author: Davis, P. J.:

text:
    JOHN W. KULL and Others, Respondents, v. CHRISTIAN FRIEDRICH KULL and Others, Appellants, Impleaded, etc.

      Aliens — right to take lands hy descent under treaties made with the United States — ■ a treaty overrules all local statutes contravening it.

    A treaty between the United States and Wurtemburg provides that when, on the death of any person holding real property within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years within which to sell the same, which term may be reasonably prolonged according to circumstances and to withdraw the proceeds thereof without molestation and exempt from all duties of detraction.

      Seld, that the treaty intended to confer on the alien heir, for the period of two years, precisely the same rights he would enjoy if he were a resident heir, imposing upon him simply the obligation to sell and convey the fee to some other party capable of holding it within that period or such other period as the State or country should see fit to confer upon him hy prolonging the time, or to become, or declare his intention of becoming, a citizen of this country.
    That meanwhile he might possess and take care of the property, improve it and exercise all the authority of ownership, for the purpose of making it more productive and valuable, and might himself enjoy such rents and profits as he could obtain therefrom.
    That the treaty is, by virtue of the Constitution of the United States, a part of the supreme law of the land, and supersedes all local statutes that contravene its provisions.
    Appeal from so much of the interlocutory judgment of the Special Term as confirmed the report of the referee declaring the rights, shares and interests of the parties to this action, which was brought to partition certain lands situated in this State.

      Charles Ooepp, for the appellants.

      O. S. ItudoVph, for the respondents.
   Davis, P. J.:

William Null, a resident of New York and a naturalized citizen* died intestate on the 9th of March, 1883. He left him surviving his widow Maria E. D. Null, but no children or father or mother. He had four brothers, namely, John, Christian Friedrich, Heinrich and Johannes; and one sister. Of these, his sister and two brothers-Christian E. and Johannes survived him. John died July 30, 1878, and Heinrich in 1874. John left five children, to wit, John W. Null, the plaintiff, and William F. Hull, Frederick C. Null,. Henry GL Null and Caroline M. Hansen, who are defendants and respondents in this action. Heinrich left two children, Bertha and Ernst, who with Christian Friedrich and Johannes Hull and Christina Catherine Seifried, are appellants. The respondents are citizens of New Jersey. The appellants are all aliens and subjects of the kingdom of Wurtemburg. These aliens have never taken the steps required by the statute of this State to entitle them to inherit thereunder. The treaty between the United States and Wurtemburg provides that when, on the death of any person holding real property within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged according to circumstances, and to withdraw the proceeds thereof without molestation, and exempt from all duties of detraction. The contentions on the part of- the appellants are,

First. That the several appellants take as heirs of the intestate under the law as modified by the statutes of this State, and as such heirs are entitled to hold the property in fee subject only to the rights of the State by the exercise of inquest of office found; which rights are now they claim disposed of by the default of the State (who is a party to this action) to assert any claim whatever.

Second. That by virtue of the treaty between the United States and 'Wurtemburg the appellants take title to the lands, subject only •to the obligation imposed by the treaty, to sell and convey the same within two years or within such prolonged time as might be accorded to them.

To sustain the first of these contentions, a very elaborate and able argument was presented by the learned counsel for the appellants. JBut we do not think it necessary to pass upon that question because, in our view, a correct construction of the treaty is equivalent in its effect to a determination of that contention in favor of the appellants. The treaty, by virtue of the Constitution of the United States, is a part of the supreme law of the land, and pro hao vice, it supersedes all local statutes that contravene its provisions. We think the manifest intention of the treaty is to put the alien persons described therein, in respect to the rights it secures to them, precisely upon the same footing as citizens of the State or subjects of the kingdom in which the question arises. The case is one beyond all doubt within the provisions of the treaty and affected by it, and the appellants are within the description of the persons mentioned in the treaty to whom the land would descend, were they not disqualified by alienage. An absolute power to sell property that would have descended to them, within the prescribed time, and to withdraw the proceeds thereof, is given by the treaty. This power is to sell the fee or whatever descendible interest or property there may be, and receive and enjoy as absolute owner the proceeds of the sale. The revisors of our statutes (3 ft. S. [2d eel.], 589) say: In reason and good sense there is no distinction between the absolute power of disposition and the absolute ownership, * * * it is an affront w common sense to say that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure.” And they framed a law which was enacted by the legislature, providing that when the grantee of a power is authorized by the power to dispose of the entire fee of the land for his own benefit, he is entitled to an absolute fee. (1 ft. S. [1st ed.], 732, §§ 81, 82, 83, 84.) In principle it is difficult to see why any distinction should be made between the effect of such a power given by law or by will or deed. The “affront to common sense ” is equally apparent in either case if the possessor of the power may sell when he chooses and dispose of the proceeds as he pleases.

It is urged by tbe respondent that the fee vests in the resident heirs until the exercise of the power of sale. But what becomes •of the fee in case there be no resident heirs, but all the heirs of the •decedent are non-resident aliens within the description of the treaty ? The fee is not in the ' State for it takes no title until office found. It is not m nubibus, for the law vests it somewhere pending the act •of sale. It must be held, we think, that the fee vests in the nonresident alien, the land being descendible, as prescribed by the treaty. We think there is no reason to doubt but that under the provisions •of the treaty the alien heir may come to the State and at once •enter into the possession, use and enjoyment of the property, .and exercise all the rights of ownership and advantages of possession for the purpose of making the sale, because those rights ■are manifestly intended by the treaty to be conferred upon him. In short, in our judgment the treaty intends to confer on the alien heir, for the period of two years, precisely the same rights he would enjoy if he were a resident heir, imposing upon him simply the •obligation to sell and convey the fee to some other party capable of holding within that period, or such other period as the State or •country shall see fit to confer upon him by prolonging the time, or by his becoming, or declaring his intention to become a citizen. Meanwhile, he may possess and take care of the property, improve it and exercise all the authority of owner, for the purpose of making it more productive and valuable, and may himself enjoy such rents and profits as he can obtain. The spirit of the treaty cannot be fully carried out without this construction, for the right to sell may, ■and often would be greatly embarrassed by a hostile possession of the property by resident heirs, or by its misuse on their part to the prejudice of the alien heirs. All the rights of the State are suspended by the treaty for the full period .of two years, and all the rights of other heirs over the property are also suspended by the operation of the treaty. The effect of this construction is necessarily to vest the alien heirs with title to their respective proportions -of the rents and income of the property, in whosesoever hands it may come. The questions involved in this case are extremely interesting and ought to be determined by the court of last resort.

We are furnished with a manuscript opinion in the case of Bollerman v. Blake, in the Court of Appeals, not reported in full. (94 N. Y., 624.) But in that case a majority of the judges concurred only in the conclusion of the opinion. It cannot, therefore, be said to be authoritative upon all the points discussed in the opinion. Ajstdiihws, J., concurred in that case on the ground that the alien heirs took a fee determinable by non-exercise of the power of sale within two years. This rests upon what we think to be the true construction of the treaty, and much of the opinion pronounced by Earl, J., is quite consistent with this view, although portions of it seem to be in conflict with it. We are at liberty, however, notwithstanding that case, to construe the treaty in accordance with our own views. The result is that the judgment must be reversed, so far as appealed from, and the case remanded to the Special Term and referee to proceed and determine the rights of the appellants in the property and the rents and profits thereof in conformity to this opinion.

Since writing this opinion our attention is called to the case of Maynard v. Maynard (36 Hun, 227). That case, if applicable to-the questions involved in this, would require the same disposition as the judgment in this case.

Brady and Daniels, JJ., concurred.

Judgment reversed and case remanded to Special Term as directed in opinion.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    HENRY C. ANDREWS, as Receiver, etc., Appellant, v. GEORGE H. MOLLER and Others, Respondents.

      Action for money had and received — when the payment of the money to the plaintiff, or by his authority, must he alleged and proved by the defendant.

    This action was brought by the receiver of a limited corporation to recover the ten per cent cash payments required by law to be made by the subscribers to the stock of the corporation at the time of their subscribing therefor. It was claimed that these amounts had been received by the defendants, as commissioners, licensed by the secretary of state, under section 4 of chapter 611 of 1875. The complaint alleged facts showing the receipt of such moneys by the defendants, and that they had failed to pay it over, and then added that the defendants had refused to pay it over and had converted it to their own use. Upon the trial the complaint was dismissed upon the ground that the plaintiff had failed to prove that the defendants had failed to pay over the money to the corporation.

      Held, that this was error; that it was only necessary for the plaintiff to show that money belonging to the company had passed into the possession of the defendants for its benefit, and any payment of such money to or under its authority must be alleged and proved by the defendants.
    Appeal from a judgment, recovered on tbe dismissal of the complaint at the circuit.

