share alike, to them, their

      heirs and assigns forever; which deed or will the said Jane is hereby vested with full power to make and revoke, as she may think proper; * * * and provided always, should circumstances make it necessary, the trustee for the time being to this agreement shall and may, with the assent in writing of her, the said Jane, dispose of and convey all or any of the estate and property belonging to her, the said Jane, and invest the net proceeds thereof in any other productive fund or property, and which shall thereupon be deemed held and considered to be as much embraced by this agreement as if set down in the schedule aforesaid. * * * ”
    That some two or three years after said marriage, in pursuance of the power contained in said marriage settlement, and with the assent of said Jane Ann, in writing, under seal, the said Seaborn Jones, trustee, etc., having died, the defendant Thomas 0. Butler, senior, then and now of the city of New York, and father of the said Thomas C. Butler, junior, was duly appointed trustee of said estate in the place of said Seaborn Jones, and that the said Thomas C. Butler, senior, took upon himself the execution of the said trust, and that the representatives of the said Seaborn Jones, trustee, etc., thereupon turned over to the said Thomas C. Butler, senior, all the said estate and property.
    That amongst the money and property so received by him, as trustee, etc., were two lots of ground on the north-east corner of Broome and Mercer streets, in the city of New York.
    That for more than twenty years last past, the said Thomas 0. Butler, Senior, has not paid over or applied in any way, the said trust property aforesaid, or any part thereof, or the rents and profits thereof, or any part thereof, in any way, to the use or benefit of the said Thomas 0. Butler, Jr., or Jane Ann, his wife, or either of them or their children, nor has he ever rendered an account of his trusteeship to any of the beneficiaries of said trust.
    That subsequent conveyances of said premises, as follows, have been made:
    “ Thomas 0. Butler, trustee of Jane Ann Butler, by and with the advice and consent of Thomas 0. Butler, Jr., and said Jane Ann • Butler, his wife, signified by their being parties hereto, parties of the first part; and Jonas Butler, of the city of New York, attorney-at-law, of the second part.

      “Warranty deed, dated May 1, 1834. Acknowledged by Thomas 0. Butler, Sr., in New York, Sept. 16, 1834. Recorded in New York, liber 313, p. 629 (ib). Sept. 20, 1834. Acknowledged by Thomas C. Butler, Jr., and Jane Ann Butler, in Ohio, August 26, 1834. Recorded (again) in New York, Liber 319, p. 529, Noy. 26, 1834. Consideration expressed, $8,500.
    “ Jonas Butler and Lucy Ann, his wife, to Frederick M. Butler, deed dated May 1, 1838, recorded May 21, 1838, Liber 384, p. 591. Consideration expressed, $8,500.
    “ Frederick M. Butler to Jonas Butler, deed dated May 11,1839, recorded December 9, 1839, Liber 404, p. 150. Consideration expressed, $8,500.
    “Jonas Butler and Caroline E., his wife, to Cecilia Ann Butler; deed dated November 26, 1852, recorded August 6, 1853, in Liber 632. p. 505; and conveying also another lot, known as number 3, Howard street, twenty-five by 100 feet, with covenant against his own acts only. Consideration expressed, $1,000, and pay off and discharge all liens upon such premises, and other valuable considerations.”
    That the title to said premises now stands in the name of the said Cecilia Ann Butler.
    That the said Jonas Butler, Frederick M. Butler and Cecilia Ann Butler are the sons and daughter of the said Thomas C. Butler, Sr., and that no money or other valuable consideration passed between any of the parties on any of the conveyances to the said Jonas, Frederick M. and Cecilia Ann, as aforesaid, and that they all had notice that said property belonged to said trust estate.
    That ever since the said premises were conveyed to said Thomas O. Butler, Sr., as trustee, and until the same were conveyed to the said Cecilia Ann, as aforesaid, November 26, 1852, he has either occupied the same himself as a residence for his family, or has rented the same and received the rents, and has applied them to his own use ; and that since the conveyance to the said Cecilia Ann, as aforesaid, she has collected, and she now collects and receives the rents of the said premises ; and that the said Cecilia Ann has never been married, and always has and even now resides with her father, and never had any property of her own of any considerable amount.
    That the said real estate and premises, although standing in the name of the said Cecilia Butler, yet the same do not belong to ber, but tbat she bolds tbe same as a cover, and tbat tbe same, in justice, belong to tbe beneficiaries under said trust as aforesaid.
    Tbat tbe said Jane Ann Butler departed this life at Cincinnati, aforesaid, on tbe 16th day of November, 1851, intestate, and without having, by ber deed or otherwise, made any direction or appointment respecting said estate as empowered by tbe said marriage articles of trust.
    Tbat tbe said Thomas S. Butler and James J. Butler, by writing, each executed under their respective bands, bearing date November 19, 1857, for value received, sold and assigned, tbe said Thomas S. Butler unto tbe said plaintiff, Ehzabeth M. Jones, and tbe said James J. Butler unto tbe said plaintiff, Martha S. Pollock, all and each of then respective rights, titles, claims or interests which they or either of them could or may have against tbe said Thomas C. Butler, Sr., or to any real estate located in tbe city of New York, connected with or growing out of tbe said Thomas C. Butler, Sr., being or having been trustee of tbe property of tbe said Jane Ann Butler, deceased, with full power and authority in tbe premises to have, sue for, collect and receive tbe same as they might see fit.
    Thomas C. Butler, Sr., died during tbe pendency of tbe action, and bis administrators were substituted for him therein.
    Thomas 0. Butler, Jr., also, died during its pendency.
    Tbe justice found, as conclusions of law :
    Eirst. Tbat no trust was created by tbe said marriage settlement in favor of tbe children of tbe said Thomas C. Butler, Jr., and Jane Ann Butler, in tbe event of tbe said Thomas C. Butler, Jr., surviving tbe said Jane Ann Butler, and tbat these plaintiffs are not beneficiaries under said marriage settlement, and have no interest in tbe trust estate under or through tbe said marriage settlement.
    Second. Tbat there remained in Jane Ann Butler, after tbe said marriage settlement, an interest in tbe trust estate contingent upon ber dying before ber husband. Tbat by the deed of May 1, 1834, to Jonas Butler, fully set forth in tbe foregoing findings of fact, tbe said Jane Ann Butler conveyed and parted with such contingent interest.
    Third. Tbat by tbe said deed of May 1, 1834, to Jonas Butler, and tbe covenants therein, tbe plaintiffs are estopped'from denying, as heirs at law of the said Jane Ann Butler, the validity of said deed, and are estopped from denying that the said Jonas Butler, grantee therein, acquired title to-the said premises through said deed, in fee simple absolute, and that the plaintiffs cannot maintain this action as such heirs-at-law.
    Fourth. That the defendant Cecilia Ann Butler is entitled to judgment against the plaintiff in this action, with the costs thereof.

