text:
    Maurice B. Blumenthal v. Edward Lloyd.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Removal of case from district to common pleas—Damages claimed.
    Interest to the time of verification demanded in a complaint on a check payment of which was stopped is part of the “ damages claimed,” within Code Civ. Proc, § 3316, providing for removal of actions from the district court of New York City to the common pleas.
    Appeal from district court.
    Action by Maurice B. Blumenthal against Edward Lloyd on a check given by defendant to plaintiff, payment on which was stopped. There was a judgment in favor of plaintiff for $100, and defendant appeals.
    Benno Loewy, for appellant; Maurice B. Blumenthal, for respondent.
   DALY, P. J.

—The sole question presented upon this appeal is whether the defendant was entitled to an order removing the case to the city court upon his application for such removal, made on the ground that the amount claimed in the complaint exceeds $100. It would appear from the record, and the statement made upon' the argument of the appeal, that the proceedings of the appellant to secure the removal, if he were entitled to it, were regular. He appears to have had an unsigned undertaking, to which, however, a certificate of acknoivledgment was appended, together with affidavits of sufficiency of sureties, and which contained a blank space for the amount to be fixed by the justice. It is claimed that this was an irregular instrument, but no question on that point can arise, since the justice refused to fix any amount; and, until he did so, the tender of an undertaking was unnecessary. The real point in controversy is whether a demand, in a complaint, verified on June 18, 1896, for $100, with interest thereon from June 13, 1896, makes this a case ivhere “the damages claimed” exceed $100, and where a removal can be had under section 3216 of the Code of Civil Procedure; in other words, is interest demanded in the complaint a part of the damages claimed? This question has not, so far as we have been able to learn, been decided in this state, nor does a reference to the Code furnish any satisfactory solution of the question. In section 316, fixing the jurisdiction of the city court, it is provided : “ In an action wherein the complaint demands judgment for a sum of money only, the sum, for which judgment is rendered in favor of the plaintiff, cannot exceed two thousand dollars, exclusive of interest.” If principal and interest were not regarded as parts of the sum claimed, the limitation “ exclusive of interest ” would be superfluous. Too much weight, however, cannot safely be given to the language of a statute which is so extended, and which is so incessantly changed by amendments. Generally speaking, interest is an element of a debt or claim. People v. New York Co., 5 Cow. 331; Dana v. Fiedler, 12 N. Y. 40-50 ; In re Fay, 6 Misc. Rep. 462 ; 27 N. Y. Supp. 910. Under the former provision of the Code (section 191, subd. 3), forbidding appeals to the court of appeals in cases where the matter in controversy, excluding costs, is less than $500 inter-, ■est was counted. Josuez v. Conner, 75 N. Y. 156; Bank v. Morton, 67 N. Y. 199 ; Graville v. Railroad Co., 104 N. Y. 674; 8 S. R. 20. In other states there are authorities more in point. In Plunkett v. Evans (S. D.), 50 FT. W. 961, 962, in a well-considered opinion, the court held, under a statute which provided that the justice “ shall not have jurisdiction where the debt or sum claimed exceeds one hundred dollars,” and in a case where plaintiff demanded judgment for $86.50, with interest, amounting in all to $114, that interest constituted a part of the sum claimed, and that the justice was without jurisdiction ; and Ball v. Biggam (Kan. Sup.), 23 Pac. 565, upon a shnilarly worded statute, is to the same effect. State v. Superior Court, 9 Wash. 369; 37 Pac. 489 ; Magarahan v. Wright (Ga.), 10 S. E. 584; Strattan v. Society, 6 Rand. (Va.) 22; and Skllman v. Lachman, 23 Cal. 199,—are also cases which hold that interest should be included. The cases of Jackson v. Whitfield, 51 Miss. 202, and Hedgecock v. Davis, 64 N. C. 650, —authorities relied upon by respondent,—are distinguishable. In the former, the language to be construed was, “ principal of the amount in controversy; ” and in the latter, as pointed out in Plunkett v. Evans, supra, the court made much of the tact that the former statutes had fixed the limit at $100, exclusive of interest, and that in making it $200 the legislature,in effect, said, “ Let it be double, exclusive of interest.”

There seems to be no good reason for a distinction between “the case of a plaintiff whose original claim of $100 has been increased by accrued interest, and the case of a plaintiff whose •claim at the start was in excess of that sum; or why the statute should be construed as refusing the privilege of removal in ■one case, and granting it in the other. I see no force in the -argument of the appellant that a check is not -an instrument that draws interest from its date, but only from the time of ■default in payment, and therefore that interest was interest “upon the damage, and not upon the debt. That makes no difference in the actual amount claimed in the complaint, since the plaintiff, if entitled to recover, was entitled to the interest as well as the principal. FTor is there much force in the objection that the court is not bound to take notice of a fact which requires it to make a computation. The case cited to sustain this proposition—Scott v. Lunt’s Adm’r, 6 Pet. 349—falls far short of so holding. There it was said:

“ The court cannot judicially take notice that by a computation it may possibly be made out as a matter of inference from the declaration that the plaintiff’s claim in reality must be less than one thousand dollars; much less can it take such notice in a case Avhere the plaintiff might be alloAved interest on his claim by a jury, so as to swell his claim beyond one thousand dollars.”

That is not this case. Here there was no room for inference or doubt. Interest MIoavs as a matter of right (2 Daniel, Meg. Inst. § 1458), and is a matter of certainty, for, as the check was for $100, any interest, however slight, Avould increase the claim beyond that amount, and bring the case within the language and meaning of the statute. It follows, therefore, that the justice should have complied with the motion of the defendant for the removal of the' case, and should have fixed the amount of the undertaking which he was to execute for that purpose.

The judgment avüI be reversed, with costs, and the cause remitted to the district court to make the order for removal upon presentation of the proper bond in an amount to be fixed by the justice.

All concur.


source: Caselaw Access Project

author: DALY, F. J.

license: Public Domain

text:
    John E. Ince et al. v. Louis Weber et al.

    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.).
    Contracts—Notice oe termination—Evidence.
    The giving of the required notice so as to terminate a contract of employment is not conclusively shown by an admission that the employé, shortly before the contract would have expired by its terms, sought other employment.
    Appeal from ninth district court.
    Action by John E. Ince and wife against Louis Weber and Joseph Field to recover damages for the wrongful discharge of plaintiffs from defendants’ theatrical company. There was a judgment in favor of plaintiffs, and defendants appeal.
    Affirmed.
    The contract was as follows:
    “ New York, January 14th, 1896.
    “ Mr. and Mrs. John E. Ince: We hereby engage you to join our c Trolley Party Company ’ for a season of nine weeks: or longer, commencing on or about March 1st, at a salary of $77.75 weekly, railroad fares and transportation and baggage. We also agree to pay your fares from New York to starting point. This engagement to be subject to all rules and regulations of the company. It is also understood that you will rehearse one week prior to your opening, without any claim for salary for the same.
    “Yours, truly, Weber & Field.
    “ Accepted by Weber & Field.”

      Charles L. Hoffman and Samuel Hoffman, for appellants; James F. Miliken, for respondents.
   DALY, F. J.

—The judgment was for a sum equal to one week’s salary, on the ground that plaintiffs were discharged without right, before the termination of the agreement; and the question of fact in the case was whether they received two weeks’ notice of the termination of the contract, under an alleged custom in the theatrical business that engagements should be terminated upon such notice. The judgment is attacked for alleged errors of the trial justice in the admission and exclusion of evidence, but we find none which calls for reversal. The objection to the contents of the posted notice or paper styled the “ Theatrical Call ” was not specific. Any error in disallowing the question put to the plaintiff John E. Ince, upon cross-examination, as to what, in his experience, was the meaning of the theatrical expression “ subject to rules and regulations ” when used in contracts of employment, was cured when he was allowed afterwards to answer the question. The appellant claims that he should have been allowed to have an answer in order to show that the phrase signified that the contract was terminable upon two weeks’ notice from either party. That he ivas not prejudiced by the temporary exclusion of the evidence is clear, because, after a few intervening questions, the question was asked: “You testify here, as I understand you, that there is no custom with respect to notice being given or received under this contract. Is that so?”—to which the witness replied: “Yes.” The appellant would have been in no better position had his question as first asked been allowed. As to whether the judgment was against the weight of evidence, we fail to see in the record sufficient reasons for ordering a new trial upon the facts. It was on Saturday night, May 2d, while the company was playing in Philadelphia, that the defendants notified them that the season was to close then and there. Plaintiffs had then been playing eight weeks, and one week remained of the contract. Mrs. Ince testified that she had not received any previous notice of the close of the season, but inasmuch as she admitted that, the Aveelc before, she had Axritten to trv and secure other employment, it is argued that she must then have had such notice. The inference Avould be plausible if it Avere not for the fact that the contract of nine Aveeks had then but a Aveek and some days to run, and that her Avriting at that time is consistent Avith an effort to get employment after the nine weeks, and Avas Avithout reference to an earlier termination of the contract.

Judgment affirmed, with costs.