      John Brooks Leavitt, for the appellant.

      Leopold Wallaeh and J. Homer Hildrith, for the respondents.
   Daniels, J.:

The appointment of the plaintiff as receiver was legally proved by the order made for that purpose, and the bond given and filed by him entitling him to act in that capacity. (Potter v. Merchants' Bank, etc., 28 N. Y., 641; Whittlesey v. Frantz, 74 id., 456.) He claimed to recover from the defendants ’the amount received by them by way of subscriptions to the capital stock of the Rockaway Jockey Club,' limited, a corporation formed and existing under chapter 611 of the Laws of 1875. By section 4 of this act the secretary of state was empowered to issue a license to the persons making the certificate of incorpoi’ation, empowering them as commissioners to open books for subscriptions to the capital stock of the corporation. But they were prohibited by section 5 of the same act from taking subscriptions, unless the person or persons making them at the same time paid to them ten per cent in cash of the par value of the stock for which he or they subscribed. This license was issued by the secretary of state to the commissioners, and they acted under it and received subscriptions for the capital stock of the company, upon which' they were paid the requisite ten per cent mentioned in the statute. There was subscribed for in this manner 1,525 shares of the capital stock of the corporation, which by section 11 of the act could not be issued for a less sum than twenty-five dollars nor more than $100 for each share. The' shares were in fact made for the sum of $100 each, and ten per cent upon this number of shares of the par value of $100 each was in this manner shown to have been received by the defendants as such commissioners.

At tbe close of tbe evidence proving these facts an application was made for tbe dismissal of tbe complaint, and a direction to that effect was given by tbe court. Tbis direction seems to have proceeded upon tbe conclusion that tbe plaintiff could not recover in tbe action without making proof of tbe defendants’ failure to pay over to the corporation tbe money which bad been received by them as commissioners.

Tbe complaint alleged that they bad failed to pay over tbe money, and then added as a further allegation that tbe defendants bad refused to pay it over and bad converted it to their own use. But no claim was made at tbe trial to maintain the action against them upon these latter grounds, or because of any positive misconduct in tbe disposition of tbe money on their part. Tbe plaintiff relied for bis right to recover in the action wholly upon the facts that the defendants, as commissioners under tbis act, bad received tbis sum of money which they were undoubtedly liable to pay to tbe corporation or tbe receiver, who bad succeeded to all its rights of action. The case as tbe proof presented it, and it was all admissible under tbe complaint, was merely one for money bad and received by tbe commissioners to the use of tbe corporation, and to maintain it all that tbe law required was that it should be proved that tbis sum of money bad passed into their possession for tbe use and benefit of tbe corporation, and that was clearly proven by tbe evidence given upon tbe trial. If they bad paid over the money, or otherwise disposed of it under the authority of the corporation, that was a matter of fact for them to establish. The proof of the fact was admissible in their behalf so far as they bad alleged that payment had been made. It was an affirmative fact resting upon them, tbe proof of which, if it existed, must have been peculiarly within their power, and under tbe rules of pleading tbe plaintiff was not bound to anticipate its effect by first making proof that tbe money bad not been paid or properly accounted for. A complete cause of action to tbis effect was included within tbe allegations of tbe complaint and tbe proof given upon tbe trial, and neither was weakened by tbe further and needless allegation that tbe defendants bad converted tbe money to their own use and bad refused to pay it over. |These allegations, as tbe complaint was framed, were needless and secured no advantage either to the plaintiff or tbe defendants in tbe .general form wbicb bad been given to tbe action. It is only where the charge made in the complaint is one of criminal neglect of duty, or of fraud, or of the wrongful violation of the rights of the plaintiff, or the party represented, that negative proof has been required to be given. (People v. Pease, 27 N. Y., 45, 74.) No such charge formed the foundation to the plaintiff’s right to recover in this •action. It was dependent upon the fact of the defendants having received the money and omitting to pay it over; and to sustain the right of the plaintiff to recover it was not requisite that this negative should first be proved to have been properly charged as a part •of the complaint. But it was for the defendants, if they had relieved themselves of liability for the money after it passed into their hands, to mate proof of that fact by way of establishing .their own defense. (Everett v. Lockwood, 8 Hun, 356; Tugman v. National Steamship Co., 76 N. Y., 207, 210, 211; Segelken v. Meyer, 94 id., 473, 484.)

The direction for the dismissal of the complaint should not under the circumstances appearing upon the trial have been given, and the judgment should be reversed and a new trial ordered, with costs -to abide the event.

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

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


text:
    FRANCIS O’CALLAGHAN, Appellant, v. JOHN FRASER, Defendant, and ABRAM KLING, Receiver, Respondents.

      JReceiver — an order appointing him has no extra tee'ritonal effect — right of the debtor to confess judgment, under which a foreign creditor takes the debtor's property from, the reaevoer— contempt of court by the debtor — computation of the

    ■One Kling was appointed, in the State of New York, the receiver of the assets of a firm, consisting of the plaintiff O’Callaghan, and the defendant Fraser, who were engaged in the leather business at New York and Philadelphia. The receiver took possession of the firm property in New York, and went to Philadelphia where O’Callaghan delivered to him the firm property in that city. Subsequently, O’Oallaghan, claiming to have become suspicious that an intention existed to sacrifice the property by a hurried sale, without proper notice, confessed judgments for debts due to certain Philadelphia firm, creditors, who, according to the practice of Pennsylvania, issued executions-thereon, under which the property was taken from the receiver. The validity of the debts for which the judgments were confessed was in dispute,- being affirmed by O’Callaghan and denied by Fraser.
    Opon the application of the receiver the court below adjudged O’Callaghan to-have been guilty of a contempt, in interfering with the property in the hands of the receiver in violation of the injunction in the order appointing the receiver, and imposed upon him a fine equal to the value of the property levied upon less what it would have cost the receiver to sell it. The court, did not pass upon the validity of the debts alleged to be due to the Philadelphia, creditors.

      Held, that the order appointing the receiver had no extra territorial effect and did not confer upon him authority to go into a foreign jurisdiction and there-take possession of the property.
    That although the delivery of the property to him by O’Oallaghan was lawful and . valid, as between him and the receiver, it had no effect upon the rights of the Philadelphia creditors.
    That the mere confession of judgment by O’Callaghan, for an actual bona fide-indebtedness upon which an attachment might have issued upon the application of the creditors, did not subject hifS. to punishment as for a contempt in violating the injunction, although he intended thereby to give the creditors of the firm in Philadelphia an opportunity to enforce their superior legal rights-against the firm property in that State.
    That it would be otherwise were judgments confessed against the firm in cases-in which no debts in fact existed.
    That in any event the validity of the alleged debts should have been passed upon by the court, as, if valid, their extinguishment would be a circumstance tending to diminish the amount of the damages.
    Appeal from an order of the Special Term in a proceeding by Abram Kling, Esq., receiver of the partnership property of the plaintiff and defendant in this action, to punish the plaintiff for contempt in improperly interfering with such property, adjudging said plaintiff to be in contempt and imposing upon him the fine of $23,042.20 for damages, costs and expenses sustained by said receiver and the defendant John Eraser.

      Wm. McMiohael, for the appellant.

      B. S. Bcmsom, for the respondents.
   Davis, P. J.:

Francis O’Callaghan, the plaintiff in the action and appellant in this proceeding, commenced his action in this court for a dissolution ■of the firm of O’Callaghan & Fraser, and praying for che appointment of a receiver of the assets and property of said firm. The respondent Abram Kling was afterwards by an order of the Special 'Term appointed such receiver and duly qualified as required in such order. In the order making such appointment it was further provided that the plaintiff Francis O’Callaghan and the defendant John Fraser be, and they were thereby enjoined and restrained from making any disposition of and interfering with any of the assets or property of such copartnership. The firm of O’Callaghan & Fraser were engaged in the leather business at 90 Chambers street in the ■city of New York, and in the same business at 458 and 460 North Third street in the city of Philadelphia. The receiver took possession of the property, books and papers of the firm in the city of New York and afterwards went to Philadelphia for the purpose ■of taking possession of the property of the firm in that city, and the plaintiff O’Callaghan formally delivered possession to the receiver ■of such property in that city. After the delivery of the property to the receiver, who put his agents in possession, steps were taken for a sale of the same at auction, and while such steps were being taken by and on behalf of the receiver, O’Callaghan became suspicious, as he says, that an intention existed to sacrifice the property by a hurried sale without proper notice; and for the purpose of preventing the sale he notified certain Philadelphia creditors to whom he had given, or then gave judgment notes for debts which he swears were bona fide and actually owing to a very considerable .amount, and upon which, and as would seem according to the practice of that state, judgments were duly entered up and executions issued to the sheriff and the property levied upon and taken out of the possession of the receiver. There is a direct conflict in the affidavits between O’Callaghan and Fraser as to the lona fides of the indebtedness for which the judgment notes were given, Fraser swearing, in substance, that the debts had no existence but were wholly fictitious, and O’Callaghan swearing that they were bona Jide debts actually owing by the firm to Philadelphia creditors.