      Nelson Merrill and F. B. Sherman, for the plaintiffs, appellants.
    Jane Ann Butler was a married woman in 183d, and, therefore, neither herself nor her heirs are estopped by her covenant. (Jadoson v. Van Derhvyden, 17 Johns. R., 167; approved in Martín v. Deroell/y, 6 Wend., Id [Court of Errors] ; Teal v. Wood/worth, 3 Paige Oh. R., d70.) The doctrine of estoppel does not apply in equity, in a case like this, where there was no consideration and the grantee had notice. (Oovington and Lexington B. B. Go. v. Bowl&r and others [Kentucky, 1873], reported in Zinn on Trusts, d68 ; Dominick v. Michael, d Sandf., d23 ; Carpenter v. Schermerhorn, 2 Barb. Ch. R., 31d.)

      G. P. Andrews, for Thomas C. Butler, Jr.’s executors, appellants.
    Under all the facts and circumstances as disclosed, Thomas C. Butler, Jr., was not estopped, nor are his representatives, by his consent to the deed to Jonas and his covenants contained therein, from claiming income from the Broome-street premises, which are a part of the principal of his wife’s estate. (Welland Canal Go. v. Hathaway, 8 Wend., d83, per Nelson, J.; approved in Payne v. Bvrnham, 62 N. Y., 69; Wheeler v. Wheeler, 5 Bans., 856; Perry on Trusts (2d ed.), 501, § dl6 and cases cited; Covington and Lexington B. B. Co. v. Bowler and others, 9 Ky., d70, cited Leading Cases on Trusts, by Zinn.) Moreover, the trustee, Thomas 0. Butler, Sr., was himself the actual seller and purchaser, and it has been so found in the case; and neither he nor his representatives can set up an estoppel in such a case. (See Damoue v. Famnmg and others, 2 Johns. Oh., 252, per Kent, Oh., which is the leading case in this State; Michou and others v. Girod and others [Supreme Court, U. S.], d Howard, 503.)

      Aslibel Green, for the appellants.
    Besides the life estate secured to her by the marriage settlement, Mrs. Butler’s interest in the Broome street property was vested neither in possession nor right. It was a mere naked possibility of reverter. (1 Washburn on Real Estate [4th ed.], 90, and the authorities there cited; Campbell v. Rcuwdon, 18 N. Y., 412,417; Morris v. Stephens, 46 Penn., 200 ; Jackson v. Corey, 8 Johns., 385; Hornbecksr. Westbrook, 9 id., 73; 2 Wash-burn on Real Estate, 228, 229, 238, 240, 244, 268, 524, 565, 567; 1 Preston on Estates, 175, 177; 2 id., 35.) It was, therefore, inalienable. (Jackson v. Waldron, 13 Wend., 248 ; Edwa/rds v. Yarick, 5 Denio, 664; S. C., Hoffman’s Ch., 382, and 11 Paige, 290; Pelletreau v. Jackson, 11 Wend., 110; Jones v. Roe, 2 Term R., 88 ; La/mpeds Case, 10 Coke, 51; Fearne on Rem., 371; 4 Kent, 261 [note 1,262], and cases there cited; 2 Washburn, 238-252; Robertson v. Wilson, 38 N. H., 48; Coke Litt., 265, note, 212; Dart v. Dart, 7 Conn., 250.) A deed of this interest would not pass the title, except by reason of the covenants of title operating as an estoppel. (Same cases, and 1 Prest. Abst., 302 ; Haajne v. Maliby, 3 Term R., 438; Eitch v. Fitch, 8 Pick., 483 ; White v. Patten, 24 id., 324-328; Jackson v. Wright, 14 Johns., 193.) But as Mrs. Butler was a feme covert when she executed the deed .of May 1, 1834, her covenants of title therein were void by reason of her disability. (Martín v. Donell/y, 6 Wend., 167; Carpenter v. Schermerhorn, 2 Barb., 314 ; Wright v. Shaw, 5 Cushing, 50; Jackson v. VamderTmyden, 17 Johns., 9.) It is well established that covenants and grants void as such, are void to estop. (Same cases, and Lowell v. DamAels, 2 Gray, 188.) As a feme covert, Mrs. Butler’s deed was limited to the estate actually vested in her at the time. It did not carry the reversionary interest now vested in her heirs, which was then a mere naked possibility, future and contingent. (2 Smith’s Leading Cases, 683; Dempsey v. Tylee, 3 Duer, 73-100 ; Coke Litt., 552; Dommiak v. Michael, 4 Sandford, 424; Wadleigh v. Gimes, 6 N. H., 18; Den v. Demarest, 1 Zabriskie, 541; Rawle on Covenants [3d ed.], 437; Teal v. Wood/morth, 3 Paige, 470.) It is found, as a fact, that the trustee did not sell the property for the benefit of the estate ; that he did not “ invest the proceeds in any other productive fund; ” that, on the contrary, there were no' proceeds, the conveyance having been to himself in fact without consideration. This was such fraud as to vitiate the deed, and no estoppel is raised by it in favor of the grantee against the grantor. (Hazard v. Irwin, 18 Pick., 95 ; Partridge v. Messer, 14 G-ray, 182; Phillips v. Potter, 7 R. ‘I., 289 ; Hartshorn v. Pay, 19 How., 222; Chitty on Contracts, 1035, and cases there cited; 2 Parsons on Contracts, 782, and. cases; Phans v. Ed/rmmds, 76 English C. L. Rep., 777.) It was void, as being in violation of public policy. (Wood/worth v. Bennett, 43 N. Y., 373 ; Sands v. Godmise, 6 Johns., 536.) Being void in part, it is void in toto. (Bussell v. Winne, 37 N. Y., 591; Saratoga Bank v. King, 44 id., 87.) The deed is void for the further reason that it was made in fact to the trustee, who could not be both purchaser and seller. (Prnoue v. Fanning, 2 Johns. Rep., 252 ; Miehon v. Girod [Supr. Court, U. S.], 4 How., 503.)

      I. W. <& O. G. Mitchell, for T. C. Butler, Sr.’s, representatives, respondents.
   Beady, J.:

The plaintiffs, as children of Thomas 0. Butler, Jr., and Jane Ann, his wife, were not cestms que trust under the marriage settlement or trust deed. In case the mother died before the father, there was no provision made for the disposition of the capital or corpus of the estate. This action, which was commenced by them upon the theory that they were beneficiaries under the trust, was not successful, because the court of last resort declared that it could not be maintained in that aspect, although the question whether they could obtain any relief as to such estate as heirs at law of their mother during the lifetime of the father, and whether they could prosecute any remedy as to the personal estate of the trust through an administration of their mother, as her next of kin, was suggested, but not determined in that case. (Jones v. Butler, 51 N. Y., 658.)