All concur.


author: PER CURIAM.

text:
    Bernard F. Garvey v. Lona Island R. Co.
    (Supreme Court, Apx>ellate Division, Second Department.
    October 27, 1896.)
    1. Private nuisance—Evidence.
    A finding that defendant railway company operated its turntable so as to constitute it a nuisance as to plaintiff, is warranted by evidence that it was operated so as to unnecessarily cause a vibration, which was communicated to plaintiff’s premises, causing great annoyance and damage, which condition was greatly augmented by casting thereon smoke, etc., accompanied by harassing noises.
    2. Nuisance—Railroad companies—Powers.
    Implied authority to a railway company to operate a turntable does not authorize its ojieration in such a manner as to constitute a private nuisance.
    ■3. Injunction—Judgment—Inconsistency.
    A judgment enjoining as a private nuisance the operation of a railway turntable will not be disturbed as inconsistent because damages were refused.
    Appeal from special term.
    Action by Bernard F. Garvey against the Long Island Railroad Company. There was a judgment for plaintiff, and ■defendant appeals.
    Alfred A. Gardner, for appellant; Josiah T. Marean, for respondent.
   PER CURIAM.

—-The court below has found that defendant so conducts its business and manages its turntable situate upon its premises as to constitute the same a nuisance as to plaintiff and his premises. The evidence given upon the trial tended to ■establish that defendant so conducted its business as to unnecessarily cause a vibration of its turntable, which was communicated. to plaintiff’s premises, and caused great annoyance and damage; that this condition was greatly aggravated by casting thereon smoke, cinders, and ashes, accompanied by irritating and harassing noises. The evidence warranted the court in making the finding which it did, and supports the judgment which was entered thereon.- Defendant seeks its reversal by claiming that it has authority for what it did in the statute authorizing its creation and operation, and hence no liability attaches thereto for its acts. It is not contended that there is any express power conferred in the statute authorizing it to maintain and operate the particular turntable and yard as it is now operated. But the claim is that it is within the ■clearly-expressed intention of the legislature, derived from the statute. The following authorities are abundant in answer to this claim: Cogswell v. Railroad Co., 103 N. Y. 10; Morton v. City of New. York, 140 N. Y. 207 ; 55 S. R. 413 ; Booth v. Railroad Co., 140 N. Y. 267; 55 S. R. 656 ; Hill v. City of New York, 139 N. Y. 495 ; 54 S. R. 797; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317 ; 2 Sup. Ct. 719.

There is no force in the suggestion that the judgment is inconsistent in not awarding damages. The equitable powers of the court may be properly invoked to restrain the commission of a wrong of which it can take cognizance, and it may render any judgment essential to accomplish that end which is warranted by the evidence. We find no error.

The judgment should therefore be affirmed, with costs.


text:
    The People ex rel. Farrell v. John R. Sutton, Auditor.
    (Supreme Court, Appellate Division, Second Department.
    October 27, 1896.)
    Officebs—Teem of office—Cleek of boabd of supeevisoes.
    The office of clerk of the board of supervisors of Kings County, being dependent on the existence of the board, terminated with the abolition of the board by Laws 1895, c. 954, consolidating Kings County with the City of Brooklyn.
    -Appeal from special term, Kings County.
    Application by Thomas F. Farrell for a writ of mandamus against John E. Sutton, as auditor of the city of Brooklyn. From an order granting the writ, defendant appeals.
    Joseph A. Burr, for appellant; Luke D. Stapleton, for respondent.
   PER CURIAM.

—We held in the McGrinniss Case (People ex rel. McGrinniss v. Falmer, 6 App. Div. 19, 39 N. Y. Supp. 631) that the resolution of the board of supervisors appointing the relator assistant custodian of the records of the board did not terminate upon the day when the records were by law transferred to the city, in pursuance of chapter 686, Laws 1892, but that it continued until there was in fact an actual physical transfer. Upon appeal the court of appeals reversed this decision, and adopted as its views the dissenting opinion of Mr. Justice Cullen. That view determined that by operation of the resolution the employment of Mr. McGrinniss ceased upon the day when the consolidation act went into effect. The present relator was continued custodian under the same resolution ; consequently his case is governed by that decision. So far as relator claims that he still remains in office as clerk, by virtue of his appointment in pursuance of chapter 353, Laws 1878, it is to be said that this act did not create a new office, distinct and independent of the board of supervisors. The duties of the office of clerk were to be exercised in connection Avith the board. When the board aves abolished and ceased to have existence, all officers dependent thereon also passed out of existence, unless there was some saving clause in the act of abolition. It is not claimed that there was any resolution of the board Avhich had this effect, beyond the one already considered, or any provision in the act itself, except as the implication Avas raised by the necessity of performance of certain acts required of the clerk in his official capacity. Examination of the rules of the board shows that he could only perform acts-in connection with the continued existence of the board, except where certain duties were devolved upon, him by the board j and as to those they were all required to be performed prior to the taking effect of the consolidation act. We conclude, therefore, that the effect of the consolidation act was to abolish relator’s office. He is not within the class of employés mentioned in Judge Cullen’s opinion, who survived the consolidation act.

The order appealed from should be reversed, and the writ of mandamus quashed, with $10 costs and disbursements.


author: WARD, J.

text:
    Albert A. Baker v. William O. Leland et al.

    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    Limitation or actions—Accrual or cause op action—Promissory note.
    A writing which states that plaintiff has “deposited in this .[defendants’] bank $300, payable to the order of himself, three months after date, in current funds, on the return of this certificate; properly indorsed, and shall receive interest at the rate of seven per cent, per annum,” is a promissory note, and not a certificate of deposit, and the statute of limitations begins to run against it three months after its date. Howell v. Adams, 68 N. Y. 314, distinguished.
    Appeal from circuit court, Monroe County.
    Action by Albert A. Baker against William O. Leland and others on a promissory note. From an order dismissing the complaint, plaintiff appeals.
    J. H. Hill, for appellant; W. H. Ticknor, for respondents.
   WARD, J.

—The 1st of June, 1892, the plaintiff commenced this action against the defendants, who were bankers transacting business at Springville, H.Y., to recover upon an instrument in writing, of which the following is a copy:

“ Certificate of Deposit.
“ $200 Springville, H.Y., June 11, 1875.
Mr. Luzern Eaton has deposited in this bank two hundred, dollars, payable to the order of himself, 3 mos. after date, in current funds, on return of this certificate, properly indorsed,, and shall receive interest at the rate of 7 per cent, per annum
if left.-months from date.
“ [Signed] E. O. Leland, Cashier.
“Ho. 2092. $200.”

The defendants, among other defenses, alleged in their answer “ that at the time this action was commenced more than six years had elapsed since the cause of action set forth in the complaint accrued.” The cause of action had been assigned by Baker to plaintiff. Ho demand was made upon the defendants for the payment of the certificate until the spring of 1892, when the plaintiff presented the certificate to the defendants, ■and demanded payment, which was refused. Ho part of the amount evidenced by the certificate has been paid. The trial court held the statute a bar to the action, and dismissed the -complaint. The question before us is whether the conclusion of the trial court can be sustained. The appellant claims that the instrument above set forth is a certificate of deposit simply, and a demand of payment thereof was necessary before the .statute of limitations would commence to run against it. The respondents claim that the instrument sued upon is, in effect, a promissory note, that became due, by its terms, three months after its elate; and that the statute of limitations commenced to run at the expiration of the said three months. It is well settled in this state that in a deposit of money, evidenced by the ordinary certificate, which simply acknowledges a deposit, a demand is necessary before action brought, and that the statute of limitations does not commence to run until such demand is made. Payne v. Gardiner, 29 N. Y. 146; Downes v. Bank, 6 Hill, 297; Howell v. Adams, 68 N.Y. 314; Dorman v. Gannon, 4 App. Div. 458, 38 N. Y. Supp. 659, and cases cited. The banks, in case of an ordinary deposit, are simply the custodians of the money, subject to the demand of the owner of the fund. But the instrument we are considering in this case contains the elements of a promissory note, and is a very different instrument from the ordinary certificate of deposit. Blackstone defines a promissory note to be “a plain and direct engagement in writing to pay a sum specified at a time therein limited, to a person therein named, or sometimes to his order, or often to the bearer at large.” 2 Bl. Comm. 467. Kent defines it to be a written promise by one person to another for the payment of money absolutely at a specified time, and at all events.” 3 Kent, Comm. 74. Chitty defines it to be “a promise or engagement in writing to pay a specified sum at a time therein limited, or on demand, or at sight to a person therein named, or his order or to the bearer.” Chit. Bills, p. 17. Our Revised Statutes (section 1, pt. 2, p. 768) sanction the correctness of these definitions. In Hunt v. Divine, 37 I11.137, the action was upon a certificate, which was as follows:

Banking House of E. -T. Hunt & Co.
“ Sycamore, 111., March 9, 1861.
“ 0. M. Chase, Esq., has deposited in this bank two hundred and eighty dollars and fifty cents in currency, subject to the order of himself, and payable in like funds on return of this certificate, three months after date.
[Signed] E. T. Hunt & Co.”
Indorsed : “ C. M. Chase.”

This instrument, it will be observed, is to the same effect, and nearly in the same language, as the one in the case before us. The Illinois supreme court held that the instrument in the case was a promissory note, governed by the rules and principles applicable to that class of paper. And the court say, at: page 144, in commenting upon the effect of the statement that the certificate was payable upon the return thereof, that those' words did not change the legal effect of the undertaking, and add:

“ In every promissory note there is an implied undertaking by the payee or holder to return it to the maker on payment-of the money. An express undertaking to return it could have no greater force, nor could it change or modify the legal effect of the instrument. All that the maker can demand is that he shall be protected against the reappearance of the instrument, and against another recovery upon it. This is effectually accomplished by producing the instrument on the trial for cancellation, if need be,”-—citing Edw. Bills & N. 295, and Story,, Prom. Notes, § 107.