J. M. Moyer, the attorney who entered up the judgments in favor of the Pennsylvania creditors, swears, in substance, that he was the attorney for three of the judgment creditors, and that when he was informed that proceedings had been instituted in the Supreme Court of New York for the appointment of a receiver be called on O’Oallagban for a settlement of the account, and insisted on a confession of judgment in favor of his clients for the amounts due to' them; that O’Callaghan refused to give such confession for the reason that proceedings were pending between him and his partner' in New York and that it might complicate such proceedings; that deponent then threatened to sue out writs of attachment in each case, as provided by the laws of Pennsylvania, and declared that he would not allow the firm property to be taken out of that State into a foreign jurisdiction; that O’Callaghan being thus pressed by him signed the judgment notes; that •' O’ Callaghan stated to him. that the firm was indebted to him (O’Callaghan), as administrator of the estate of John Dinsmore, deceased, in the.sum of $3,417,. money belonging to said estate, and that he would not give judgments to others without providing for said estate, and that thereupon Moyer, the attorney, suggested that a judgment note be also given for the amount due said estate, and thereupon a judgment note was. given for such amount; that upon entering up the judgments writs of fi. fa. or execution wei’e placed in the hands of the sheriff, to be levied upon the goods and property that had been delivered to the receiver, who took the same into his possession; that afterwards, when the receiver was in Philadelphia, the attorney proposed to-him that if he would procure his appointment by the courts of Philadelphia that the estate of O’Callaghan and Eraser should be sold and administered by the receiver, subject to the rights and liens acquired by virtue of the executions; that said proposition was favorably received by said receiver and referred by him to his attorney, one George "Walter Smith, who also acquiesced in the proposition and prepared a petition to the Common Pleas of Philadelphia for said appointment; that said petition was drafted bjr Smith and submitted to the receiver for his approval, and the same was approved by him, but, in substance, that nothing further had been done.

Upon the hearing of the motioii in the contempt proceedings a reference was made to a referee before whom a hearing would seem to have been had and much testimony taken, but no part of the testimony is contained in the papers on this appeal. The referee, reported to the effect that the property in Philadelphia belonged te the firm wbo were doing business there ; that O’Callaghan was in actual possession and had full control and authority over the property and transferred and delivered the same to Kling, as receiver; that the receiver on the 2d of August, 1884, received and took the actual possession and custody of said goods, and continued to hold "and.have-the same in his possession and custody up to the 7th day of August, 1884; that O’Callaghan, after he had transferred and delivered said goods, caused 'such proceedings to be taken and had in the courts of the State of Pennsylvania, and certain process to be issued out of said courts to the sheriff of the city of Philadelphia, under and by virtue of which said sheriff was directed and required to seize and take from and out of the possession and‘custody of said Abram Kling, as such receiver as aforesaid, said goods so as aforesaid transferred and delivered to said Kling, as such receiver, by said Francis O’Callaghan, on-said 2d day of August, 1884; that on the 7th of August, 1884, the sheriff levied and took possession of the goods, and has ever since deprived the receiver of the possession and custody of the same, and the same are now in the possession and custody of the sheriff under and by virtue of the process issued to him out of the courts of Pennsylvania; that the goods were at the time of the value of $25,000; that the costs and expenses of said receiver of selling and converting the goods into money would have been $2,500; that the actual loss and injury produced to the defendant John Fraser, and to Abram Kling, as said receiver, by the acts of said Francis O’Callaghan, amounted to $22,500 ; and that the costs and expenses of the proceedings in contempt and of the reference amounted to $542.20. Upon this state of facts the court confirmed the report (to which no exceptions appear to have been taken), with costs, and afterwards by order directed .that the plaintiff O’Callaghan within five days pay over to the receiver the sum of $28,042.20 for the damages, costs and expenses sustained by the receiver and said defendant. This appeal is from those orders.

The order appointing the receiver had no extra territorial effect and did not confer upon him authority to go into a foreign jurisdiction and take possession of the property by virtue of such order. (Hibernia Bank v. Mechanics' Bank, 21 Hun, 167; Green v. Van Buskirk, 7 Wall., 139; Hervey v. R. I. Locomotive Works, 93 U. S., 664; Simpkins v. Gold Co , 50 How. Pr., 56.) The receiver could not,-therefore, have taken possession of the property of the firm in the State of Pennsylvania by virtue of the order and hold the same as against the claims of the Pennsylvania creditors. But it appears without dispute that the plaintiff O’Callaghan delivered the property into the possession of the receiver voluntarily for the purpose of having the same applied as assets of the firm to the benefit of its creditors. This act, we think, was lawful and valid as between him and the receiver, and under it the receiver was entitled to take and hold possession of the property as against the plaintiff who had thus voluntarily put the same into his possession. But that act could have no conclusive force upon the question of the rights of the Pennsylvania creditors. They would, we think, still have the right to attach the property and hold the same, notwithstanding the receiver’s possession, so long as it remained within the jurisdiction of the courts of that State, and a levy thereon upon execution issued upon a valid judgment by such courts would give a superior lien to any possessed by the receiver under the order of appointment here, and the delivery of possession by O’Oallaghan. The confession of a judgment in the form authorized by the laws of Pennsylvania in favor of any creditor of the firm for a bona fide indebtedness of the firm, would not in our judgment be a contempt of the courts of this State, although the express object of O’Callaghan might be to confer on the creditor the power to issue an execution to seize the goods in the receiver’s hands. Certainly, if the Pennyslvania creditors of the firm could have sued out attachments against the firm and seized the goods thereon and held them, despite the receiver’s claim, their rights cannot be impaired by the fact that .a confession of judgment has given them a speedier and a less expensive remedy by levy under execution. "We are of opinion that the mere confession of judgment by the debtor for an actual indebtedness upon which such an attachment might have issued does not subject him to punishment for contempt in violating the injunction, although his intention was thereby to give the creditors of the firm in Pennsylvania an opportunity to enforce their superior legal rights against the firm property in that State. The injunction restrained him absolutely frorn disposing of or meddling with any property of the firm within the jurisdiction of our court. To such property the receiver took title immediately upon His qualifying by operation of His order of appointment. But He took no sucH unqualified title to property of tlie firm outside of •our jurisdiction, for the order could Have no such extra territorial •effect, and consequently the injunction of the order cannot legally be claimed to Hare extended to it. The delivery of possession to the receiver as such by the plaintiff.of the property in Pennsylvania was sufficient to confer on the receiver all the rights O’Callaghan had in such property. But it could not impair or embarrass the rights of the Pennsylvania creditors, if they were exercised at any time before the actual disposition of the property •or its transfer to the territorial jurisdiction of our courts. This •court cannot, therefore, treat the lawful act of any creditor in Pennsylvania, in seizing the goods by virtue of any legal process, •although instigated and caused by the act of the debtor, as a contempt; because the seizure of the property and its removal by ■creditors cannot be said to be a deprivation of any legal right possessed by the receiver. The violent or forcible taking of possession of the property, by the debtor himself after such delivery, for the purpose of depriving the receiver of it might with propriety be regarded as a violation of the receiver’s rights. But it is a different thing when with or without his co-operation the Pennsylvania •creditors step in to exercise a superior legal right which they possess under the laws of the state, while the property remains within that jui’isdiction.

, The question of contempt, therefore, must depend, we think, upon ■the question whether or not the judgments confessed upon which the executions issued were for an actual or a fictitious and fabricated indebtedness of the firm. If the debtor, with a view to prevent the receiver from exercising the rights with which he had himself clothed him over the property in Philadelphia, perpetrated the alleged fraud by confessing judgments in the name of the firm, where no debts in fact existed, so that in law and equity the fictitious creditors had no rights which courts either there or here, ai’e bound to or would respect, then we are of opinion that his act would be of a character which the courts of this State would treat as an interference with the rights of the receiver and a violation of the injunction. On this question the referee has not passed at all, and the affidavits are in direct conflict, the one partner swearing that tüe debts were bona fide and actually owing to the Philadelphia creditors, and the other swearing that such debts had no existence-against the firm. The testimony of the attorney, by whom the judgments were entered up, tends to corroborate the affidavit of O’Callaghan.