The suggestion as to the father arises from the fact that he was entitled to the income during his life, under the provisions of the trust and the quasi control of the property therefore through the trustee. Whether the Commission of Appeals, by the suggestion mentioned, designed to convey the impression that in this action the plaintiff’s remedy, if any, could not be prosecuted, is in doubt, and it renders the consideration of this case embarrassing, perhaps, because the complaint remains the same as it was when the decision referred to was made, and the facts are substantially unchanged.

The plaintiffs, as heirs at law, were in the case, although their claim, according to the opinion, was not presented in either of the aspects suggested, namely, as to their remedy, during the life of their father or through the administration of "the mother’s estate. When the action in one branch of it was before Justice Ingraham, he said, “ whether the children claim as cestuis que trust under the marriage settlement, or as the heirs of their mother, would be immaterial. The facts are sufficiently set out in the complaint to entitle them to relief in either character, and when the facts appear in the complaint the court is to give such relief as the parties are entitled to, whether ashed for or not in the prayer of the complaint,” and this view we understand to be sustained by numerous decisions. It is the law of the Code, and is one of the results which was contemplated by that law in opposition to the technical rules of pleading which under the common law system prevailed. The doctrine which grows out of the intermingling of the legal and equitable systems is, that if the plaintiff in an action is entitled on the revealed facts within the issues to relief under the whole law of the land it must be accorded. (See cases collected, 2 Wait’s Pr. Rep., 403.)

All the facts were, as stated, disclosed when the case was disposed of in the Commission of Appeals, and we have the right, doubtless, to assume, such being the fact, that the refusal or disinclination to consider the plaintiff’s rights, as heirs at law, arose from the fact that the action was not, for some reason, so presented as to enable that court to give it consideration. It may be that the administration of the mother’s estate was not represented, and therefore that the proper parties were not before the court. The action, as suggested, is the same now as then, and the doubt naturally springs into the mind whether if the case be decided in favor of the plaintiffs the court of last resort will not say, the facts are the same, the pleadings the same, and we held on a former occasion that the plaintiffs’ case, as heirs at law, was not and could not be presented to us herein. The learned justice at Special Term has, however, considered the rights of the plaintiffs as heirs at law, and that, doubtless, places the action before us in such a way — in such a new phase • — ■ as to justify us in the treating it as if the facts had not received any probable adverse consideration from the Commission of Appeals in that relation. The decision of the court below is against the plaintiffs on the propositions that they are not beneficiaries under the marriage settlement, and that by the deed dated May 1, 1834, they are estopped from denying as heirs of law of Jane Ann Butler the validity of that instrument, and are also estopped from denying that the grantee therein named acquired the premises through said deed in fee simple absolute. The deed of trust provided that should circumstances make it necessary, the trustee for the time being could, and might with her consent in writing, dispose of and convey all or any of the estate and property belonging to her, and invest the net proceeds thereof in any other productive fund or property, etc. The deed of May 1,1834, was executed by Thomas C. Butler, trustee of Jane Ann Butler, by and with the advice and consent of Thomas C. Butler, Jr., and the said Jane Ann, his wife, and the requisite formalities demanded by the trust deed were therefore duly observed in the transfer to Jonas Butler, the grantee, but the learned justice found in reference to this deed that no money or other valuable consideration passed between Jonas and the grantors, and that he had notice that the property described belonged to the trust estate. And it further appears that Jonas Butler and his wife conveyed the premises to Frederick M. Butler, and that the latter reconveyed them to- Jonas, and that Jonas and wife conveyed the premises to Cecelia Ann Butler, the daughter of Thomas C. Butler, Sr., and one of the defendants in this action. The learned justice also found that no money or other valuable consideration passed between any of the parties on the execution of any of these conveyances and that they all had notice that the property described in them belonged to the trust estate. It thus appears, therefore, that the Broome street property conveyed, through the instrumentality of the deed of May 12th, to Cecelia Ann Butler, was without consideration, and accepted with knowledge of the trust, and as the learned judge found, was held by her as a cover.

It also appears that he further found, and as a necessary consequence, that although standing in her name, the property does not belong to her, but to the beneficiaries under the trust.

The scheme on the part of the trustee, Thomas C. Butler, Sr., seems to have been to transfer the property mentioned to the defendant Cecelia Ann, and to keep it in that way for his and her benefit. The design also seems to have succeeded. In the various opinions presented to us in this case in the printed pamphlet the conclusion is generally expressed that the income of the estate to which, Thomas C. Butler was entitled abeady passed to the defendant Cecelia Ann, under the deed of May 1, 1834, and the subsequent conveyances, and that she is entitled therefore to the income, which, were it not for that deed, would have been his. It may be said here that there are no exceptions to the findings of fact, and that the non-payment of any consideration for the grants made and the knowledge by the grantors and grantees of the trust estate, and that they were dealing with it, and that it was the property in fact of the beneficiaries of the trust, and that the conveyance to Cecelia Arm was only a cover, stand confessed, and standing confessed, prove that the plaintiffs, as heirs at law, own the property. These facts make a formidable array against the doctrine of estoppel, and prevent its application.

The legal effect of them is to establish the conclusion that the property has never, in legal contemplation, passed away bom the trastee. Cecelia Ann Butler holds it for him.

The conveyance in which the plaintiffs’ father and mother united was for the purpose of changing the corpus of the estate. This is all that could be done under the trust deed, and all the parties knew it. They admit the fact. It was not changed.

The conveyances moved in a circle back to the trustee, because Cecelia Ann held it for him as a cover. She knew this could not be done, and when the title reached her she knew it was in legal effect back again to its origin after many wanderings. And this, it may be said, makes the deed void, for the reason that it was in effect made to the trustee, who could not be both purchaser and seller. (Davoue v. Fanning, 2 Johns. Ch. Rep., 252; Michoud v. Girod, 4 How. U. S. Rep., 503), and eases cited in point thbd in that case.

The doctrine of estoppel to prevent the abuses or injustice that might otherwise arise, is confined within just and rational limits, and a party is not estopped unless he has gained some benefit or advantage by the act which is relied upon as an estoppel, or unless the party claiming the benefit of the estoppel was induced to alter Ms condition. (Smith v. Ferris, 1 Daly, 18, and cases cited. See, also, Payne v. Burnham, 62 N. T. Rep., 69.) "What benefit did Jane Ann, the plaintiff’s mother, or her husbatd, derive from the deed in which she joined, and what injury did it cause to their grantee or Ms alienees.

The answer is qrnte patent: no injury and no advantage. Neither their grantee nor any of the subsequent grantees were injured. They accepted their deeds in furtherance of a scheme, and it is wholly immaterial whether it is called a fraud or not.