"We concur in this conclusion.

In Miller v. Austen, 13 How. 218, the supreme court of the United States held, in effect, that an instrument like the one in the case at bar was a negotiable promissory note. The instrument in this case has the elements of a promissory note. It-contains an absolute promise to pay the amount specified therein at a certain time (three months from date), and this instrument is clearly taken out of that class of instruments which are recognized as ordinary certificates of deposit. A direct authority for the position here assumed is Bank v. Merrill, 2 Hill, 295, where the Clinton Bank issued a certificate of deposit payable to the order of S. Benedict, at six months, writh interest, of which the plaintiff was indorsee. The court in that case held the instrument was, in effect, a negotiable promissory note.

The appellant seems to rely upon Howell v. Adams, 68 N. Y., supra, where the certificates of deposit provided that, if the money remained on deposit six months’ interest would be paid at 5 per cent, per annum. In all other respects the certificates were in the ordinary form. Judge Andrews says, at page 321, that within the cases of Downes v. Bank and Payne v. Gar-diner, supra, and in accordance with the general understanding of the commercial community, the bank would not be liable to its depositor except upon demand. That case is plainly distinguishable from the one at.bar, because the certificates there contained no promise to pay either principal or interest, except interest would be paid upon the contingency of the money remaining for six months. .

We are of the opinion, both upon principle and authority, that the contention of the respondent here must be sustained, and we must hold that the cause of action set forth in the complaint of this action is barred by the statue of limitations, and the judgment should be affirmed.

All concur.


author: VAN WYCK, C. J.

text:
    Max Gombossy v. Theo. Katz.
    (City Court of New York, General Term.
    October 30, 1896.)
    Payment oe forged note—Recovery.
    The maker of a negotiable note, paying the amount thereof under the mistake that the note surrendered by the payee, to whom the payment was made, was genuine, whereas it was in fact a forgery, may recover the amount of the payment.
    ■ Appeal from special term.
    Action by Max Gombossy against Theo. Katz. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.
    Henry M. Goldfogle, for appellant ; Herb. J. Hinds, for respondent.
   VAN WYCK, C. J.

—The ground of defendant’s demurrer was that facts sufficient to constitute a cause of action were not stated in the complaint, which alleged that plaintiff had executed and delivered four of his certain promissory notes in the aggregate sum of $740 to defendant for value; that thereafter he paid the sum of $755.40, principal and interest of such notes, to defendant, who simultaneously handed to plaintiff four promissory notes purporting to be, and which plaintiff believed to be, his genuine four above-mentioned notes, but which were in fact four notes to which his (plaintiff’s) signatures as maker and payee indorser were forged; that he demanded a return of this $755.40 from defendant, no part of which has been paid, and prays for judgment for said sum, with interest thereon from the day upon which he so paid it to defendant. The plaintiff’s genuine notes originally delivered to defendant were negotiable instruments, and a bona fide purchaser of them from defendant before maturity and for value could sue plaintiff, and recover the full face value thereof, notwithstanding that plaintiff had already paid defendant, believing that he was fully paying and receiving these original notes. Tbe plaintiff’s action is to-recover money paid under mistake. Money paid under mistake of fact may lie recovered, however negligent the party may have been in making the mistake, unless the payment has caused a change in the position of the other party that avouM be unjust to require him to refund. Payments on forged paper are based upon the ground of being made by mistake, and the party may recover back the amount. Edw. Heg. Inst. § 276. This defendant is the alleged fraudulent utterer of the forged paper, and is called upon to answer, denying this allegation of forgery, or fully explaining the illegality of his alleged transactions in the matter.

The interlocutory judgment overruling defendant’s demurrer is affirmed with costs, Avith leave to defendant to answer Avithin six days upon payment ( of the costs as fixed by the judgment below, and of the costs of this affirmance.

All concur.


author: BETTS, S.

text:
    Matter of Application for Letters of Administration upon the Estate of Richard G. Bruyn, Deceased.
    (Surrogate’s Court, Ulster County.
    June, 1895.)
    Judgment of divorce—Eefect in another state.
    The courts of New York will recognize as valid a decree of divorce, rendered in another state by a court of competent jurisdiction, in an action by the husband, a former resident of New York, where the wife, who remained a resident of New York, appeared by attorney.
    Separate applications by Charlettie Devoe Bruyn and by 'Charlotte A. Bruyn, each claiming to be the widow of Richard Gr. Bruyn, deceased, for letters of administration on Ms estate. Letters granted to Charlotte A. Bruyn.
    S. G. Carpenter, for Charlotte A. Bruyn, petitioner, and special guardian for Charles D. Bruyn and Eunice H. Bruyn, her infant children ; A. D. Lent, for Charlettie D. Bruyn, and for Minnie Bruyn, her daughter.
   BETTS, S.

—Richard G. Bruyn died at the town of PlatteMll, in this county, on the 21st day of November, 1894, possessed of certain personal property. Shortly thereafter a petition was filed in this court by one Charlettie Devoe Bruyn, claiming to be the widow of said Richard G-. Bruyn; and asking to have letters of administration upon his estate issued to her. Three days later a petition was filed in this court by Charlotte A. Bruyn, claiming to be the widow of the same Richard Gr. Bruyn, and asking to have letters of administration upon Ms estate issued to her. A citation was issued, and the two alleged widows and their children were brought into court. Upon the hearing it appeared that Richard Gr. Bruyn and Charlettie Devoe were married in Highland, in this county, December 4, 1870, and that they had one child, Minnie Bruyn, as a result of that union, who is now past 21 years of age. It also appeared that Richard Gr. Bruyn and Charlettie D. lived .together for only a short period of time, when they separated, and that subsequently, and in or about the year 1881, Richard G-. Bruyn went to the then territory of Dakota, and in the month of November, 1881, commenced an action for divorce in the third judicial district of that territory, in the district court in and for Cass county, against Ms wife, Charlettie, who then was, and always since has been, a resident of this state and county. The summons and complaint in that action were personally served upon the defendant, Charlettie Bruyn, at Highland, in this county, on November 23, 1881; and in the month of December, 1881, the defendant, Charlettie Bruyn, appeared in that action, and defended the same by her verified answer, duly sworn to, on the 7th day of December, 1881, which answer was duly filed in the Dakota court. Such further proceedings were had in Dakota that on the 23d day of October, 1882, a decree was entered, reciting that the defendant, Charlettie Bruyn, duly appeared in this action by A. D. Lent, Esq., her attorney, and duly made answer to the complaint herein by answer verified by her own signature and oath, and finding, among other things, that that court had jurisdiction of the cause of action and the parties, and that the plaintiff was entitled to the relief demanded in the complaint, and adjudging and decreeing that “ the marriage heretofore and now existing between the plaintiff herein, Bichard Gr. Bruyn, and Charlettie Bruyn, the defendant herein, be, and the same is hereby, dissolved, and that the said Bichard C. Bruyn, the plaintiff, be, and he hereby is, divorced from the said Charlettie Bruyn, the defendant.” It further appeared that on or about the 19th day of June, 1883, the same Bichard Gr. Bruyn, now deceased, describing himself as of Fargo, Dak. T., was married to Charlotte A. Wiltsie, of Clintondale, N. Y., at Danbury, state of Connecticut, in accordance Avith the laAvs of the state of Connecticut, by Curtiss C. Hoyt, a justice of the peace for Fairfield County, in the state of Connecticut, and from this union there Avere born íavo children, noAV living; the oldest, Eunice FI. Bruyn, 10 years of age, and the son, Charles D. Bruyn, 5 years of age.

The single question noAV before me is, which one of these women, Charlotte A. Bruyn or Charlettie D. Bruyn, is the' AvidoAV of said Bichárd Gr. Bruyn, and as such entitled to letters of administration upon his estate? By article 4, § 1, of the constitution of the United States it is provided that full faith and credit shall be given in each state to the public acts, records, and- judicial proceedings of every other state, a-pd the congress may, by general laws, prescribe the manner in Avhich such acts, records, and proceedings shall be proved, and the effect thereof. Congress has prescribed that they shall have such effect in every court Avithin the United States as they haAre by htw or usage in the courts in the states in-which they are taken. Act Cong. May 26, 1790, c. 11; Rev. St. U. S. p. 170, § 905. It Avas held in this state in an early case, by Mr. Justice Marcy, that if the jurisdiction of the court of another state as to the subject-matter or person is not impeached, the record of such judgment is entitled to full faith and credit. Starbuck v. Murray, 5 Wend 148. In Shumway v. Stillman, 6 Wend. 447, decided in 1831, it is held that an examination of the cases results in the establishment of the following proposition : That the judgment of a court of general jurisdiction, in any state in the Union, is equally conclusive upon the parties in all the other states as in the state in Avhich it is recovered. This, however, is subject to íavo qualifications : First, if it appears by the record that the defendant Avas not served Avith process, and did not appear in person or by attorney, such judgment is void; and, second, if it appear by the record that the defendant appeared by attorney, the defendant may disprove the authority of such attorney to appear for hiip. And this-case is quoted approvingly in Pringle v. Woolworth, 90 N. Y. 502, where it is held in an opinion by Chief Judge Andrews that the record of a judgment of a court of common pleas of a county in another state, in the absence of evidence to the contrary, is to be regarded as a judgment of a court of general jurisdiction, and is entitled to every presumption in favor of its. validity and regularity. And the same principle held in Shumway v. Stillman was approved in our court of appeals in Teel v. Yost, 128 N. Y. 391 ; 40 S. R. 110.