The court below does not seem to have regarded this question as-of any importance, but held, as appears from the opinion of the learned judge, that the fact that O’Callaghan, by confessing the-judgments, helped the creditors to seize the goods on execution, is sufficient to charge him in this proceeding for contempt,- with the-full value of such goods as the amount of injury sustained by the receiver and the other member of the firm, notwithstanding such goods were applied to the payment of debts, which, if valid, had a superior claim against the goods. We think the court should have proceeded to inquire, by reference or otherwise, and determine whether or not the judgments so confessed were fraudulent and unfounded.

■ But assuming that the act of O’Oaliaghan, in confessing the-judgments, was a contempt of the court punishable by a fine, the-question of the bonafides of the indebtedness would also, we think, be important for the purpose of ascertaining the damages sustained-by the receiver and the copartner, because if the goods were seized upon lawful process by bona fide creditors, their application to-extinguish the debts of such creditors whose rights as citizens of Philadelphia, where the property was located, would be superior to-those of the receiver would be a circumstance tending to diminish the damages, if any, sustained. The application would pay debts,, and having that effect it certainly would not follow, as a matter of course, that one member of the firm should be fined to the full extent of the whole property seized in case it were applied in payment of an actual firm indebtedness. For these reasons, also, the-question of the bonafides of the debts for which the judgments were-confessed is an important and material one to be determined.

We think the order must be reversed and case remanded to the referee for further hearing. ,

Beady and JDaitiels, JJ., concurred.

Order reversed and case remanded to referee for further hearing,, cost of appeal to abide event.


author: Ready, J.:

text:
    WILLIAM MOORE, Appellant, v. GEORGE HILLABRAND and ANDREW F. DYKES, Respondents.

      Shipment of goods on a del credere commission — the title to the unpaid pwchase-money,for goods sold by the factor, remains in the shipper.

    In an action, brought by one Zoller against the firm of Groht & McLaren, claims due to the firm from two companies, and the sum of eighty-two dollars and ■ twenty-five cents deposited in a bank to its credit, were attached. The claims were due to, and the money was received by, the firm upon the sale of goods shipped to it by the plaintiff to be sold on a del credere commission.
    In this action, brought by the plaintiff against the sheriff to recover the amount received by him under the attachment:

      .Held, that the facts showed that the legal title to the claims and money was in the plaintiff and that he was entitled to recover.
    Appeal from a judgment in favor of tbe defendants, entered upon tbe dismissal of tbe complaint.

      John, E Eustis, for tbe appellant.

      J. Geo. Flammer, for tbe respondents.
   Ready, J.:

Tbis action was brought against tbe sheriff of this county tO’ recover tbe sum of $326.50 received by him under an attachment in a suit in which Jacob Zoller was plaintiff and tbe firm of Groht & McLaren were defendants. After a demand for payment had been made upon tbe sheriff, Zoller caused an indemnity bond to be given to him by tbe defendants in tbis action, who were thereupon substituted as defendants herein.

It appears that tbe plaintiff was a shipper of butter and cheese to the firm of Groht & McLaren, commission merchants, and claimed to be selling under a del credere commission, and when the attachment was issued the Old Colony Steamboat Company and the Norwich Transportation Company were indebted for some of the goods thus consigned to the firm mentioned. The sheriff under the attachment collected the claims and attached the bank account of the firm, receiving therefrom the sum of eighty-two' dollars and twenty-five cents which had just been deposited there by them, and which sum was the proceeds also from the sale of some of tbe plaintiff’s goods. Tbe complaint was dismissed upon tbe ground tliat tbe action was brought for conversion, obliging tbe plaintiff in order to maintain it to show that tbe moneys belonged to him and were wrongfully taken from him by tbe sheriff.

In the case of Wallace v. Castle (14 Hun, 106) it was held that tbe fiduciary relation existing between a factor and bis consignor is not destroyed even if tbe factor is acting under a del credere commission ; and that in such a case when he was paid by the debtor the money so received was the money of the consignor and not of the factor, and for a conversion thereof tbe latter was liable to arrest. In expressing tbe opinion of the court at Special Term in that case and which was sustained at tbe General Term, tbe learned justice referred to the case of Ostell v. Brough (24 How. Pr., 274), in which it was held that if tbe factor actually received tbe proceeds of the sale he was liable to arrest for a failure to pay it over even when he received a del credere commission. The learned justice refers to the fact that that case was cited with approval in the German Bank v. Edwards (53 N. Y., 541) and Duguid v. Edwards (50 Barb., 288) in which the point was directly involved. And it was also declared that when the relation of principal and factor was made out, the burden was upon tbe latter, if be desired to relieve himself from his ordinary responsibility to show some special agreement or some course of dealing inconsistent with the strict relation. And tbe court, when the case was disposed of at the General Term, declared that the relation of factor continued with all its obligations and burdens, and that the money received by the factor was the plaintiff’s money and not the factor’s. The identical money received was therefore the property of the plaintiff.

And this doctrine was also expressed in the case of the Converseville Company v. The Chambersburg Woolen Company et al. (reported in the same volume of Hun, at page 609). It was there decided that where goods are consigned to a firm to be sold upon a del credere commission and the firm makes a general assignment for the benefit of its creditors, the consignors are respectively entitled to all the proceeds of the goods so consigned which come into the hands of the assignee. And it was said that the factor’s contract of guarantee was a cumulative security to his principal; it worked no other change in the legal relations existing between them.

Where property is consigned upon an agreement for advances, and the advance is made, it gives tbe factor a vested interest in the goods for his protection, and as security for his advances and charges and interest which would enable him to hold the goods against third parties or the consignor himself, but only so far as would be necessary for his protection and security, and his title is therefore a qualified one. He has the same interest in the proceeds of the sales that he has in the property sold, a special interest to the extent of the advances. As guarantor under a del credere commission he would have no exclusive right to collect the proceeds of the sales; the consignor might collect them. (Merrill v. Thomas, 7 Daly, 393, and cases cited; Sherwood v. Stone, 14 N. Y., 267, 270.)

There seems to be no doubt therefore, upon these authorities, that in regard to the bills which were due and unpaid for the goods consigned by the plaintiff and sold by the firm, the plaintiff was not divested of his title and that they could not be seized under an attachment by a creditor of the firm. There was no proof of any advance, and their interest, if any (which was not proved upon the trial of this case), was the extent of their commissions and charges. The money which was deposited in the bank is not shown to have been mingled with any other money. It is true it is proved that it was deposited in their general account; but whether the account contained anything more than that does not appear upon the record, But under the authority of the case of the Converseville Company v. The Chambersburg Woolen Company et al. (supra) it would make no difference, because the amount was easily ascertainable from the testimony given. Walter v. Bennett (16 N. Y., 250) is not in conflict with any of the views herein expressed. That was a controversy between principal and agent, and the question involved was whether an action would lie to recover the possession of personal property when it appeared that the defendant had parted from the possession of it before the commencement of the action.

JoHNsoN, J., said: The complaint states two causes of action, each of which is a claim to recover personal property with damages for its wrongful detention. Upon the trial the plaintiff endeavored to make out a wrongful' conversion by his agent of a draft or bill of exchange, and was held by the judge who tried the cause to have failed in so doing. The defendant was the agent of the plaintiff to make the sale and collect the proceeds, and when he received from the purchaser a bank draft, payable to his own order, he was not acting in violation of his duty in reducing it into money or having it passed to his own credit in bank. Undoubtedly the plaintiff might have demanded the draft of him upon his receipt of it, .and would have been entitled to the specific delivery of it so long as it remained in the defendant’s possession; but in the absence of ■such demand the defendant might lawfully dispose of it in the •ordinary course of business.

In Greentree v. Rosenstock (61 N. Y., 583), the question considered affecting the case in hand was whether the complaint was one in tort or on contract. And it was held the allegations were sufficient to sustain the proposition that it was an action upon contract, .and the statement of a conversion was an erroneous legal conclusion from the facts averred charging no possible crime to the defendant. The action was between principal and agent.

The case of Sutton v. De Camp (4 Abb. Pr. [N. S.], 483) did not involve the ppint considered herein. That was a motion to vacate an order of arrest which had been granted against the defendant as an auctioneer, upon the ground that a fiduciary relation existed between him and the plaintiff, the defendant acting under a guarantee or del credere commission. The court stated in that case that when a guarantee was given such as mentioned, the auctioneer became a surety, but that a fiduciary character did not exist, if at all, until the receipt of the moneys which he had obligated himself to pay. In that case he had not received the moneys for the goods sold by him.

In the case of Kip v. Bank of New York (10 Johns., 63) it was declared that property held in trust did not pass under a bankrupt commission, and if the property held in trust remained in specie or in goods or in notes or other choses in action, the cestui que trust was entitled to the property and not the general creditors of the bankrupt or insolvent; and farther, that though the trust property was converted into money, yet if kept separate and distinct, so that it could be traced and distinguished from the general mass of the insolvent’s estate, it would go to the cestui que trust.