Whatever in legal parlance the facts justly provoke as a designation, the courts will apply. The doctrine of estoppel stands as a guardian against, not in favor of, fraud, and equity rejects estoppels and pursues the actual truth, and will determine and decree according to the verity and justice of the fact. (Perry on Trusts [2d ed.], 501, § 416.) If it were applied in this case, a new element will have crept into its office, and it will sustain, not prevent, a wrong. If it can further the claim of Cecelia Ann Butler, it will award her property for wMch she has not paid, and to the fee of which she is not only not entitled, but which she holds as a cover, and in violation of acknowledged and established rights; although, for the mortgage executed by her as a part of the design, she is entitled, perhaps, to protection, if the property be not of sufficient value to afford it, of which, however, there is no doubt. Having arrived at these conclusions, the result is that the learned judge at Special Term was in error in declaring that the deed of May 1, 1834, was an estoppel upon the plaintiff. It was not. It is said, however, that the action cannot be maintained, because the plaintiffs, though heirs-at-law, were not entitled to the estate until the death of then* father, who was living when this action was commenced. The answer is, they had an interest in the trust estate. They were part owners of the fee, and interested in the preservation of the estate from waste and malappropriation. They had the right, therefore, to ask for the appointment of a new trustee, and for an accounting from the existing one.

Whatever right their mother possessed in that respect they succeeded to, and could exercise in the same way. The facts justified it. It was not an interference with the interests of their father, but for mutual protection, because, whatever was done for the preservation of the estate was for his benefit. We entertain no donbt of this proposition. The power of this court to remove a trustee, and to call for his. accounts by the owners of the fee, cannot be questioned, nor can its power be doubted to settle existing equities revealed in such a procedure.

It is not necessary to discuss the question whether, in reference to the personal estate, it is requisite that the administration of the mother’s estate should have been represented, because this action could have been maintained in regard to the real estate, and for the selection of a trustee. These questions are thus mentioned although the selection of a trustee is not necessary, the trust having ceased by the death of Thomas 0. Butler, Jr., the father of the plaintiff, but the representatives of the deceased trustee are properly before the court in relation to his accounts and any claim that may arise upon them.

They are also alluded to because this action, it is claimed, was prematurely commenced, namely, during the life of the father, and the objection, therefore, relates back to the time when the action was commenced. It follows from these views that the judgment of the Special Term must be reversed, and it is equally clear that there me issues which require determination upon this judgment of the court thus expressed in reference to the deed of May 1, 1834. There must, therefore, be a new trial.

If, it may be said in conclusion, it is necessary, in order to a complete adjustment of all matters, that the administration of the mother’s estate shall be represented, the practice, by amendment or by supplemental complaint, makes ample provision for the addition of all the necessary parties, or elements, to accomplish the object in view. As many of the facts seem to be found, it may be the better course to send this case back to the Special Term for the preparation of the proper decree under the views expressed herein, with the right of either party to furnish further proof, and without prejudice to any application for any amendment by supplemental complaint or otherwise. If, however, this mode of procedure with regard to the facts already found be not acceptable, a new trial is ordered, with costs to abide the event. The order to be entered hereon to be settled by Justice Beady.

Daniels, J., concurred. Davis, P. J., not sitting.

Judgment reversed, new trial ordered, with costs, to abide event, unless the parties stipulate to modify the judgment as directed in . . * opinion.

Order for accounting modified as directed in opinion.

Appeal from orders staying proceedings dismissed, without costs.

Motion to dismiss appeals denied, without costs.

Orders to be settled by Brady, J.


author: Beady, J. :

text:
    ISAAC J. GEERY and HENRY B. SCHOLES, Executors, etc., Respondents, v. GEORGIANA F. WEBSTER, Impleaded with WILLIAM GEERY and others, Appellants.

      Plea of pendency of former suit for same ca/use — when allowed,.

    The plaintiffs herein commenced an action in the Court of Common Pleas against the defendant Geery and wife, to set aside certain conveyances alleged to he fraudulent as to creditors, and caused notice of lis pendens to he filed therein. While that action was pending, the present one was commenced against the same defendants, together with the defendants G. F. Webster and others, to have the same conveyances set aside, and also other conveyances by which the same property was fraudulently conveyed to the defendant G. F. Webster, and by her conveyed to other defendants. To this action the defendant Webster demurred, on the ground that another action for the same purpose between the same parties was pending. BeU, that the demurrer was properly overruled :
    (1) Because the defendant Webster was not a party to the former action, and therefore not prosecuted for the second time for the same 'cause.
    (3) Because, as the conveyance to her was made after the commencement of the former action, it could not be directly affected thereby, unless the complaint therein was amended, which the plaintiffs could not be forced to do.
    Appeal from an order overruling a demurrer interposed by the defendant Georgiana F. Webster to the complaint.

      F. J. Fiihicm, for the appellants.
    It is not necessary that the parties to each action should be the same. (Castle v. Brown, 14 N. Y., 329 ; Campbell v. Hail, 16 id., 515; Bcmley v. Brown, 65 Barb., 107,126,127; Elile v. Bingham, 7 id., 494; Green r. Oíanle, 12 N. Y., 343 ; Lcmrenee v. Hunt, 10 Wend., 81; Bates v. Stanton et al., 1 Duer, 79; Ritter v. Worth, 58 N. Y., 627; The People v. Stephens, Weekly Digest, vol. 2, p. 518; Tyng v. Glark, 9 Hun, 275.) The first suit affords the plaintiffs tbe same relief, by reason of tbe Us pendens filed, as is attainable in this suit; and when suck is tbe case, tbe plea of a prior suit pending may be pleaded by demurrer, and tbe plea will be sustained. (1 Daniel Cb. PL and Pr. [4th ed.], pp. 561, 632, 633; Sanders v. Frost, 5 Pick., 259-275; 1 Barb. Ch. Pr., 125,126; Lam v. Rigby, 3 Bro. Ch., 60; Pickford v. Hunter, 5 Simp., 122.; Story Eq. Pleading; Gordin v. OordUn, 26 How. Pr., 191.)

      Edwin T. Rice, for the respondents.
    In equity, to sustain a plea of another suit pending, it is requisite that the whole effect of the second suit should be attainable in the first suit. (1 Barb. Ch. Pr., 125; 1 Dank Ch. Pr. [4th ed.], 632; Story’s Equity PL, § 739; Lam r. Rigby, 4 Brown C. R,., 60; Bickford v. Hunter, 5 Sim., 122; Reme v. Dalby, 2 Sim. & Stu., 464; Way v. Bragaw, 16 N. J. Ch., 213-218; Hertell v. Van Burén, 3 Edw. Ch., 20-30; Hadre v. Baker, 5 N. Y., 357; Pullman v. Alky, 53 id., 637; Oordier v. Gordier, 26 How. Pr., 187.)
   Beady, J. :