No attempt has been made in this case to deny or disclaim the authority of the attorney employed to appear in the Dakota court, nor could it well be denied, since the answer was verified by the then defendant herself. It was held in Kinnier v. Kinnier, 45 N. Y. 535, where the husband, a former resident of Massachusetts, went to Illinois, and began an action for divorce,, for a cause that could not be recognized as sufficient in Massachusetts, and the wife went to Illinois,' appeared in the action, and put in an answer, that the court had jurisdiction of the subject-matter of the action; that is, it had jurisdiction to decree a divorce according to the laws of that state. And every state has the right to determine for itself the ground, upon which it will dissolve the marriage relation of those within ' its jurisdiction. The court also had jurisdiction of the parties by the voluntary appearance of the defendant, and that, as regards the validity in this state of the decree of a court of competent jurisdiction in a sister state, the status of the parties within that state, and the question whether they, or any of them, were residents of that state, so as to give them a standing in court there for the purpose of such decree, are to be determined by that court, and its determination thereupon cannot", be questioned collaterally in our own. Jurisdiction of the person may be acquired by consent. The jurisdiction of the person may be acquired by consent, although not of the subject-matter, and it is wéll settled that a general appearance of the defendant in an action is equivalent to personal service of process. Jones v. Jones, 108 N. Y. 415; 15 N. Y. 707. In Hunt v. Hunt, 72 N. Y. 217, Justice Folger says:

“ I think that the result of the decisions of this state at this time is this: That when courts of another state have jurisdiction of the subject-matter and of the person, they are to be credited collaterally; that jurisdiction of the subject-matter is to be tested by the powers conferred by the constitution and laws of the other state; and that, as to jurisdiction of the person, the}’- go no further against it than that if the defendant is a domiciled, citizen of this state, jurisdiction of him by the courts of another state is not acquired save by personal service, of process or his voluntary appearance.”

It seems to be conceded by the parties to this proceeding that the district courts of Dakota territory had jurisdiction in a proper case to decree a valid divorce. Under the decisions of the highest court of this state, the Dakota courts acquired jurisdiction of Oharlettie D. Bruyn by her voluntary appearance there, and submitting her sworn answer in the action there pending against her.

Belief from the decree of that court, if oppressive to her, should have been sought in the forum to which she, of her own volition, submitted her rights. It is too late, after the lapse of 12 years, for her to come into the courts of her own state, and ask to have the judgment obtained in Dakota set aside in a collateral proceeding. Either Bichard G-. Bruyn was legally divorced, and his first wife knew it, and acquiesced in it, or else she maintained a strange quiet and reticence for 12 years, within a few miles of where her husband resided with another woman,- claiming to be his wife, and rearing another family of children. The number of her sect who would quietly submit to treatment of that kind, if her claim is correct, is small, and under the awakening spirit of asserting and maintaining their rights, now so prevalent, the proportion is not likely to increase. It was held in Re Estate of Ensign, 103 N. Y. 284, 8 N. E. 544, that a divorced Avife, whether the divorce Avas granted because of the misconduct of herself or her husband, is not entitled, if he die intestate, to administration, or to a distributive share of his personal estate. I consider that the decree of divorce, by her voluntary appearance and submission to the Dakota jurisdiction, presents an insuperable barrier to the issuance of letters of administration in this estate to Charlettie D. Bruyn.

The marriage of Bichard G-. Bruyn and Charlotte A. Wilsie in the state of Connecticut was in conformity to the laws of' that state, and the validity of such a marriage contract is to be determined by the laws of the state where it was entered1 into. If valid there, it is to be recognized as such by the courts of this state, unless contrary to the prohibitions of natural kuw or the express provisions of a statute. Van Voorhis v. Brintnall, 86 N. Y. 18 ; Thorp v. Thorp, 90 N. Y. 602; Moore v. Hegeman, 92 N. Y. 521.

From such examination of the authorities as I have been able to give, and from my opinion of the laAV applicable to this case, I have concluded that letters of administration upon the goods, chattels, and credits which Avere of Bichard Gr. Bruyn, deceased, should be issued to Charlotte A. Bruyn upon her filing a proper bond, and an order may be handed up to that effect.

Ordered accordingly.


author: GLASS, S.

text:
    In the Matter of Petition to Revoke Letters of Executor of Lucius Gleason, Deceased.
    (Surrogate’s Court, Onondaga County.
    July, 1896.)
    1. Executor—Revocation of letters testamentary—Misconduct.
    It is “misconduct” rendering the executor “ unfit"’ for the execution of his office, for which his letters maybe revoked (Code Civ. Proc. § 2685, subd. 2), where he claims the benefits of a contract between himself and testator, as to which there was strong evidence that testator was of unsound mind at the time of its execution, and by which the executor secured great pecuniary advantage, to the detriment of the estate.
    3. Revocation of letters testamentary—Incompetency—Disqualification.
    Such conduct, however, does not render him “ incompetent ” or “ disqualified,” within subdivision 1, to act as executor.
    Petition by William Gleason to revoke letters testamentary issued to Henry Lacy as executor of the will of Lucius Gleason, , deceased.
    Hiscock & Doheny, for petitioner; Edwin S. Jenney and Louis Marshall, for respondent.
   GLASS, S.

—The will of the decedent, executed on the 20th day of December, 1892, made no disposition of his estate, but simply appointed Henry Lacy, his nephew, as executor, and gave to him the power to sell, mortgage, and lease the real estate. Mr. Lacy is not one of the next of kin or heirs at law: Hpon the probate of the will, letters testamentary were issued out of this court to the executor named. The petitioner in this proceeding is a brother and one of the next of kin of the decedent, and prays for a decree revoking the letters testamentary upon allegations of facts which he contends establish cause for such removal upon grounds recited in section 2685 of the Code of Civil Procedure as cases in which a surrogate’s court may revoke letters testamentary and of administration. It is claimed by the petitioner that the proofs show, under subdivision 1 of section 2685, that the executor is incompetent and disqualified by law to act as such; under subdivision 2, that by reason of misconduct in the execution of his office, and dishonesty, he is unfit for the due execution of his office; and under subdivision 5, that his circumstances are such that they do not afford adequate security to the 'creditors or persons interested for the due administration of the estate. The proofs which it is claimed support the allegations of incompetency, disqualification, misconduct, and dishonesty relate chiefly to the alleged fraudulent claim on the part of the executor that he is the owner, individually, of a large block of the shares of the capital stock of the Third National Bank of Syracuse, which it is urged.really belong to the estate ; to the alleged fraudulent acts of the executor in procuring the surrender and cancellation by the testator, shortly before his death, of the executor’s individual notes then held by the testator, representing the value of said stock, in procuring the execution by the testator at the same time of a contract providing for such surrender and cancellation, confirming the executor’s individual ownership of the stock in question, and accepting in place of the notes in question a new note made by Mr. Lacy for the value of such stock, payable without interest 10 years thereafter, with the privilege of payment at any time with a discount of interest ■ for the unexpired portion of said 10-year period, and in now claiming and insisting upon, individually, all the benefits of such alleged fraudulent surrender and cancellation of notes, and of such fraudulent contract.

It is contended by the petitioner, on the one hand, that the evidence brought forth in this proceeding shows that 1,697 shares of capital stock in the Third National Bank in fact belonged to the testator at the time of his death, and that Mr. Lacy’s apparent ownership was not real, but colorable merely; that there ivas a secret understanding between him and the decedent that he ivas holding them for the benefit of the testator, as a means of avoiding taxation, by having them stand on the bank books in Mr. Lacy’s name, and at the same time having Mr. Lacy’s note for their value outstanding in Mr. Gleason’s hands, or for some other reason sufficient to Mr. Gleason’s mind, but that Mr. Gleason never intended that Mr. Lacy should really own the stock. It is also insisted by the petitioner that, even if the ownership of the stock in Mr. Lacy ivas real, Mr. Gleason ivas at the time of the execution of the contract of December 25, 1892, of unsound mind; that he had reached a stage in the progress of his fatal disease where he was no longer able to transact business, and that consequently that contract, and the surrender and cancellation of the old notes, were and are fraudulent and void as against the estate; and that the acts and attitude- of the executor in insisting, since he has been executor, upon his claim that he owns the stock in his individual capacity, and that he is entitled to the advantages of the contract and the cancellar tion of his notes, constitute incompetency, disability, misconduct, and dishonesty, within the meaning of the statute in question. The respondent executor, on the other band, contends that his ownership of the bank stock was always, and is now, real, and not merely nominal, and that the stock is his individual property; that the decedent was of sound mind at the time of making the, contract in question ; that the contract and the accompanying surrender of his notes and the substitution of another were valid transactions ; and that consequently he has committed no act as executor which renders him incompetent or disqualified, or on account of which he may be said to have been guilty of any misconduct or dishonesty which renders him unfit for the due execution of his office.