The conclusion arrived at, upon an examination of these authorities, is that upon the case, as spread upon the record, the plaintiff ■was entitled to recover. Tbe debts which had been contracted upon the sale of his property by his factor, which were not paid, were •collectible by him and were his property and the money deposited in the bank was easily traceable. Indeed, it was not shown to have been mingled with any of the factor’s own funds therein, and therefore was not subject to the demands of other creditors.

For these reasons the judgment must be reversed and a new trial •ordered, with costs to abide the event.

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

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


author: Beady, J.:

text:
    AUGUST C. NANZ, Appellant, v. JESSE OAKLEY, Respondent.

      One principal on a bond cannot me a surety thereon, to recover for a breach of the bond by his co-principal.

    Letters of administration upon tie estate of one Shultz were granted to Rachel Depew, the only heir-at-law and next of kin of the deceased, and one Winant. The estate was managed by Winant alone. In proceedings to compel him to account instituted before the surrogate, by Rachel Depew and continued by her administrator, a decree was entered directing Winant to pay to the administrator of Rachel the amount thereby.found to be due. Winant baying failed to pay this amount the claim was assigned to the plaintiff, who brought this action against the defendant, tbe only surviving surety upon the official bond conditioned for the faithful execution of the trust reposed in tbe said Rachel Depew and the said Winant, given when the letters were issued to Winant and Rachel.

      Meld, that the action was, in effect, one brought by a principal to a bond against his own surety thereon to recover damages for the wrongful acts of his co-principal.
    That the negligence of the plaintiff assignor enabled the co-principal to commit the wrongful acts, and that this action could not be maintained.
    Appeal from a judgment in favor of the defendant, entered upon •a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Wm. H. Mundy, for tbe appellant.

      David Thornton, for tbe respondent.
   Beady, J.:

It appears from tbe evidence in this case that one Mary Ann Schultz died in the city of New York intestate, and that Rachel Depew, who was her only heir and next of kin, consulted Bornt P. Winant, a merchant doing business at Rossville, Staten Island, and not far from where Rachel lived, about the estate, who advised her that letters of administration were necessary and proposed to act as administrator. Rachel having accepted this advice and offer he applied for the letters and Rachel joined in the application as required by law. They were granted to both of them.

The defendant and Peter Cortelyou executed the joint and several bond required by the statute in such cases. Bornt P. Winant, however, alone administered the estate, and after the time in which he was required to file his account had expired Rachel filed a petition to compel such a proceeding on his part. Tie answered by claiming that he had settled with her and that she had no standing in court to compel him to account. This she denied and a reference was ordered by the surrogate. Pending the reference Rachel died without leaving a will, and one Cornelius W. Depew was duly appointed by the surrogate of Richmond county administrator upon her estate. As such he presented a petition to the surrogate in this county to revive the proceedings instituted by Rachel Depew for an accounting and his application was granted. Issue was joined and the referee previously selected was appointed. He found that Winant was indebted to the estate and to the heir-at-law about $2,000, and that Winant ought to file his account as administrator and so reported to the surrogate. Exceptions were taken to the report, but were overruled and he was required to file his account. Pie failed so to do, and proceedings to punish him for contempt being instituted he began proceedings to account. The account was filed and included an item of $2,000 as a payment to Rachel. The matter was again referred to the same referee to take the proofs and report to the surrogate. The referee found there was something like $2,000 unpaid to Rachel, and still due to her representatives, which the administrator had converted to his own use. TEe repeat was confirmed and a final decree; made- and entered, adjudicating that tke amount mentioned, was due and payable to-Cornelius- W. Depew from the administrator of Mrs-. Schultz’,, together with compound interest, annual rests and costs, in all the. amount claimed in the plaintiffs complaint herein,, and Winant was-ordered to pay it to Depew, as administrator, or to 'William. H. Mundy, his attorney. He failed to make the payment, or any part of it, and the claim thus established was assigned to- the plaintiff herein.. This action was, therefore, brought against Jesse Oakley,, ■the defendant (the other surety being dead and his estate worthless),, to recover the amount of the decree.

The right of the plaintiff to succeed was resisted upon the ground that there was no cause of action in favor of the plaintiff, as assignee. And this broad proposition rests upon the assumption that it: was-an action in which the principal was suing her own surety, upon a bond executed by herself, for the wrongful acts of her co-principal, essaying in effect to make the surety liable to his own principal, which is an unheard of proceeding, and if successful would reverse the whole theory of the relation of principal and surety.

TVe do not see very well how this proposition can be successfully disputed. The condition of the bond entered into was that if Rachel Depew and Bornt P. Winant should faithfully execute the trust reposed in them as administratrix and administrator of all and singular the goods, chattels and credits of Mary Ann Schultz or Scholtz, late of the city and county of New York, deceased, and obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to them, then this obligation to be void, else to remain in full force and virtue.

■ The defendant was therefore a surety for both Rachel Depew and Bornt P. TYinant, and they were equally bound, so far as he was concerned as surety, to look after the estate; and neither could be permitted as against the sureties to take advantage of any liability growing o.ut of an omission to observe this duty, whatever relations might exist between them and creditors. The relation established between them and their sureties was such that both were equally bound so to administer the estate that the sureties should incur no liability. The undertaking of the sureties was that both principals would administer the estate; and if one of them converted it, it must necessarily have been because the other did not unite in the actual administration which appears to have been the case here. And, therefore, whatever loss was occasioned was the result of the negligence of the one who failed -to discharge her duties. The sureties indeed are entitled to indemnity from the principals for any loss resulting from the conduct of the latter, and not at all to be subjected to liability to them occasioned by their own misfeasance or malfeasance. It was held in Van Horne v. Everson (13 Barb., 526), where it appeared that the principal had neglected to pay, and the land of his sureties was sold for the debt and he purchased it, that he acquired no title against his sureties. He could not take advantage of his own wrong. The ruling was in accordance with the dictates of natural justice and equity. The remedy of the plaintiff herein seems to be against the co-principal or his representatives.

For these reasons the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Beady,' J.:

text:
    JOSEPH J. GARVEY, Respondent, v. MARGARET OWENS and Others, Appellants.
    Evidence— testimony as to the genuineness of the signature of a deceased person — when inadmissible under section 829 of the Oode of Givil Procedure.

      A piece of ground, purchased in 1860 by one John Garvey, was, at his request, conveyed to his brother James. On December 14,1869, James, in consideration of one dollar, conveyed the premises to John, who on the same day, by an instrument dated December fifteenth, conveyed the premises to James, who by the terms of the instrument was to collect the rents and defray therefrom all necessary expenses, and upon the payment of a sum therein named was to convey the premises, together with the net rents thereof, to Joseph J. Garvey, a son of John. This action was brought by Joseph against the infant heir-at-law and widow of James to have it declared that he was entitled to a conveyance of the premises and to recover the net rents thereof. Upon the trial the validity of the signature of James to the papers, dated December 14 and 15, 1869, was disputed by the defendants. Upon the trial John, the plaintiff’s father, was called and asked to look at the signatures to the two papers and to state in whose handwriting they were.

      Held, that the court erred in admitting the evidence as the witness was not competent to prove the signature of the deceased, to the deed, through which the plaintiff derived his title.

      Appeal from an interlocutory judgment in favor of the plaintiff,' rendered at tbe Special Term.
    The action was brought to have the plaintiff declared entitled to receive a conveyance of a certain piece of land, and to compel the ■defendants to acount for the rents thereof.

      Geo. H. Foster, for the appellants.

      E. B. .Robinson, for the guardian ad litem.

      •Geo. G. Genet, for the respondent.
   Beady,' J.:

It appears from the record that in 1860 John Garvey, who was -the father of the plaintiff, purchased a piece of ground in the city -of New York, which, at his request, was conveyed to James Garvey, his brother. In 1862 James Garvey conveyed the property mentioned to Michael Morrison without any consideration. Subsequently, and on or about the 1st of May, 1866, a lease was executed' •of the premises by John and James Garvey both, and by which they were demised for one year from May 1, 1866, by John to James. And this, notwithstanding that, as we have seen, they had ■already been conveyed to Morrison. On the 1st of February, 1867, however, by deed duly recorded, Michael Morrison, to whom the premises had been conveyed by James Garvey, by deed duly executed and recorded, as stated heretofore, reconveyed them to James. The latter paid nothing at the time of this transfer. On •or about the 14th of December, 1869, an instrument was executed between James Garvey and his brother John for the consideration of one dollar, whereby the former granted, bargained and released to the latter a certain lot of land, being the premises in question. And on the same day, although dated December fifteenth, another instrument was executed by the parties, John Garvey being the party of the first part, and James of the second part, by which, for the consideration of one dollar, the same premises were conveyed to James, but which contained the following clause:

“And it is hereby further agreed, by and between the said parties, that the party of the second part shall and will collect all rents from said described premises, and to defray all necessary repairs, taxes and insurance that may accrue out of the said rents. Now this agreement, witnessetfy expressly, that said party of the- second part shall and will grant, release and convey forever to Joseph James Garvey, of Tompkinsville, Richmond county, and State of New York, a son of the aforesaid John Garvey, for the sum of one-dollar, all the above described lot of land with the building erected thereon, and also all sums of money that may have beeii collected for rents or otherwise from the same, after deducting the sum of' three thousand five hundred dollars, without interest thereon, and also the expenses defrayed for all repairs, taxes and insurance from the day and year first above written, until the time when the said Joseph James Garvey shall become at the age of twenty-one years,, which will be on the twenty-eighth day of October, in the year-eighteen hundred and eightv-one.”