The p1a.int.ifFR seek by this action to set aside certain conveyances executed by William Geery and others, including the defendant Georgiana F. Webster, and by which the apparent title was in the wife of said William, as part of a scheme by which the said William designed to defraud his creditors. The complaint herein, among other averments, contains a statement that an action to accomplish substantially the same purpose was commenced against William Geery and Louisa, his wife, in the Court of Common Pleas, and proceeded to judgment, but that on appeal to the Court of Appeals the judgment was set aside and a new trial ordered. It also avers that after the commencement of that action the defendant Georgiana again accepted a deed of the property affected by the fraudulent transfer from William Geery and his wife, and that she, in union with her husband, subsequently transferred the premises to different

grantees. It appears, also, from the complaint that the lis pendens, which was filed when the former action was commenced, included all the property, but the name of Georgiana does not appear in it. It was not necessary, perhaps, that it should, because she had no title then to the property. It will be perceived from this statement that another action for the same cause was pending, except that the last conveyance to Georgiana was not set forth, nor were the conveyances from her to her grantees. These conveyances, as already shown, were subsequent to the commencement of the action in the Oommon Pleas, and could not have been included in that action when it was begun. The prior conveyances, which might affect the title of Georgiana, were assailed, it is true, but the last conveyance to her was not, and it would not be directly affected by that action without an amendment of the complaint in some form. The pendency of the action was, however, under the circumstances, deemed a good reason why the complaint herein should be demurred to. A demurrer was consequently interposed by her and overruled. She now appeals. Was the judgment of the court below correct ? The rule in equity is, that it must appear that the whole effect of the second suit would be attainable in the first (1 Barb. Oh., 125); and this rule is founded in reason. In this case the whole effect could not be obtained without an amendment of the complaint in the first action, and there is no rule of law which compels a party to file a supplemental complaint. It is not compulsory. (Cordier v. Cordier, 26 How. Pr. R., 187.) He may resort to another action; and as to the defendants in the original action, if others be made parties, as suggested in the case of Cordier v. Cordier (supra), it comes within the provision authorizing a stay in one action till the other is finished. When the causes are identical, and the plaintiff can accomplish all in either action, the result must be different. It is not considered necessary, in order to dispose of this appeal, to enter into any disquisition upon the meaning of the word “ parties,” or the effect of the filing of the Us pendens. It is enough for the purposes of this appeal that this action is clearly shown to embrace more than the former action, and that the additional relief demanded rests on events occurring' after the former action was commenced. The defendant’s remedy, if any she have, is by a stay. It may be said, in addition, that Georgiana is not, for the reasons assigned, in the position requisite to protest by demurrer against tbis action. She was not a party to tbe former action, and could not have been, necessarily. Sbe is not prosecuted tbe second time. Tbis is tbe first action as to ber, and although sbe is a privy in estate by tbe conveyance from Geery, yet tbe Us pendens, if it affected ber rights at all, did so indirectly. In other words, conveyances in existence might be fraudulent and hers good, except so far as it might be prejudiced by tbe notice given to tbe world through tbe Us pendens. We think tbe decision rendered was correct, therefore, and tbe order entered is affirmed, but with costs to abide tbe event.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, costs to abide event.


text:
    WARREN S. SILLCOCKS and JOSHUA S. COOLEY, Appellants, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Common emnoil of New York — gold badges for membws— Contract for, ultra m'es.

    The common council of the city of New York had, in 1870, no authority, either express or implied, to direct the purchase of gold badges for the members of the common council as insignia of office.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe dismissal of tbe complaint at tbe Circuit.
    Tbe action was brought to recover tbe price of forty-nine gold medals, at $100 apiece, furnished to tbe members of tbe common council of tbe city of New York in 1870, in pursuance of a resolution of tbe common council directing their purchase by tbe clerk. Tbe complaint was dismissed at tbe Circuit upon tbe ground that no contract therefor bad been awarded upon proposals invited by public advertisement, and no previous appropriation covering, tbe expense of tbe purchase was proved.

      Joh/n H. Strahan, for tbe appellants.

      D. J. Dean, for the respondent.
   Beady, J.:

Notwithstanding the able argument of the appellant’s counsel, we think the judgment entered herein must be affirmed. The powers possessed by the common council are those conferred by charters and special laws, and expressed or implied. It does not appear that a gold badge was necessary in order to enable a member of the common council to perform his official functions, and the expense incurred for that purpose was ultra vires, and, therefore, entailed no liability upon the defendants.

No provision having been made by express enactment, for such a purchase, its necessity alone could warrant a resolution to procure it.

The contracts of a municipal corporation for an object not essentially necessary, and not comprehended by, nor within the power of the municipality itself to make, cannot be enforced. (Hodges v. Buffalo, 2 Den., 110 ; Gamble v. Watkins 14 N. Y. S. C. R., 448.)

If it were otherwise, then personal expenditures under the guise of corporate necessities could be made for a variety of purposes, having in fact no relation to the municipality or the discharge of the duty of any of its members.

The judgment must be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


author: Brady, J.:

text:
    ADELAIDE M. De LAVALETTE, Respondent, v. FREDERICK B. WENDT, as Executor of DAVID M. PEYSER, Deceased, Appellant.

      Mveesme damages — power of General T&rni as to.

    Where a motion for a new trial is made upon the ground that the damages given are excessive, the court, at General Term, should, if satisfied that such is the case, ex debito jusiitim, require that the judgment he reversed, and grant a new trial, even though there be doubt as to whether or not any exception was taken by which the error in the charge of the court below, from which such excessive damages resulted, was distinctly pointed out.

      Appeal from a judgment in favor of tbe plaintiff entered on tbe verdict of a jury, and from an order denying a motion for a new trial entered upon the minutes of tbe justice before whom tbe action was tried. This action was brought to recover for damages resulting to plaintiff from an alleged breach, by defendant’s testator, of a contract for board and lodging. Tbe evidence tended to show that plaintiff rented to defendant’s testator certain rooms, and agreed to board bis family from September 1,1866, to May 1,1867, for $150 a week.

      Qhmies Wehle, for tbe appellant.

      Albert Stiekney, for tbe respondent.
   Brady, J.:

Tbe plaintifE in this action seeks to recover damages, sustained by her in consequence of tbe testator’s violation of bis agreement with her, and by which be engaged board and lodging for himself and family from tbe 1st September, 1866, to tbe 1st May, 1867. Tbe testator paid under tbe contract until tbe 4th December, 1866, but tbe rooms which be bad engaged were not relet until tbe 21st December, 1866, when they were taken at $125 per week, by a family larger than that of tbe testator. Tbe terms of the agreement was tbe subject of conflicting evidence, and a due bill given by tbe plaintiff to tbe testator, for tbe sum of $500, and a release said to have been executed by her to him, were also contentions upon tbe trial. It was claimed on tbe part of tbe defendant that tbe due bill was a loan, and by tbe plaibtiff that it was in fact a payment. It was alleged by tbe defendant that tbe release was duly executed and fully understood by tbe plaintiff, while she declared that it was designed only to release tbe property of tbe testator, which she held by virtue of her ben or right of action, created by tbe contract made with him. Evidence which was conflicting, was given in relation to these instruments, and tbe issues thus created were submitted to tbe jury in tbe usual way. No exceptions were taken upon tbe trial, which require examination, and tbe exceptions to tbe charge, and to tbe requests to charge, do not, save one, require any other notice than tbe statement that due examination and eonsideration of them has failed to impress the duty of granting a new trial. The rules of law applicable to the case in all respects, with the single exception referred to, were fully, correctly and clearly stated, and the complications arising so explained to the jury, that the sub-emission by the justice presiding was unexceptionable. The error to which allusion is made is in reference to the rule of damages. The learned justice, at the beginning of his charge, expressed the rule properly, and as follows:

The Supreme Court in this State, in a case very similar to this, many years ago decided, that a landlord who had let rooms, was not entitled as matter of course to recover from the tenant who had violated his contract, and abandoned the rooms, the whole price stipulated to be paid for the use of the rooms, to the end of the period specified in the contract, but only for such damages as had directly and necessarily resulted from the breach of the contract, and that the plaintiff could not refuse to rent the rooms to other lodgers, leaving them idle, and then recover against the defendant, as for use and occupation; that although one party was chargeable with a breach .of the contract, the other party had no right to conduct himself in such a manner as to make the damages unnecessarily burdensome.” (Wilson v. Martin, 1 Denio., 605; Mary A. Wetmore v. J. Hamilton Jaffray, 16 N. Y. S. C. R., 140.)

There was no exception to this part of the charge. In concluding the charge, however, the learned justice said: If she is entitled to recover, she is entitled to recover from the 4th of December, 1866, to the twenty-first of December, at the rate of $150 a week, because it does not appear that she did or could let the rooms during that period, and the amount as computed by the witnesses, and not disputed, would be $514.28. She is entitled to recover, if she is entitled to recover at all, from the 21st of December, 1866, to the 1st of May, 1861, at the rate of twenty-five dollars per week, that being the difference of price that Peyser had agreed to pay, and the price which Block actually did pay, and that would amount to $464.28, which would make the principal sum of $918.56. If she is entitled to recover at all, she would be entitled to recover interest on that sum, which would be $862.92, making the total amount of the claim $1,841.48, and in that part of this expression of the law of damages, relating to the time the rooms engaged were occupied, it will be seen that he was in conflict with what was stated at the beginning of the charge, because $150 a week was the whole price, and not therefore the damages. If the testator and family had occupied the rooms, and had received their board, the plaintiff would not have been entitled to more than $150 a week, and her damages could not for the period be such a sum, because the board would necessarily have involved expenditures in its procurement, and in its preparation. There was not however, any exception at this point interposed to this view. Subsequently the court, in answer to a request, said, among other things : If the plaintiff is entitled to recover at all, she is entitled to recover $1,841.48, as I have already stated to you.” The defendant excepted generally to what the learned judge said, and now claims that it was designed as an exception to all that was said, and which would include the erroneous rule of damages, because the sum mentioned was made by allowing the $150 per week for the period during which the premises were vacant. It is insisted by the plaintiff that the exception is worthless, because it did not select the reference to damages from the rest of the matter, and did not therefore point out, with sufficient particularity, the item objected to.

In the result it will make no difference whether the plaintiffs view be correct or not. This court has the power to correct a judgment, when the damages are excessive (Cassin v. Delany, 38 N. Y. Rep., 180), and when an improper rule has been stated, and a motion is made for a new trial, on the ground that the damages given are clearly unauthorized, the court m débito justitim, may require that the amount be reduced, or direct that a new trial be granted, even, although there be doubt as to whether an exception was taken. In the case of Wehle v. Haviland (42 How. Pr. Rep., 409), the damages were declared to be excessive on well established rules, and the court directed a new trial, unless the excess was remedied. (See also Finch v. Brown, 13 Wend., 601.)

This was done, because when it clearly appears that a wrong has been done, the court should not ratify, but correct it. In this case it does clearly appear that the damages allowed for the period from the third to the twenty-first December were erroneous. We can not' direct a reduction, because no facts were shown from which the damages for the period could be ascertained. The whole sum given must therefore be deducted or a new trial must follow. It is not’ at all certain tbat tbe interest allowed on tbe principal was properly calculated, but as that may be corrected when tbe deduction suggested is made, it is not necessary to consider tbe matter further. Tbe result of this review is tbat tbe sum of $514.28, and tbe interest allowed must be deducted from tbe amount recovered or a new trial is ordered.

' We think tbat tbe defendant not having distinctly pointed out tbe error should not be allowed tbe costs of this appeal, if the deduction be made. If tbe deduction be not made, tbe costs are to abide tbe event. If tbe deduction be made, tbe judgment is in all other respects affirmed as to costs allowed as well.

We do not feel warranted in interfering with tbe order made at tbe Circuit on the subject of costs.

Tbe order to be entered to be settled by Justice Beady.

Davis, P. J., concurred.

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

Judgment reversed, new trial ordered costs to abide event, unless plaintiff stipulate within twenty days after service of order to deduct $514.28 and interest from tbe amount recovered, in which case judgment modified accordingly and affirmed as modified, without costs to either party on this appeal.


author: Bradt, J.:

text:
    BENJAMIN F. HASKIN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Farmer judgment — when a bar.

    In an action by plaintiff to recover salary as an assistant clerk, defendant set np as a counter-claim that money had been paid to him as stenographer, to which he was not entitled. Upon the trial plaintiff showed that a portion of such money was paid under a judgment against the "defendant in an action brought by him, in which he alleged that he was duly appointed stenographer and discharged all the duties required bylaw. Defendant offered to show that during the months for which his salary as stenographer was paid he was incompetent

      to, and did not render any such service, and that defendant was ignorant of these facts at the time of making the payments and of the bringing of the former action. Held, that the first judgment was a bar, and that the evidence offered was properly excluded.
    It is not permitted to a defendant to litigate several demands growing out of the same contract in several actions, all upon the same defense. The judgment in the first action is conclusive in all the other actions.
    Ajppbal from a judgment in favor of the plaintiff, entered by direction of the court at Circuit, in an action to recover the salary of the plaintiff, as assistant clerk of the Tenth District Court in New York city.

      Fra/neis I/ynde Stetson, for the appellant.

      Abel Orooh, for the respondent.
   Bradt, J.:

The plaintiff seeks to recover his salary as assistant clerk of the Tenth District Court. The defendants set up, as a counter-claim certain moneys paid to him as salary while stenographer of the court and prior to his appointment as assistant clerk. The plaintiff on the trial, however, interposed the record of a judgment recovered against the defendants for a part of his salary as stenographer. The defendants offered to prove, nevertheless:

First. That during the months of January, June, July, August, September, October, November and December, 1874, and the month of January, 1875, the plaintiff was as a matter of fact unable and incompetent to render any services as stenographer.

Second. That as a matter of fact he did not render any such service during either of the said months.

Third.' That the payments made to him for his salary as stenographer during such months were made in ignorance of these facts.

Fourth. That the defendants had no actual knowledge of these facts at the time of the former action and judgment.