Mr. Gleason died from diabetic coma on the 3d day of January, 1893. Gangrene in the toes of one of his feet was associated with the diabetes. He had taken to his bed about a month previously, and at times suffered intense pain in the foot where the gangrene was located. Although at times improved in condition, it is apparent that he gradually wasted away, until finally he sank into the coma which overwhelmed him. Just when the disease had so far progressed as to render him mentally incompetent is a "point in dispute. I am satisfied it had not reached that stage down to and including the 20th of December, and have so found as a fact in a proceeding for the revocation of the probate of his will which has been carried on contemporaneously with this proceeding. Mr. Gleason had never married, and his surviving next of kin and heirs at law are his brothers and sisters, and the children of a deceased brother and a deceased sister. His start in life was humble, but he had accumulated a large fortune, which may be approximated at about $500,000 in real estate, and, according to the inventory filed in this court by the executor, $330,000 in personal property. It is alleged in the petition, and admitted by the answer, that his debts at the time of his decease amounted to upwards of $500,000. I do not recall that it appears in the proofs how much of this indebtedness, if any, was secured by pledges of personal or mortgages on real property, nor is that question very important. In his will, made on the 20th of December, 1892, he made no distinction between his relatives as sharers of his fortune, but left the laws of descent and distribution to divide his property among his heirs at law and next of kin. Among the personal property left by the testator were 474 shares of stock of the Third National Bank, conceded to belong to the estate. For many years up to 1888, Mr. Gleason had been the president of that bank, and had given much of h:s time and attention to its management. In the year 1888 he was deprived of that position by a board of directors elected by stockholders hostile to him and his management of the bank. Without question, it was to him not only a total surprise, but a cause of great grief; but with characteristic tenacity of purpose, he at once set about to regain control of the bank by buying either for himself or his friends enough stock to control, in co-operation with stockholders already friendly, the next election of directors. He was successful, and at the next election, in 1889, he and his friends were reinstated in the control of the bank. He was elected president, and his nephew, Mr. Lacy, cashier. Mr. Gleason had apparently become very'bitter in his feelings toward those who had ousted him from his position, as he thought, without doubt, very unjustly, and he took great satisfaction in being able to regain what he had lost; and, without any doubt, he became thoroughly determined that he and his friends should continue in the management of the bank, and that those hostile to him should have no chance to regain its control. Mr. Lacy had by this time become the testator’s chief assistant in the management of the bank, and had gained the testator’s trust and confidence. He was born and brought up in Liverpool, the testator’s place of residence, ■and, when a young man, had embarked in a mercantile business in Chicago which proved disastrous, and in 1875, at the age of 30, came back to his old home, and, to his great credit, began at the bottom again, as a common laborer, at work furnished by or through the influence of, his uncle. In 1879 he was taken into the bank as discount clerk, at a salary of $500 a year. In a year his salary was raised to $700 a year, which continued about six months, and was then raised to $800. About 1883, he was put upon the books at a salary of $1,000. This salary continued until 1889, when his salary was raised to $1,500. He was then made cashier, at a salary of $6,000 per year, the salary being fixed by the president, and ■on January 1, 1890, Mr. Gleason increased Mr. Lacy’s salary to $1,000 a month, and that rate of salary has since continued. Mr. Lacy is a man of-comparatively small means. On the 25th day of December, nine days before the testator’s death, there were 1,697 shares of the stock of the Third National Bank standing in the name of Henry Lacy. The contract hereinafter referred to recites that it was all sold and delivered by Mr. Gleason to Mr..Lacy, in various amounts, at different times, between December 1, 1883, and the time of the making of the contract. The evidence shows that some portions of the stock were never in Mr. Gleason’s name, but were transferred directly to Mr. Lacy by the former holders. It appears from the evidence that a small portion of these 1,697 shares were an issue of new stock, as an increase of stock, npon the holding concededly Mr. Gleason’s, and the holding standing in Mr. Lacy’s name, and that it was made directly to Mr. Lacy. Mr. Lacy testifies somewhat differently from the recitals of the contract as to the dates of his acquiring at least a portion of this stock. He says from-reference to the stock book, that the transfers to him were made as follows: December 1, 1883, 10 shares; February 27, 1881, 250 shares; November 30, 1888, 312 shares; January 3, 1889, 96 shares ; January 22, 1889, 25 shares; June 8, 1889, 25 shares ; November 4, 1889, 10 shares; December 2, 1889, 5 shares,—and, in addition to this, the increase of stock and Van Burén stock. All this stock Mr. Gleason furnished the money to pay for. As the respondent claims, all Mr. Gleason had to show for the large amount of money representing the purchase price or the value of these 1,697 shares of stock were Mr. Lacy’s individual promissory notes, payable without interest, but on demand, w hether these notes were in fact secured by a pledge of the ;stock, or not, does not satisfactorily appear. On the 25 th of December the testator and Mr. Lacy executed the following contract, which had been drawn up by Mr. Marshall, the testator’s counsel, on the preceding day:

“ Memorandum of an agreement entered into this 24th day of December, 1892, between Lucius Gleason, of Liverpool, N. Y"., party of the first part, and Henry Lacy, of Syracuse, N. Y., party of the second part, witnesseth: Whereas, heretofore, on the first day of December, 1883, -the party of the first part sold and delivered to the party of the second part 10 shares of the capital stock of the Third National Bank of Syracuse, at a price o'f $133-1- per share; thereafter, on the 21st day of September, 1889, 748 shares of said stock, at the price of $133-^ per share; thereafter, on the first day of .May, 1890,775 shares of new issue of increased stock of said bank, and certain stock purchased from the estate of Harmon W. Yan Burén, at $100 per share ; and from time to time 164 shares of said stock in addition at the price "of $100 per share; making in all 1,697. shares of said stock. And whereas, it was expressly agreed between the parties hereto at the time of sale and delivery of said stock, as part of the contract, that the party of the second p>art should have ample time to pay for such stock, so that the-purchase price thereof should practically be paid out of the dividends that might be declared thereon, the party of the first part appreciating that said party of the second part could not otherwise afford to pay for such stock the price so fixed therefor. And whereas, it has been the policy of the party of the first part, in the management of the said Third National Bank, to defer the payment of dividends on its stock, and as a consequence the party of the second part has been unable to make such payments, and it is now deemed-desirable by the parties hereto that a specified term for the payment of said stock should be fixed, and that the party of the first part should be secured for the payment thereof. And whereas, the party of the first part, fully appreciating the services of the party of the second part in its Behalf, is particularly desirous of making the terms of payment liberal and advantageous to the party of the second part: Now, therefore, in consideration of the premises, and of the payment of the sum of one dollar-by each to the other, and of the mutual covenants herein contained, the parties hereto mutually agree as follows : (1) The party of the second part is to execute and deliver forthwith to the party of the first part his promissory note for the sum of $194,966.66, which is to become payable in .ten (10) years from the date hereof, without interest. (2) The party of the second part agrees that the party of the first part shall have a lien byway of collateral security upon said 1,697 shares of the capital stock of the Third National Bank, and that he will hold said stock as the agent of the party of the first part to the extent of the lien of the latter upon said stock: provided, however, that in case he shall, at the request of the party of the first part, pledge such stock for the benefit of the latter, the possession of such pledge shall be deemed the possession of the party of the- second part under the terms of this agreement; it being understood that in case any stock so pledged for the benefit of the party of the first shall not be returned to the party of the second part, without expense to him for the redemption thereof, the amount paid to redeem such stock, or, in case of the failure or inability of the party of the second part to redeem the same, the sum of $133¿ for every share not returned, shall be credited upon said note. (3) The party of the second part shall have the right at any time before the maturity of said note to anticipate the payment of the whole or any part of the principal thereof, and shall, upon such payment, be entitled to a discount from such principal at the rate of six percent. per annum for the unexpired term of said note. In case a part only of said principal is paid, the party of the second part shall be entitled to the possession of such proportion of said stock, 'freed from all' claims thereon as collateral security, as the anticipated payment plus the discount deducted from the principal of said note by reason of such payment bears to the face of said note. (4) This agreement shall inure to the benefit of, and shall be binding upon, the personal representatives and assigns of the respective parties hereto. In witness whereof the parties hereto have hereunto' affixed their hands, the day above written.

[Signed] “ L. Gleason.
Henry Lacy.
“ Witnesses:
“ H. L. Eisner.
“ Louis Marshall.”