In 1877 James Garvey, having in the meantime married, died leaving the defendant Joseph Garvey, an infant, his only child and heir-at-law him surviving, and leaving, also, his wife, a widow, the-defendant Margaret Owens, who has since married.

The execution of these papers in tlieir form furnish a curious-episode in the history of legal transactions. It does not satisfactorily appear from the record that any reason existed for transferring the-property to James when John paid the consideration. But people in the humbler walks of life, and particularly of the nationality of the Garvey’s, have very extraordinary methods of dealing with real estate. Sometimes it arises from an apprehension of creditors and sometimes from a fear, however unfounded, that the purchaser’s-wife may in some way interfere with the transfer of the property — an interference, it may be here remarked, which often results to the great benefit of the owner.

It is probably said, however, that the last instrument of the series-mentioned, was intended as a mortgage to secure James for advances made and by which, as we have seen, he was to make a transfer of the property to the plaintiff when the prerequisites called for by the instrument had been complied with and occurred. The proof of the execution of these papers, more particularly the latter two which were not recorded, was necessary for the success of the plaintiff, who claims through his father John Garvey, under the last instrument executed between the parties according to its date.

The signature of James to these instruments was questioned and the trial was a serious issue. The learned justice presiding, in expressing his views about the controversy, said that although there might be some suspicious circumstances connected with the presentation of the claim of the plaintiff, yet there were others which •supported it; and he referred to the lease already mentioned as one. He determined that the deed of the fourteenth of December and the •agreement of December 15, 1869, were both signed by James, expressing his judgment about the signatures upon these papers •on comparison with others.

J ohn Garvey, however, who was called as a witness, was ashed to look at the signatures of John and James Garvey and to state in whose handwriting they were. And this was objected to as incompetent to prove any transaction between himself and the deceased, the witness being a party through whom the plaintiff claimed title. The objection was overruled and the defendant excepted. He was also asked as to the instruments which were last executed, bearing ■dates the fourteenth and fifteenth of December, and that question was objected to, on the ground that it related to a transaction between the witness and his deceased brother. T.he objection was overruled and an exception duly taken. The objection was again repeated when the papers were offered in evidence because they had not been established so far as James Garvey was concerned. And the objection being overruled, an exception was duly taken. Joseph •J. Gar'vey the plaintiff wTas subsequently called as a witness on his •own behalf, and was interrogated in regard to these signatures. An ■objection was taken but overruled and then an exception was noted.

The question presented upon this state of facts in limine is whether the witnesses under section 829 of the Code of Civil Procedure were competent to testify as to these signatures. That section provides that upon the trial of an action, or hearing upon the merits of a special proceeding, the party or person interested in the ■event, or a person from whom or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the person succeeding to his title, concerning a personal transaction or communication between the witness and the deceased person. ■ The proof of the signatures of James Garvey, by John Garvey, related to a personal transaction between them, concerning as it did the former’s interest in real estate which James held, he alleged, for' .his benefit and in trust; and the testimony of the plaintiff was that of an interested party testifying to a transaction with another and .the deceased James Garvey, for his benefit and against whose heirs he claimed adversely.

In the case of Resseguie v. Mason (58 Barb., 89) it was held tuAt the provisions of section 399 of the Code-related as well to written as to verbal communications, and that in an action brought against the writer of letters relating to business transactions by the administrator of the person addressed, the defendant was an incompetent person to prove that the letters were written, or that they were received and retained by the person addressed.

In the case of Denham v. Jayne (3 Hun, 614) it appeared that the defendants held lands in trust for Maria, the wife of one Mark Cornell, and to secure to the defendants certain advances of money made by them for her account. A reference was ordered to determine the amount, and the referee found an amount due to the defendants as to which there was a dispute. It appeared that Mrs. Cornell,, the plaintiff in the action originally, died during its pendency, and the then named plaintiff had been substituted as her representative. It also appeared that the complaint verified by her had been prepared under the direction of the defendant Jayne, who was a witness before the referee, and who testified that she signed the affidavit, in his presence, verifying the complaint. He also gave evidence to show generally that he was acquainted with her handwriting. The referee admitted the complaint as evidence of the amount due by the defendants, but the court held that the evidence of Jayne, a party to the action, that he had seen Mrs. Cornell sign it, was testimony of a transaction between them and was not admissible under section 399 of the Code.

Little doubt is entertained, upon an examination of the record in this case, that the property in dispute was originally purchased by John Garvey and should be given to his heir, the plaintiff, in accordance with the agreement of December 15, 1869, and it is to be regretted, therefore, that the judgment may not be affirmed as the justice of the case would seem to require. But no doubt is entertained that the testimony of John Garvey, which was objected to, was incompetent and could not be admitted under the provisions of section 829 of tbe Code, to which reference has already been made.

The plaintiff was, of course, interested in the event of this action, and his father John was the person through whom he derived his title and his right of action. The words of the statute just referred to are words of exclusion and, as said in Holcomb v. Holcomb (95 N. Y., 325), " are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another. The statute is a beneficial one and ought not to be limited or narrowed by construction.” But if there were any doubt as to the propriety of admitting the testimony of the plaintiff in this action, for the reason that the proof of the signature may be regarded as an independent fact founded upon relations other than those gi’owing out of the transaction under consideration (see McKenna v. Bolger, decided at this term), there can be none as to the impropriety of admitting the evidence of his father John, between whom and the deceased James the arrangement took place, by which the last instruments were executed and their negotiations consummated. The statement by him that the deceased signed the papers exhibited, or that the signature of James made upon them was his, was in effect a statement that the instrument was the embodiment of an agreement made between them.

The judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., and Davis, P. J., concurred on the ground that John Garvey was not competent to prove the signature of the deceased party to the deed, through which the plaintiff derived his title.

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

        Post, p. 526.


text:
    THOMAS J. McCAHILL, Respondent, v. SOLOMON MEHRBACH, Appellant.

      Statute of Imitations — when a lettei' is a sufficient aclmowledgment of a debt within section 395 of the Oode of Qvwl Proeedwt'e.

    In tbis action, brought by the plaintiff to recover for services and disbursements, rendered and made by him as an attorney, upon the employment and retainer of the defendant, he sought to take the case out of the statute of limitations by a letter written to him by the defendant. The letter read as follows: “ Tour brother Ben has sent for me to come and see^ him on account of a bill I owe you for services. When I seen you last we were talking about the matter and you said you would wait until you got back. I think we better settle our matters between ourselves. When you get back I will show you what I owe you and will pay you. I have paid everybody and I think I can pay you.” * * *

      Held, that this was a sufficient acknowledgment or promise to take the case out of the statute of limitations, under section 395 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      James M. Smith, for the appellant.

      De Witt O. Brown, for the respondent.
   Daniels, J.:

The demand recovered by the plaintiff was, in its greater part, barred by the statute of limitations, unless a letter written by the defendant to the plaintiff on the 17th of January, 1884, contained such an acknowledgment or promise to pay this indebtedness as would interrupt the running of the statute. The plaintiff’s demand was for services and disbursements, rendered and made by him as attorney and counselor-at-Iaw, upon the employment and retainer of the defendant. There was no other debt claimed to exist in his favor against the defendant, and the letter which was written must accordingly be held to have applied to, and been intended to, include this indebtedness. The letter was as follows:

“ New York, Jcmuary 17, 1884.
Thomas J. McCahill, Esq.:
Mt Dear Sir. — Your brother Ben has sent for me to come and see him on account of a bill I owe you for services. When I seen you last we were talking about the matter and you said you would wait until yon got back. I think we better settle our matters between ourselves. . When you get back I will show you what I owe you and will pay- you. I have paid everybody and I think I can pay you. I hope you will get better before you get back, .and hope our business relations will be as pleasant in the future as in the past, with the exception that I am not so overloaded with real estate and have more cash.
Tours truly,
SOLOMON MEHRBACH.”