The offer was overruled and the defendants excepted. The ruling at the Circuit was correct. The judgment was a bar. It established the right of the plaintiff to his compensation as a steno grapher. (Embury v. Conner, 3 N. Y., 511; Harris v. Harris, 36 Barb., 88; Clemens v. Clemens, 37 N. Y., 59 ; Gates v. Preston, 41 id., 113; Smith v. Hemstreet, 54 id., 644.) Tbe complaint on which the judgment was obtained alleged that the plaintiff was duly appointed stenographer, and thereupon entered upon his duties and duly performed all that were required of him by law and by the justice and clerk of the court. The defendants denied these allegations. It is quite apparent that they involved Iris ability to do the service for which he was appointed, and the judgment determines that he was. The issue created on that subject was decided in his favor. Several of the payments sought to be applied as a counter-claim were made after the judgment was recovered, and it does not appear when the payments were made, that the objection was taken that the services were not rendered.

It is quite evident that the defense, however, rested upon the incompetency of the plaintiff, and, therefore, his failure to perform the duties of his appointment would be certainly sufficient to enable the plaintiff to recover, if he attended ready to do his duty, whether required to do any thing or not. (See Howard v. Daly, 61 N. Y., 362.) His attendance does not seem to have been questioned, his competency was determined, and the determination was a bar. His competency not only could have been, but was, litigated in the action brought by him. We cannot disturb the judgment, therefore, without invading well settled principles. Suitors are supposed and required to know their rights, and if they omit to present them at the proper time, must take the consequences. If it were permitted a defendant to litigate each demand growing out of the same contract upon the same defense, there would be no stability in the judgments pronounced and no end to litigation. Judgments must have the character of finalities or they are valueless.

The judgment appealed from was rightly pronounced, and must be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    ANNE CONNORS, as Administratrix of MARY ANN CONNORS, Deceased, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK and others, Defendants.

      Removal of dangerous buildings in New Torle — depm'tment of buildings — ehap. 625 of 1871; ehap. 547 of 1874.
    The duty of examining and removing dangerous buildings and structures in the city of New York is wholly vested in the department of buildings, and the officers and agents thereof are not the agents of the city, and the city is not responsible for their acts or omissions.

      Mdxmilian v. The Magor (62 N. Y., 160) followed.
    Motion by tbe plaintiff for a new trial, on exceptions ordered to be beard in tbe first instance at tbe General Term after an order dismissing tbe complaint. Tbe action was brought against tbe city of New York, James M. Sbaw, tbe owner of a building, and Amos N. Titus, a contractor, who, it was alleged, bad agreed to take down tbe wall thereof, tbe fall of which gave rise to this cause of action, and bad wrongfully neglected to take tbe same down.

      Daniel P. Dycld/y, for tbe plaintiff.

      D. J. Dea/n, for tbe defendants.
   Brady, J.:

Tbe complaint herein sets forth that in 1875, a building belonging to James M. Sbaw, situate on bis lands known as 25 Duane street, in tbe city of New York, was so injured by fire that tbe walls thereof became unsafe to tbe knowledge of tbe defendants; that they permitted them to remain thus standing until one of them fell and so injured tbe plaintiff’s intestate that she died. Tbe answer contains a denial of knowledge or information sufficient to form a bebef of all tbe material facts.

Hpon tbe trial tbe complaint was dismissed on tbe ground that no cause of action was contained therein against tbe defendant, tbe City. Tbe ruling of tbe learned justice presiding was based upon tbe case of Maxmilian v. The Mayor (62 N. Y. Rep., 160). It appears, upon proper investigation, that tbe duty of examining and removing, if necessary, any and all structures, or parts of structures forming parts of buildings, when dangerous, devolves upon tbe department of buildings, wbicb was created by special statutes, providing in detail not only for tbe manner in wbicb buildings shall be constructed, but also for tbe way in which they shall be removed, taken down, or parts thereof removed or taken down, under tbe direction and at tbe instance of tbe department mentioned. (Chap. 625, Laws 1871; chap. 547, Laws 1874.) These acts also vest large discretionary power in tbe superintendent of tbe department, and authorize him to modify or vary any of tbe several provisions to meet tbe requirements of special cases, on presentation of tbe facts by petition to this court, and on obtaining a certificate thereupon that be is empowered to exercise such discretion.

Tbe powers conferred upon tbe department are in many respects indeed quasi judicial and tbe machinery of tbe law is put summarily in motion when tbe department acting under tbe laws call for its application. (Sections 31, 33, 36, 37, 38, 39, chapter 625, Laws 1871.) Tbe defendants have no authority oyer tbe department in tbe exercise of tbe powers conferred, and are without supervisory control. They appoint tbe superintendent, and they pay tbe expenses of tbe department, wbicb was created, not for tbe immediate benefit of tbe municipality, but as a means to tbe exercise of tbe sovereign power for tbe benefit of all citizens. Tbe officers are not tbe agents or servants of tbe corporation, therefore, but are public agents or servants of tbe public at large, and tbe corporation is not responsible for their acts or omissions, nor for tbe acts or omissions of tbe subordinates appointed by them. In stating these legal propositions we are repeating what was said in tbe Maxmilian case (supra), and they seem to meet tbe exigencies of this case exactly. If tbe defendants were not thus relieved of tbe duty of guarding tbe public from tbe danger of permitting unsafe walls to remain standing a different conclusion must have been expressed; but they have been relieved, and tbe whole subject transferred to a special department with duties prescribed and imposed, and it is supposed to tbe greater advantage and greater security of tbe citizen. Tbe defendants by making tbe selection of tbe officer who is to preside over tbe department, and by paying tbe expenses entailed by its existence, do all the duties they are called upon to perform except to remove the superintendent when proper charges are made.

The department must, in other words, do what the defendants would have been required to do, had not the sovereign power created it, imposing upon it the necessary obligations and conferring upon it the necessary authority to make it effective. We think the case of Maxmilian, supra, and this parallel, therefore, and that this is to ' be governed by the same rules which were declared in that case.

We cannot perceive any distinction between them in principle. They are, as already suggested, parallel. Whether the plaintiff have any and what remedy, we are not called upon here to decide. It rarely happens, however, that our laws are inadequate to furnish redress for wrongs done.

The judgment should be affirmed.

Davis, P. J., concurred.

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

Judgment affirmed.


text:
    JAMES C. JACOBS, Respondent, v. SYLVESTER J. MILLER Appellant.

      Injunction — damages occasioned by— Code, § 222.
    Where, in an action brought to procure an injunction, a temporary injunction is dissolved, and, subsequently, upon the trial, the complaint is dismissed, the successful party is entitled, under section 222 of the Code, to an order directing that the damages sustained by him shall be ascertained by a reference or otherwise, as the court may determine; and it is error for the court to deny a motion for a reference, without directing any other mode of ascertaining the damages, even though no damages would be allowed.
    Appeal from au order denying a motion of defendant for a reference, under section 222 of the Code, to ascertain the damages sustained by the defendant by reason of a temporary injunction procured by the plaintiff in this action.