The contract was drawn by Mr. Marshall, as he testifies, in pursuance of instructions given him by the testator on one or both of two visits made by Mr. Marshall to Mr. Gleason,—one on the occasion of the execution of the will, the 20th, and the other on the 24th of December. On one of those occasions the testator had caused to be produced to Mr. Marshall the notes made by Mr. Lacy, and held by Mr. Gleason, representing the value or purchase price of the 1,697 shares of stock, amounting to $194,000, for the purposes of computation, and for the purpose of preparing the contract. They were not, in fact, surrendered to Mr. Lacy until the 25th of December, and on that, day Mr. Lacy’s new note for $194,000, payable 10 years from date, without interest, was delivered to Mr. Gleason in place of the demand notes surrendered. The important feature of the contract is that it makes the new note due 10 years hence,, without interest, and with privilege of paying it up at any time with a discount of interest, so that Mr. Lacy could, and actually has, as he testifies, paid the $194,000 by the payment of the present value of $194,000 payable 10 years hence. His inventory filed in this court, of which in this proceeding I may take judicial notice, returns the present value of the note as $78,181.64; so that if that computation is correct his uncle, on the 25th day of December, in effect, made a present to him of $122,000. The validity of the contract, and of the surrender of the old notes and' the substitution of them by the new one, is assailed upon the ground that Mr. Gleason was, at the time of that transaction, of unsound mind. Whether or not this court may, in this proceeding, for the purposes of this proceeding, pass upon that question, or upon the question whether Mr. Lacy Avas the real owner of the 1,697 shares of bank stock •at the time of the execution of the contract, there is an evident impropriety in so doing, unless necessary to a proper determination of this proceeding. I do not deem it necessary to do so. I am satisfied from the eAudence that there are serious grounds for believing that Mr. Gleason Avas, on the 25th of December, 1892, the real owner of the 1,697 shares of stock, in the sense that he had some claim or lien upon them ■ as security for the outstanding notes of Mr. Lacy." The improbability which naturally suggests itself, that any man of Mr. Gleason’s experience and strict business habits >vould furnish the sum of $194,000 to buy stock to be oAvned by another, and simply take his promissory notes for that amount, without any lien or security upon the stock itself; the fact that, Avhile dividends were paid, they Avere credited to Mr. Lacy, and by him' immediately turned over to Mr. Gleason, without being credited upon the notes; the fact that Mr. ■Gleason from time to time did in fact pledge large portions ■of this same stock for loans made for his individual benefit (although precaution was taken in such instances to procure a written concession from Mr. Gleason to Mr. Lacy’s ownership, and a guaranty against loss),'—these are some of the circumstances and considerations which cast suspicion upon Mr. Lacy’s claim to unlimited ownership of the stock. There are still more serious grounds for believing, from the evidence presented, that when the contract of December 25th was executed Mr. Gleason was of unsound mind, and mentally incompetent to transact any business, and, consequently, that the contract •and surrender of notes were null and void as against the testator’s estate and the persons interested in the estate. I am not unmindful of the force of the testimony both of Mr. Marshall, the counsel, and of Dr. Eisner, the physician, of the testator, who were present when the contract Avas signed by Mr. Gleason, and Avho attested it as witnesses. The circumstances attending the execution of the contract, as related by ‘ Mr. Marshall and Dr. Eisner, Avill, without question, go a •great way Avith Avhatever tribunal shall finally pass upon the Avorth of the contract, towards establishing its validity. According to their testimony, hoAvever, Mr. Gleason was a very sick man at the time, and there is a noticeable meagerness of detail in their account of things said by Mr. Gleason on the occasion. • The things done by him were fewer still. According to Mr. Marshall, the only things said by Mr. Gleason Avere as follows:

“ The testator and I exchanged greetings. I asked him how he felt. He said he- had been having pain, and he Avasn’t as well as he AA7ould like to feel. He talked about his toe,—his foot. The doctor, I think, asked him how he felt,—whether he had eaten any nourishment. I think he said he hadn’t eaten much; didn’t have any appetite. I said to Mr. Gleason that I had prepared the contract that he desired me to prepare, and I had shown it to Mr. Lacy; that he was satisfied with the terms of it; and that he had signed it. I asked him whether I should read it. He said, ‘Yes, go on and read it;’ and I read it to him. I think he asked me to repeat the total amount of the notes, one hundred and ninety-four thousand and some odd dollars, and he says, ‘Yes; that is right,’ repeating the amount; and he then, after it was all read, said: ‘ I am ready to sign .that. That is all right.’ I went into the other room, and got paper and pen and a book. Dr. Eisner then raised him partially in bed and he signed his name. He wasn’t in a very comfortable position. I asked him if he wanted us to witness it, and he said, ‘Yes.’ I had the note with me, signed by Mr. Lacy. I delivered it to Mr. Gleason. Think he either told me to put it in that pocketbook he had in the other room, or asked me to take care of it for him.”

Dr. Eisner narrates the following things said by Mr. Gleason:

“ Mr. Marshall read over the contract to Mr.' Gleason in my presence, and Mr. Gleason asked Mr. Marshall and myself to witness it. Before I signed it I asked Mr. Gleason whether he understood what it was, and I think either Mr, Marshall or myself read it over to him again, and after the paper was read to him he turned around and said to Mr. Marshall, ‘ Louis, how much did you say those notes were ? ’ Mr. Marshall then told him the amount of the notes, and Mr. Gleason said then: ‘ That is right. I will sign the paper.’ And he did sign it in our presence, and we witnessed it.”

Questioned as to the testator’s mental capacity at that time and before, Dr. Eisner testified that he was perfectly clear on all subjects—an unusually clear man for one of his years— .and, in his opinion, comprehended business matters perfectly. The physician also testified in the case that the heart of the patient commenced to show signs of flagging on the 28th or :29th, and that the coma commenced on the 31st of December. Against the physician’s opinion of the mental condition of the decedent at the time of the execution of the contract, and .against the inferences of mental capacity to be drawn from the facts related by him and Mr. Marshall, the mute testimony revealed in the signature of Mr. Gleason to the contract weighs heavily. As compared with his ordinary signature— one of rare symmetry and precision—the signature to the contract was a mere scrawl, and at once suggests grave suspicions, not only as to the physical, but as to the mental condition of the one who made it. The testimony in the case which in my •opinion particularly points to an enfeebled condition of mind ot the decedent on the 25th of December is that of Lewis A. Hawley and Thomas Molloy. Both of them were long-time and somewhat intimate friends of Mr. Gleason. They had together called upon him in his sick room on Sunday, the! 18th of December, and had found him in unusually good spirits, and passed some time in social conversation with him, and left him with the promise that they would call again and have another visit with him the next Sunday. They called at the-house on the 25th, either in the middle or the early part of the afternoon. They were met at the door by Mr. Lacy himself, and as they were starting to exchange with him the customary greetings of the day, Mr. Molloy spoke in rather loud voice, and Mr. Lacy sto¡Dped him, held up his hand, and said l “ Sh! you mustn’t speak so loud. There has been a great change since you were here last.” They were not immediately admitted to the sick room. On Mr. Molloy’s expressing a wish to see Mr. Gleason, Mr. Lacy conducted him to the bedside, and Mr. Hawley followed, stopping at and standing in the doorway of the sick room, in full view of Mr. Gleason, and about eight feet from his bed. Mr. Molloy stepped to the bedside, and Mr. Lacy, speaking to Mr. Gleason, said, “ Here is Mr. Molloy to see you.” Mr. Gleason opened his eyes, and either he took Mr. Molloy’s hand, or Mr. Molloy reached down and took Mr. Gleason’s hand, which was lying outstretched at his side; and probably, from the evidence, the latter was the case. lie was lying on his, back, with his eyes ° closed, when Mr. Molloy entered the room. Mr. Molloy greeted him, but he made no reply, although he opened his eyes, and, as Mr, Molloy thinks, recognized him, but quickly closed them, and at times during the interview, of four-or five minutes’ dura- , tion, opened and quickly closed his eyes. Mr. Molloy swears there was no movement of Mr. Gleason’s hand when he took hold of it; his hand was limp. Mr. Hawley is very positive that Mr. Gleason did not say a word during the whole interview, unless it was an exclamation when Mr. Molloy first spoke to him. He did not think he comprehended what Mr. Molloy said to him. He did think Mr. Gleason heard it. Mr. Gleason did not recognize Mr. Hawley at all while he was , there. After standing at the bedside four or five minutes trying to console with' Mr. Gleason, Mr. Molloy said, “ Goodbye,” and left in company with Mr. Hawley. Mr. Hawley says that Mr. Gleason was in a stupor, according to his understanding of the term “ stupor.” He looked badly and haggard,, as a sick man usually does.- Mr. Molloy says that he looked .as though he were in considerable pain—“a terrible 'hard pain.” Mr. Molloy testifies that he does not recollect of Mr. Gleason’s speaking at all while he was there, and that he- does not think he did. All this, it will be borne in mind, was only six hours, or such a matter, before the execution of the contract in question.

Upon the testimony above redited, taken in connection* with the character of the testator’s signature to the contract itself, and all the facts and circumstances proved, I am forced to find,.as above stated, that there are grave grounds for believing that the testator on the 25th day of December, 1892, did not have sufficient mental capacity to make any valid contract, and that, consequently, there are serious grounds for believing that the contract of that date, and the surrender of the old notes of Mr. Lacy, which accompanied the making of the contract, were void as against the estate of Mr. Gleason; and I am obliged to find further that Mr. Lacy himself, ever since the letters were issued to him, has been personally cognizant of Mr. Gleason’s doubtful mental condition on the 25th of December, and of all the facts and circumstances which make the validity of the contract and surrender of notes a matter of .serious doubt! If the transaction between Mr. Gleason and Mr. Lacy on the 25th of December had been between Mr. Gleason and some person other than Mr. Lacy, it would be the duty of Mr. Lacy, as executor, once being made aware of the facts, to bring action to set aside those transactions, and the court would quickly revoke his letters testamentary if he did not bring the action. The same obligation which would require the executor to bring suit against another to have the contract set aside as fraudulent requires that he should not, in his individual interest, claim and insist upon the benefits of such contract as against the interests of the estate which he represents. I think it was his plain duty, if he wished to enforce the contract in question against this estate, long ago to have renounced his rights to the executorship; and I think that his insistence upon the advantages of the contract, and of the surrender of his old notes, since the date of the issuing of letters testamentary to hizn, has been a continuing act of misconduct, if not dishonesty, within the meaning of subdivision 2 of section 2685, which renders hizn unfit for the due executiozi of his office. His acts of participation at the time in znaking or procuring the contract to be made, whatever they were, were not misconduct, within the zneaning of the statute, for the reason that he was not thezz executor. Hor does his claizning the benefits of the contract and tz’ansactions of December 25th render hizn “ incompetent or disqzzalified by law to act as exec-, utor,” within .the meaning of subdivision 1 of section 2685. Those terzns have a technical meaning, not at all applicable to the facts of this case.