And in its first sentence it contained a clear acknowledgment that the defendant was owing the plaintiff a bill for his services. The ■concession was unqualified that he did owe the plaintiff this bill; .and it was to the amount of that bill that the. defendant alluded in the statement afterwards made that he would show the plaintiff what he owed him and would pay him. The additional sentence was prompted by the same intention, in which he stated that he had paid everybody and thought he could pay the plaintiff. There was uo difference between the defendant and the plaintiff as to the fact that the former did owe the plaintiff a bill for his services. The •difference, so far as it extended, included only the amount of the bill, and whatever that might be it was the import of the letter that the •defendant agreed he would pay to the plaintiff. The letter contains, therefore, not only an acknowledgment that the plaintiff had a bill •owing to him from the defendant for legal services, but in addition to that an actual promise that he would pay him wrhat he would •show him was in fact owing to him. It is not very important to •consider the precise effect and ^extent of the promise, inasmuch as the preceding part of the letter contained a distinct and unqualified .acknowledgment that he did owe the plaintiff a bill for the services which he had performed for the writer. Eor that acknowledgment under the law as it was at the time in force, and the decisions construing it, was sufficient to take this account out of the statute of limitations. "What the Code of Civil Procedure, by section 395, has required to prevent the continued running of the statute is an .acknowledgment or propiise, contained in writing signed by the party to be charged thereby. This letter certainly contained the acknowledgment that the defendant owed the plaintiff a bill for his services, and from that acknowledgment the law will imply a promise to pay the debt. What before tbe enactment of tbis pro. vision of the Code would take the indebtedness out of the statute,, when the acknowledgment was made in words, will now be attended with the same result when such words have been reduced to writing; and the writing has been subscribed by the debtor. (Smith v. Ryan, 66 N. Y., 352; Kincaid v. Archibald, 73 id., 189, 194; Chace v. Higgins, 1 Thompson & Cook, 229.)

What the letter in brief was intended to accomplish was to continue the relation of the parties in the condition in which they stood at the time when it was written. And that was to obligate the defendant to pay the plaintiff whatever might be justly owing to-him upon his account for services rendered for the defendant. And as no more than that was recovered in the action, the judgment was right and it should be affirmed.

Davis, P J., and Hrady, J., concurred.

Judgment affirmed.


text:
    MARY SMITH, Respondent, v. JAMES DUFFY, Appellant.

      Execution against the person — when it may he issued to collect costs— Oode of Oivil' Procedure, sec. 550, sub. 4.
    In this action, brought by the plaintiff to annul and set aside a conveyance-executed hy her to her brother, the defendant, upon the ground that it was frauduiently obtained from her by him, a judgment was entered in her favor vacating the conveyance and awarding her costs. An execution against the person of the defendant having been issued for the collection of the costs under this judgment, the court below refused to set it aside.

      Meld, no error; that the execution was justified by subdivision 4 of section 550' of the Oode of Oivil Procedure.
    Appeal from an order deuying a motion to set aside an execution against the person of the defendant.

      William J. Kane, for the appellant.

      George F. Lcmgbem, for the respondent.
   Daniels, J.:

The action was prosecuted to annul and set aside an assignment or conveyance executed by the plaintiff to the defendant. It was alleged to bare been fraudulently obtained by him from her, and that it was so obtained was found as a fact by the court before which the trial took place. He was the brother of' the plaintiff and presented the. paper or conveyance in controversy to her and requested her to-sign it, which she did, relying upon their confidential relations-for its correctness. In doing so he took an unconscientious advantage of her and obtained from her valuable property interests. By the judgment which was recovered this conveyance or assignment was vacated and annulled for the fraud of the defendant in obtaining the same from- the plaintiff, and she was adjudged to-recover for the costs of prosecuting the action the sum of $319.45. For the collection of these costs an execution was issued against the property of the defendant and returned unsatisfied, and thereupon an execution was issued against his person, which it was the object of the motion to set aside. The court held the execution against the person to have been lawfully issued, and denied the motion, and it is to review this determination that the appeal has been taken by the defendant. In support of it his counsel has claimed’that an execution against his person could not be issued upon the judgment,, inasmuch as no order of arrest was ever made or served in the action.

The liability of the defendant to arrest upon the execution is to-be determined exclusively by the provisions contained upon the subject in the Code of Civil Procedure. It has been declared by section 548 that a person shall not be arrested in a civil action or special proceeding, except as prescribed by statute, and section 1487 has-further declared that a judgment can be enforced by execution against the person in but two specified classes of cases. The first-is where the plaintiff’s right to arrest depends upon the nature of thé action, and the second upon the fact of an order of arrest having been granted and executed and not afterwards vacated. That an execution for the collection of these costs was an appropriate mode of proceeding has been declared by subdivision 2 of section 1241 of the Code of Civil Procedure, and the point was considered and so held in Jacguin v. Jacquin by this General Term. So far as the recovery of costs was provided for by the judgment, the. regular mode of carrying it into effect, therefore, was by the process of an execution. But as no order of arrest was obtained in the action, the right of the plaintiff to issue an execution against the person of the defendant must depend upon the point whether the right to arrest him resulted from the judgment itself, and that is to be determined by the preceding sections of the Code declaring the cases in which a defendant may be arrested in a civil action. These cases have been prescribed and defined by sections 549 and 550 of “ the Code of Civil Procedure. Those contained in the first of these sections are all cases where the right to arrest necessarily forms a part of the judgment. The subject-matter of the actions mentioned in the section is that of legal wrongs, or misconduct, for the result of which the defendant is liable to arrest. It has been supposed that the present case was included within subdivision 2 of section 549, but as that includes only actions for damages sustained by reason of one of the causes men. tioned in the subdivision, and this was not an action of that description, this position cannot be sustained. The term damages ” in the subdivision has evidently been used in its legal sense, as including the compensation a party may be entitled to for the consequences or losses sustained by one or more of the wrongs mentioned in the section. And as no claim for such damages was included in the plaintiff’s complaint in this action, it is entirely clear that this subdivision has no application to her right to issue an execution against the person of the defendant. The other subdivisions ot' the same section are also clearly inapplicable to the case. If the execution can be sustained, it must be done, therefore, under the authority •of section 550, and not of the preceding section. The leading object of section 1487 has been to prevent the arrest of a party where the right to make it has not formed the subject of controversy, and been sustained by an adjudication in the action in which the execution against the person is proposed to be issued. "Where the action itself is upon a subject-matter directly charging the commission of a wrong by the defendant, and an adjudication to that effect has been made in the action, there the right to arrest the defendant upon an execution against his person will necessarily be sustained under the first subdivision of this section. Put where that may not be the nature of the action, and the liability to arrest depends upon extraneous facts or circumstances, there it has been required that an order of arrest shall first be obtained, executed and continued in force against tbe defendant, before be will be liable to an execution upon the judgment against Ms person. This is the language and effect of subdivision 2 of this section, and it includes the classes of cases which are contained in subdivisions 1 and 2 of section 550 of the Code. There the misconduct for which the right to arrest has been provided will not form any part of the subject of the action itself, but it is necessarily incidental and in no manner entering into the plaintiff’s complaint, and to justify an arrest under these subdivisions proof by affidavit is required to present tMs collateral misconduct, and the order obtained upon it is- required to be served upon the defendant, and to remain in force at the time when the execution against the person may be issued. But these are the only instances in which this collateral inquiry and adjudication of a wrong are required to be made to justify an execution- against the person. For the cases provided for in subdivisions 3 and 4 of this section are those where the action itself is necessarily brought upon an allegation of the wrong which it is its design to correct. Each of the subjects included in these two subdivisions is. that of a positive and affirmative wrong on the part of the person proceeded against in the action, and its determination necessarily requires an adjudication as to whether the wrong alleged was or was not committed. Neither of the unlawful acts included within subdivision 3 of this section formed the subject of the plaintiff’s complaint in this action, but that included in subdivision 4 of the section was the subject-matter for which she claimed redress. Her action was brought to rescind and annul a transfer or conveyance of her property, fraudulently obtained by the defendant, and for a failure to comply with that portion of the judgment directing him to deliver up to the plaintiff’s attorneys for her the ’assignment or, conveyance in question, and to cancel, vacate and set aside the registry of it in the register’s office, he might be punished for a contempt under the authority of section 1241 of the Code. From this circumstance, as well as the nature of the allegation contained in the complaint and the facts found by the court, it is clear that the action was included within subdivision 4 of section 550 of the Code, and in that action if it could have been made to appear that he was not a resident of this State, or being a resident was about to ■depart therefrom, and that there was accordingly danger that the judgment might by that circumstance be rendered ineffectual, he would have been liable to arrest by virtue of an order under section ■:551 of the Code. But this arrest under such an order would not result from the existence of any incidental or collateral wrong per-peti’ated by him, but from the necessity alone of securing his presence within the jurisdiction of the court for the enforcement of any judgment recovered in the action. The nature or subject-matter of the action would be unaffected by such an incidental proceeding. Its gist would still remain the sole wrong charged against the defendant, for which, upon proof establishing its existence, the plaintiff would be entitled to the redress finally awarded to her by the judgment. The wrong and not the incidental question whether there was danger of the defendant’s departure from the State, would continue to be the subject-matter of the litigation.