      Thomas F. Wmtworth, for the appellant.

      Moody B. Smith, for the respondent.
   Brady, J.:

The plaintiff obtained a preliminary injunction, which was after-wards dissolved, and on appeal to the General Term the order of dissolution was sustained. The issue was, however, in due time brought to trial, and the complaint was dismissed, chiefly upon the ground urged by the defendant that the contract out of which the cause of action sprung was void, as against the policy of the law. In other words, the defendant having in his possession certain notes which the plaintiff had given him, and which the latter sought by injunction to prevent him from transferring or collecting, resisted the application for an injunction; and when the action was tried, ashed a dismissal of the complaint because the contract with which the notes were connected was void, and the plaintiff was, therefore, in no jeopardy and required no protection. There were other grounds, but this is one which was accepted by the justice presiding on the trial, and the complaint was dismissed. Under such circumstances, this does not seem to be a case in which any damages would be awarded, and the court at Special Term disposed of the motion for a reference to ascertain the defendant’s damages, under the provision in the undertaking given on obtaining the injunction, on that theory, by denying the motion. We are much inclined to follow that ruling, but we think the Code, by section 222, entitles an enjoined but successful party to some order stating the manner in which his damages shall be ascertained. JPa/rk v. Musgrame (13 N. T. Sup. Ct. R., 223), decided in this department, has so declared. The learned justice below refused to interfere and denied the motion. This did not carry out the provisions of the Code, which declare that the damages may be ascertained by a reference, or otherwise, as the court shall direct. The order made contained no direction, and, in effect, repudiated the right to an order determining the mode of ascertainment. We think the appellant was entitled, under the Code, to an order directing the manner in which his damages, if any, should be ascertained.

The order must, therefore, be reversed, but without costs.

Davis, P. J., and Daniels, J., concurred.

Order reversed, without costs.


author: Ready, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN GARVEY v. THE JUSTICES OF THE MARINE COURT OF THE CITY OF NEW YORK.

      Mmine com't of the city of New York — powm' of, to issue attachments — chap. 300 of 1831.
    Where an action has heen commenced in the Marine Court of the city of New York by the personal service of a summons upon a defendant, a non-resident of the county of New York but a resident of the county of Richmond, the court may, under chapter 300 of 1831, issue an attachment against his goods as a non-resident.
    Certiorari issued to the justices of the Marine Court, to review the action of that court in granting an attachment against the property of the relator in the city of New York, after suit brought and pending, commenced by service of summons upon the defendant, in which one Nugent was plaintiff and Garvey defendant, upon the ground that Garvey was a resident of Richmond county, and a nonresident of the city of New York.
    This action was on a contract for services rendered by plaintiff to defendant, and the amount for which judgment was asked was $478.59.

      George O. Genet, for the relator.

      M. B. Field, for the respondent.
   Ready, J.:

Assuming that the wilt of certiorari is the proper mode of procedure herein to accomplish the object the relator had in view, and considering the question of jurisdiction on its merits, the writ is unavailable. The Marine Court possesses the power of issuing attachments against non-residents of this county, and the source of its authority is shown by the able opinion of Justice MoAdam, rendered on the motion to discharge the attachment made at a Special Term of the Marine Court. The act of 1831, chapter 300, by section 33, declares that whenever, by the provisions of the thirtieth section, no warrant could issue, and “ the defendant shall reside out of the county, he shall be proceeded against by summons or attachment.” Section 47 of the act declared that the provisions of the act from the twenty-ninth section, inclusive, shall apply to executions, warrants and other process issued by the Marine Court.

The act of 1852, chapter 389, section 9, declared that in all cases in which the jurisdiction of the Marine Court was limited so that there could be no recovery therein for a larger amount than $100, to which it was limited by act of 1817, the jurisdiction was extended, so that in such actions the recovery of either party might be to the amount of $250.

In 1853, by chapter 617, a similar provision was enacted, enlarging the .jurisdiction to $500 (section 2), and it was held that these acts extended the power of that court to issue an attachment against the property of a non-resident, when the amount claimed did not exceed $500. (Churchill v. Marsh, 4 E. D. Smith, 369.) This

question was discussed in that case elaborately, and the result stated arrived at and adopted. The action had been commenced by attachment under the provisions of the act of 1831 isv/prd) against the defendant as a non-resident, and the proceeding was declared to be lawful and effective. There has been no legislation since restricting the jurisdiction thus employed, as.we learn by examination of the acts of 1872 and 1875 relating to the Marine Court. The effect of their operation seems to be to increase it.

The act of 1872 (chapter 629) enlarging the jurisdiction of the court, declared by section 1, that it should continue to be vested with the jurisdiction “now conferred upon it by law,” except as otherwise prescribed, declared and enlarged by the act. The sixth section provided that in all cases where a warrant was then allowed by statute to issue from out of that court, for the arrest of a person, an order of arrest might be granted, to be applied for in the action, and for like causes, and in like manner as then required by the provisions of the Code of Procedure; and further, that an attachment against property might issue in an action in that court for like causes, and in the manner and with the like effect as allowed and prescribed by the provisional remedy of the Code of Procedure, “ and for causes allowed by existing law in said Marine Court."

The existing law, as we have seen, was contained in provisions of sections 33 and 47 of the act of 1831 (supra), and which authorized that court, where the fact would not empower it to issue a warrant to proceed by attachment, if the defendant should reside out of the county, and the effect of the provisions of that sixth section was therefore to enlarge the jurisdiction, so that in cases where the defendant lived in the county he could be proceeded against, if the plaintiff could present a case contemplated by the Code.

The subsequent act of 1875 (chapter 479) recognizes, by section 1? the jurisdiction of the court. It declares that such jurisdiction is extended in all causes of action of which the court has then jurisdiction, so as to comprehend recoveries in all such actions wherein the sum of money or value of the thing recovered shall not exceed $2,000. It also recognizes the power of the comt to issue attachments against non-residents of the county, by section 41, which begins as follows: “ In all cases of non-residents of the county against whose property attachments have been issued,” etc., “the right to issue attachments as original process, does not appear to have been interfered with, therefore, and continues to the present time. The apparent inconsistency of allowing an attachment in that court against a debtor, because he is non-resident of the county, when it could not be had in this comt, may be a matter for legislative interference, but it arises from the necessity which prompted the gift of jurisdiction by the act of 1831 to the Marine Court, in order to secure the property of a non-resident debtor without resort to the more expensive proceedings of an action in a court of record, and the omission in subsequent legislation of limiting the powers to the cases for which it was designed and to which it was originally limited.

By enlarging the jurisdiction as to amount, and without diminishing it in any respect, the legislature left existing laws intact, and preserved the process of attachment.

For these reasons the writ is dismissed.

Davis, P. J., concurred.

Present — Davis, P. j., Beady and Daniels, JJ.

"Writ dismissed.