The question is now presented whether the acts of Mr. Lacy, in insisting izpon all personal benefit cozning frozn the trazzsactions with Mr. Gleason whose validity I have found to be clouded in doubt, constitute znisconduct which renders hizn unfit for the due execution of his office, so that he zzzay be reznoved by the szzzTOgate’s court. That a court of equity would remove a trustee for such a cause is well settled. In Re Cohn, 78 N. Y. 249, was an appeal from an order of the gezieznl terzn of the court of coznznou pleas of the city azid county of Hew York, which affirzned an order of a judge of the court of coznznon pleas, sitting as a court, reznoving for “misconduct ” an assignee for the benefit of creditors under chapter 466 of the Laws of 1877. Under that statute the only causes-for removal are “ misconduct of incompetency.” Earl, J., said in his opinion:

“ The sole question, therefore, is whether there was sufficient, cause to authorize the removal of the assignee by the judge. He could be removed for misconduct or incompetency. We-think a sufficient case was made to authorize his removal on. either ground. There are grounds for believing that the judgment obtained against the assignor for the benefit of his wife was, to a large extent, fraudulent; that it was procured upon claims in large part fictitious, for the purpose of absorbing the-assignor’s estate and keeping it from his just creditors. In procuring this judgment the assignee was the adviser, counsel,, and active agent of the wife; and it may be assumed that he-knew the facts upon which it was based, and the purjDoses for' which it was obtained. Under his direction an execution was-issued upon the judgment five days before the assignment was made, and levied upon property worth about $28,000; and four days after the assignment this large amount of property, with his co-operation, was sold for about $9,000, and the proceeds paid to the assignor’s wife. He made no efforts to arrest the sale or the proceeds, and, knowing what he did of the facts, he could not omit such efforts without being guilty of misconduct. * * * We do not mean to determine that, the judgment was absolutely fraudulent, and that it could certainly have been set aside. All we mean to say is that the facts upon which it was based, and the circumstances under which it was obtained, were such that an assignee cognizant of the facts could not stand by and suffer the whole trust estate to be swept away without any efforts to avoid such a calamity. The creditors were entitled to an assignee who could impartially, and without any violation of duty which he owed to others, assail that judgment and the sale made under it. The words 1 misconduct ’ and ‘ incompetency,’ as used in this statute, have no technical meaning. The two were intended to embrace all the reasons for which an assignee ought to be removed. The power of summary removal conferred upon the county judge, sitting as a court, was intended to be as broad as the exigencies of the case might require. This power could not be less than that possessed by a court of equity and that, upon such facts as exist here a court of equity would have power to remove a trustee, cannot be doubted. 2 Perry, Trusts, §§ 817, 818.”

The challenge of the power and jurisdiction of the surrogate’s courts to revoke the letters testamentary of administration for the cause found to exist in this case raises an interesting question. Surrogates’ courts are courts of limited jurisdiction and powers, and have only such as have been conferred by the legislature. Under the Revised Statutes the-surrogate could supersede letters testamentary where an executor had become incompetent by law to serve as such, or where his circumstances were so precarious as not t<j afford adequate security for his due administration of the estate, or where he had removed, or was about to remove, from the state. 2 Rev. St. 72, § 18. And a surrogate might revoke letters of administration issued, if a will was subsequently proved. 2 Rev. St. 78, § 46. Letters might be revoked for failure to make and return inventory, if the summons issued in proceedings to compel inventory could not be served personally, by reason of the executor’s or administrator’s absconding or concealing himself. 2 Rev. St. 85, § 19. Chapter 460 of the Laws of 1837 provided that letters might be revoked for failure to give new sureties, or by reason of false representations made by an administrator on the application for letters, and whenever it should appear that an administrator or executor had become imcompetent by law to act as such, by reason of drunkenness, improvidence, or want of understanding, and in case a woman married after being appointed as executrix or administratrix, or whenever it should appear that the penalty of the bond taken from an executor or administrator was inadequate in amount, and a new bond was not given. Chapter 288 of the Laws of 1846 provided that letters might be revoked for failure or refusal to appear and account. Such were the grounds for which a surrogate might revoke letters in force when the Code of Civil Procedure went into effect. By reference to section 2685, and the sections relating to the giving of new sureties, it will be seen that all causes for revocation of' letters existing at the time the Code of Civil Procedure was passed were, with some verbal changes, re-enacted in the Code, and that some new ones were added. The substantial addition was the provision for revocation contained in subdivision 2 of section 2685, viz.:

Where by reason of his having. wasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by. law * * * or by reason of other misconduct in the execution of his office, or dishonesty * * * he is unfit for the due execution of his office.”

It is plain that by this enactment the legislature intended to confer upon surrogates’ courts somewhat larger jurisdiction in the matter of revoking letters than the surrogates had previously possessed. Besides making personal dishonesty a new cause for removal, as drunkenness,” improvidence,” and want of understanding ” had theretofore been, and after specifically making acts of wasting or improperly applying the money or other assets,” and investing money in securities unauthorized by law,” new causes for removal, and retaining ce improvident management or injury ” of the estate’s property as a cause for removal, the legislature provided that “ unfitness for the due execution of his office by reason of other misconduct in the execution of his office,” shall constitute a ground for the revo■cation of letters. What did the legislature mean by the phrases “ unfit for the due execution of his office,” and other miscon’duct in the execution of his office ? ” May it not be said with great reason that the legislature intended by that broad .and general language to include all causes for the removal of an executor or administrator growing out of his own conduct and attitude towards the estate • for which he ought in good conscience to be removed, but which, on account of the technical definitions which the courts had irrevocably attached to the terms “incompetence,” “ improvidence,” “ disqualified,” and the like, had not, up to that time, been causes for which a surrogate could remove an executor or administrator; in short, to confer upon surrogates’ courts, in respect of misconduct and unfitness growing out of it, the same power which courts of equity have to remove any trustee. May it not, with good reason, be said that the legislature intended to make removal possible and proper in any case where the interests of the representative as an individual and as an executor are diametrically opposed and thoroughly hostile upon an important matter affecting the rights of the estate and those interested in it ? It is my opinion that the legislature did so intend, and that the term misconduct,” as used in the Code, has precisely the same meaning as the same word “ misconduct ” in the statute of 1877, governing the removal of assignees. But, whether or not the extensive jurisdiction of a court of equity to remove a trustee of an express trust for misconduct on the part of the trustee was intended by the legislation in question to be given to surrogates’ courts in cases of executors and administrators, the supreme court, in our own department, has, as it seems to me, construed the statute in question, and defined the term misconduct ” in a manner which requires of this court the conclusion of law that the acts of Mr. Lacy are misconduct rendering him unfit for the due execution of his office. In Re West’s Estate, 40 Hun, 291, was an appeal from a decree of the surrogate’s court of Oneida County, made upon the report of a referee, revoking the letters of an administratrix. The principal misconduct alleged- and proved in that case was that the administratrix made claim that she individually owned certain personal property, which the petitioner claimed belonged to the'estate, refused to inventory it, and forbade the appraisal of it. The petition also alleged, in general terms, that the administratrix, by reason of her misconduct and dishonesty in the execution of her office, was disqualified and unfit for the due execution of her office. The burden of the petition and of the proofs, as I gather from the appeal book, was' the claim of individual ownership made by the administratrix, and her refusal to inventory the property in dispute. The referee found, as to some of the property, that it belonged to the decedent’s estate, and not to the administratrix individually, and found that she was guilty of misconduct warranting her removal: (1) In claiming and receving certain personal property as administratrix, and subsequently assuming a different and hostile attitude in relation to the ownership of the same property, claiming that it belonged to her individually, and certain other persons; (2) In setting up and claiming title individually to certain other property, which the referee found to belong to the estate, thereby placing herself in conflict with and in antagonism to the trust estate, which she was in duty bound to protect, and which she represented.” The proofs taken in that case did not, as I read them, disclose any other substantial ground for which any court was likely to remove an executor or administrator. At most, it consisted of having shown too much temper, and having used rather harsh language towards the next of kin. In disposing of the appeal from the decree confirming the referee’s report, and revoking the letters, Hardin, J., says:

“ Hotwithstanding the fact that Mrs. Jones, in her own behalf and in behalf of her sisters and brothers, claimed a larger portion of the personal property under the will of their father, and that it did not pass to the intestate, and that she was not the owner of it at the time of her death, she might have consented to the inventory of the property, with reasonable and suitable notice that she insisted that it did not belong to the intestate; but, on the contrary, she stubbornly refused to have it inventoried or appraised, and the evidence taken before the surrogate furnishes strong ground for the assertion that she has been guilty of misconduct in the execution of the office of administratrix, and an inspection of the evidence leads naturally to the conclusion that, by ‘ reason of misconduct in the execution of her office, she has become unfit for the due execution of the office.’ * * * Without passing upon the question of whether the claim set up by Mrs. Jones in her own behalf, and that of her brothers and sisters, was valid, or whether the personal property which was the subject of dispute at the time the appraisers assembled was the property of the intestate or not, we are of the opinion that the evidence abundantly supports the decree pronounced by the surrogate revoking letters of administration issued to Mrs. Jones.”