That was the controlling issuable fact, without establishing which the plaintiff would have no ground of action and could recover no judgment against the defendant, but by establishing it the rights claimed by her would necessarily be determined, as they have been in this action, in her favor. Her right, therefore, to proceed against the defendant’s person did depend upon the nature of her action, and not upon the incidental inquiry whether he was or was not about to depart from the State. That was a collateral subject having nothing whatever to do with the merits of the controversy. They were of a different character, charging the defendant with the commission of a positive wrong. There evidently could be no actionable wrong attributed to his design to leave the State; and if he entertained it it was not the purpose of this provision of the Code to render him subject to arrest by final process upon the judgment because of that circumstance. The wrong consisted in his fraudulently obtaining from the plaintiff, who is his sister, this assignment, or conveyance, of her property; and it was to render her legal redress, as certain as the law could make it for this wrong, that this incidental arrest during the pendency of the action was provided. In this respect the arrest was distinguishable from that provided for by subdivisions 1 and 2 of this section of the Code, for there the arrest would be the direct consequence of a wrong, not itself forming a part of the subject-matter of the action. While in this case the wrong was tbe exclusive subject-matter of the suit, and the object of the arrest under an order would be the detention ■of the defendant until judgment could be recovered and enforced against him, according to the effect of the adjudication which should be made upon the wrong alleged as the foundation of the suit, and that did present a case in which the right of the plaintiff to arrest the defendant depended upon the nature of the action. If it did not, then the absurdity would follow that in the same class of •cases a defendant not a resident, or about to depart from the State, .and prevented from doing so by an order of arrest, might be regularly arrested under an execution against his person, while a ■defendant, actuated by no such intent or expectation, would not be liable to arrest upon such an execution upon precisely the same allegations and adjudication, and-that could not have been the design •of any part of this subdivision of section 550 of the Code. What it intended by the proceedings provided for was to secure complete .and adequate means of redress for the wrong forming the subject ■of the suit, and a prominent part of those means would be the punishment of the defendant by way of imprisonment for his failure ■or refusal to comply with the directions contained in the judgment; and it is not to be supposed, where a proceeding of this extreme character can be maintained against the party, that it was designed to relieve his person from arrest by execution on that part of the judgment which' included the recovery of the costs. JBut, on the other hand, as the sole subject-matter of the action was the •defendant’s wrongful act, and that was necessarily adjudicated against him by the judgment, it was the design of the law to provide for the arrest of his person by means of an execution under subdivision 1 of section 1487 of the Code. To construe it otherwise would be needlessly to restrain and limit the language which has been made use of, for it has, in the most general manner, provided for the defendant’s arrest upon execution where the nature ■of the action itself is such as to adjudge him to have been guilty of a wrong forming the exclusive foundation of the plaintiff’s right to redress.

What 'these provisions of the Code were designed to accomplish was, that a party should be relieved from liability for arrest in all cases of contracts, unless it be the case of a promise to marry, where the contract had not been fraudulently entered into, or the liability had not in that manner been incurred, and the defendant had not implicated himself in any wrongful act in the way of an attempt or endeavor to cheat or defraud his creditors, and in other eases where actual or intentional wrong had been perpetrated and made the subject-matter of the action, so as to be necessarily adjudicated against the party by the judgment, to provide for enforcing the judgment by the proper process for that purpose against his person, if it could not be satisfied out of his property. That has been the general aim and policy of the law, and it is not to be supposed, in view of the careful provisions which have been made upon this subject, that the legislature intended to relieve a person who had fraudulently deprived another of his orher property from liability for final arrest after that fact had been necessarily determined'against him by the final decision of the action. But the purpose of the law has been, where the fact has been so-adjudicated, to render him liable for final arrest, for the reason that the nature of the action itself, and its necessary determination, must conclusively establish the fact that he has been guilty of a. wrong for which the plaintiff should be secured this mode of redress. The execution in this case was justified by the authority of subdivision 4 of section 550 of the Code. It was an action where the nature of the subject was that of a legal wrong, for the complete redress of which, and the collection of the expenses necessarily incurred in prosecuting the suit, the plaintiff has become entitled to proceed against the defendant’s person. The order in the case was warranted by these provisions of the law, and it should be affirmed, with the usual costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.

      Reported 86 Hun, 878.


text:
    MARY M. JONES, Appellant, v. THE MAYOR, ALDERMEN’ AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Action to recover the amount of an assessment paid to a city — effect of Us voluntary payment, 'before the commencement of proceedings to vacate the assessment.

    This action was brought by the plaintiff to recover the amount of an assessment for a local improvement paid by her to the defendant. After the payment was made proceedings to vacate the assessment were instituted by the plaintiff and were subsequently decided in her favor.

      Held, that although the fact of such payment would have been a good ground for refusing to vacate the assessment, yet as the assessment was in fact vacated,. and no appeal from the order vacating it had been taken, the plaintiff was entitled to recover. (Davis, P. X, dissenting.)
    Appeal from a judgment dismissing the plaintiff’s complaint.

      Moody JB. Smith, for the appellant.

      Albert L. Cole, for the respondent.
   Daniels, J.:

The action was brought to recover the amount paid upon an assessment for a local improvement, the proceedings in which were afterwards vacated at the instance and on the application of the plaintiff. These proceedings were not commenced until after the payment of the assessment had been made, and for that reason it was held at'the trial that they were inoperative and secured to the plaintiff no legal right to the recovery of her money. This objection was held to be fatal under the authority of Matter of Lima (77 N. Y., 170), and Matter of Hughs (93 id., 512), in which it was held that a party affected by a local assessment should not be permitted to institute proceedings to vacate it under the statute, after having paid the assessment. Rut these decisions were made after the proceeding was taken and consummated to vacate this assessment, and it was probably supposed at that time, even if the fact of payment was made to appear, owing to the extreme technical severity characterizing the application of the statute, by means of which the expenses of local improvements have very, generally been imposed upon the general taxpayers and property owners of the city, that it would justify and sustain a proceeding of this description after the assessment itself had been paid. And under that misapprehension 'the order was probably made, while it would not have resulted in the proceedings if any intimation had existed that they should not be sustained after the payment of the assessment itself. The court as it now appears, if this fact was before it, erred in the application of the statute, but there was no such want of jurisdiction as would justify the ruling that tbe proceedings themselves were void. An error on the part of the court in the administration and enforcement of the law will not be attended with this result. (People ex rel. Reynolds v. Brooklyn, 49 Barb., 136, 141.)

It is only when there is an absence of jurisdiction either over the party or the subject-matter that judicial proceedings can be held to be inoperative in another action. The remedy for the correction of error, when that may intervene, is by way of appeal, and to that the defendant was restricted for the correction of the misapprehen- . sion under which the court acted in making the order vacating the assessment.

The defendant was brought before the court in the plaintiff’s proceeding to answer the application, and it had authority to hear it under the provisions of the statute. It accordingly had jurisdiction over the party and the subject-matter, and made the order upon a state of facts which was deemed to bring the application within the scope and extent of the statute. It is now too late to question its authority. (Grignon's Lessee v. Astor, 2 How. [U. S.], 319, 838; Peck v. Jenness, 7 id., 612, 624; Stout v. Lye, 103 U. S., 66, 68.) At that time the defendant was at liberty to show, in answer to the application, that the assessment had been paid, and for that reason to object to the authority of the court afterwards to vacate it; and because it failed to do so, or to make its objection effectual, it cannot now resist the plaintiff’s right to recover the money because of such failure. The principle, on the contrary, has been, in very general terms, settled, that after the proceedings for the imposition of the assessment have been vacated the party paying the assessments has the legal right to recover back the amount paid. (Peyser v. Mayor, etc., 70 N. Y, 497; Purssell v. Mayor, etc., 85 N. Y., 330.)

It is true that in these cases the assessment was not paid until after the proceedings bad been commenced to vacate it, but it has been held in- them, in general terms, that after the- assessment has been vacated the party assessed may recover back the. amount paid upon the assessment. The proof brought the plaintiff’s case within this principle, and her action could not be defeated by the eireum-■stance that the court should have refused to vacate the assessment at the time when the application for that purpose was heard and •decided.

The judgment should be reversed and a new trial ordered, with •costs to abide the event.

BRadt, J., concurred ; Davis, P. J., dissenting.

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