If I am right in assuming that the evidence taken before the surrogate, referred to by the learned justice who wrote the opinion as showing misconduct, was in part at least the evidence as to the individual claim to ownership set up by the administratrix, it logically and necessarily follows from this decision that the supreme court thought that the legislature inter.dib, by the use of the terms “ misconduct” and “unfit” in the statute in question, to confer upon surrogates’ courts the pou or to remove an executor or administrator in any case where his acts, interests, claims, and attitude as an individual in any matter affecting the estate are so hostile and antagonistic to the interests of the cestuis que trustent that a court would readily conclude that he ought not to be permitted to repre- • sent both himself and the estate. This judgment of the supreme court was affirmed by the court of appeals. 111 N. Y. 687 ; 19 S. R. 931. The court of appeals has also passed upon the question as I think, at least incidentally. In the case of Lichtenberg v. Herdtfelder, 103 N. Y. 306, 3 S. R. 91, Earf, J, says :

“ The lands, although conveyed. by the testator in his lifetime, were assets which could be appropriated for the'payment of his debts. Laws 1858, c. 314. If the facts stated in the complaint are true, it is the duty of the executors to pursue the real estate, and reclaim it for the benefit of the persons interested in the estate of the testator, and no one creditor can appropriate it for his sole benefit. * * "x" That the fraudulent grantee is one of the executors furnishes no insurmountable obstacle. If she should refuse to restore the lands to the estate, she could be removed from her office of executrix, and then the remaining two executors could, under the act of 1858, disaffirm the conveyances of the real estate, and bring action to set them aside.”

The learned judge does not say that the surrogate’s court could remove her for the cause mentioned, but that is the fair inference, as the case was decided six years after the Code of Civil Procedure went into effect. The case of In re Moulton’s Estate (Sup.), 10 N. Y. Supp. 717, has been cited by counsel for the executor as 'an authority for his contention that the surrogate’s court has no power to revoke these letters. In that case the letters had not been revoked, but the petition for revocation was dismissed; and the general term held that the decision of the surrogate was correct, and his discretion wisely , exercised. Apparently in answer to the argument of the petitioner’s counsel that unless the administrator was removed, and a new one appointed, who could bring this action to set aside the transfer of property made by the decedent in his lifetime, alleged to have been fraudulent as to creditors, the petitioner, claiming to be a creditor as well as one of the next of kin, would be remediless, the court said (Hardin, J.) :

“ The learned counsel for the appellants, in a very exhaustive argument submitted to us, lays great stress upon the circumstances attending the transfer of a mortgage for $8,650 by Symonds, as assignee, to the plaintiff, and to the fact that she had commenced an action to foreclose that mortgage, and had omitted to place the same upon the inventory filed, and seems to suppose that her removal from the office of administration was essential in order to enable appellants, as heirs at laAV or as creditors of the deceased, to contest the title of the plaintiff to the mortgage, and to enable them to assert that the mortgage in fact Avas an asset belonging to the estate of the deceased. He calls our attention to the statute of 1858, c. 314. * * * Surely, upon creditors applying to the administratrix to bring such action, * * * she Avould be called upon to yield to the request, or to make a refusal: If she refused, then the creditors could bring an action, and make her a defendant in her representative as well as her individual capacity, and allege her refusal to bring the action, and'thus the creditors Avould have the full benefit of the provisions of the statute, to the same extent as though the action had been brought by the administratrix. "We are of the opinion that the removal of the respondent from the office of administratrix was not necessary to enable the appellants, as creditors, to maintain proper action to avoid the alleged ownership by the plaintiff of the mortgage, on the' ground that it was the property of the deceased, and that the transfer thereof to the plaintiff was fraudulent.”

And the learned judge cited numerous authorities. The court did not in the slightest degree recede from the position it had taken in the earlier case of In re West. Without doubt, the petitioner in this proceeding, or any of the next of kin, could bring suit against Mr. Lacy, individually and as executor, to test the title to the 1,691 shares of the bank stock, to cancel the contract of December 25th, or to annul the surrender of the old notes; but, under all the facts and circumstances of this case, should the next of kin of Mr. Gleasón be shut up to that remedy ? Ought not this court, called upon to protect the interests of all persons interested in the estate, to see to it that an opportunity is afforded to this estate, as an estate, through its legal representative, to bring a test of the important questions in controversy between it and its executor in a court of the largest jurisdiction and most ample remedies ? The amount involved alone, if there were no other distinguishing features, takes this case out of the ordinary class of cases, in which, on account of the smallness of the amount involved, a court might reasonably say that it would leave the next' of kin to his remedy of himself bringing action, rather than remove the executor. The due administration of this estate, so far as now appears, requires that the test be made, and whatever of labor and expense shall properly attend the making of that test should be borne by the estate. The executor should no longer be allowed to use his position as the representative of the estate and as an officer of this court as a shield to prevent the estate from prosecuting with all the vigor at its command such suit against him as will fairly and finally determine the rights of all parties. The court is satisfied that the petitioner has established that the executor is unfit for the due execution of his office, by reason of misconduct in the execution of his office, within the meaning of the law. The disposition made of this branch of the case makes it unnecessary to consider the allegation that the circumstances of the executor are such that they do not afford adequate security to the creditors or persons interested. I do not think the evidence establishes any of the other causes for revocation enumerated in the statute.

A decree revoking the1 letters testamentary issued to the executor may be entered on five days’ notice. The petitioner should be allowed costs, to be taxed, payable out of the estate.

Ordered accordingly.


author: MARCUS, S.

text:
    In the Matter of the Petition for Sale of Real Property of George W. Rockwell, Deceased.
    (Surrogate’s Court, Erie County.
    July, 1896.)
    1. Pleading—Verification—Affidavit made without state.
    A petition is not properly verified where the venue of the verification . is laid in New York, and the seal of the officer administering the oath shows that lie is a. justice of the peace in Pennsylvania, but there is no certificate attached to the verification showing the authority of the officer to administer oaths.
    3, Same—Amendment.
    The requirement that the authority of an officer without the state before whom a petition was verified shall appear is jurisdictional, and therefore such authority cannot be supplied by an amendment of the verification.
    Petition by B. D. Hotchkiss for the sale of the real property of George W. Rockwell, deceased, for the payment of decedent’s debts. Denied.
    Bullymore, Magavern & Crosser, for petitioner; Sprague, Moot, Sprague & Brownell, appearing specially as attorneys for Pauline M. Rockwell, for the purpose of presenting preliminary objections, only.
   MARCUS, S.

—This is a proceeding to dispose of the decedent’s real property to pay debts and funeral expenses. A preliminary objection has been filed to the petition, setting forth that the same is null and void because of not being verified as required by law, the venue of the verification reading, “ State of Hew York, County of Erie, City of Buffalo, ss.,” wherea-s the oath was taken in the state of Pennsylvania, county of Crawford, town- of Centreville, before one T. J. Patton, a justice of the peace in and for said last-named state, county, and town. The jurat attached to the verification, contained the words: “ Commissioner of deeds in and for the city of Buffalo, N. Y., and notary public in and for Erie county, Hew York.” Furthermore, no certificate was attached to the verification, as required by law, to show that the oath was administered by an officer duly authorized, and within his jurisdiction. It seems that there is no dispute but that the oath was regularly and duly administered, the only defects consisting in the failure to correctly recite the facts in the verification and to attach a certificate showing the authority of the justice of the peace to take the affidavit. The signature. of the officer taking the oath was accompanied by his seal of office, containing the words: “T. J. Patton, Justice of the peace, Centreville, Crawford County, Pennsylvania.” The petitioner asks the court to exercise its discretion by allowing an amendment nunc pro tunc supplying the defects and inaccuracies of the verification upon their filing the necessary proof therefor. It is claimed, on the other hand, that the petition is fatally defective, and that, even if the affidavit of verification had the proper venue, and Patton had subscribed himself with his proper title, the petition would still have been improperly verified, because there was no certificate of a clerk of a court of record annexed to said petition certifying that Patton is a justice of the peace, and authorized to administer oaths, etc.; that the defect in the petition being a jurisdictional one, the court cannot acquire jurisdiction unless a proper petition is before it; and that the defect cannot be cured by amendment, because, if the court has no jurisdiction, it cannot acquire jurisdiction by means of an amendment. In this connection it is to be noted that since the filing of the defective petition the three years within which this proceeding can be instituted have elapsed.

I have concluded to sustain ■ the objections on the following grounds : (1) That the petition is not duly verified; (2) that this court has no power to allow the amendment asked nunc pro tunc in this proceeding.

Objection sustained.