author: BARTLETT, J.

text:
    Linnie M. Davis et al., Resp’ts, v. Charles L. C. Kerr, as Executor, etc., App'lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Wills—Construction.
    Where the testatrix gave money to trustees to invest and keep invested during the lives of her son and his wife and of the survivor of them, and to pay the income to the son during his life, for the support of himself and family, and in case of his death, his wife surviving him, then to pay the income to the widow of her son, for the benefit of herself and children, as long as she lives and remains her son’s widow, and on the death or marriage of the widow, or on the death of the son, his wife not surviving him, the principal to go to the then living sons of her son, the words “his wife" and “his widow” refer only to the person who was the son’s wife at the time the will was made though they were divorced and the son married another woman.
    8. Trustees—Parties.
    Though a will, which gives money in trust to two persons, appoints a third person trustee to succeed them in the event .of their death, an action can be maintained for the fund against the executor of the survivor of such two trustees, without joining as a party the person appointed to succeed them, where the trust terminated before the death of the two trustees, so that nothing remained to do with respect to the fund but pay it to certain persons.
    3. Same—Receipt op money. _ _____ _
    Where by the will, the executors are made trustees of a certain amount for H. an account of their proceedings as executors, presented to the surrogate’s court, in which they, over their signatures and under oath, credit themselves with such amount as invested in their names as trustees of H., is proof of the receipt and joint possession of the trust money by both trustees. . ____ ___ __________
    4. Same—Liability. ■ ................

    Where a trustee does not exercise any care or diligence whatever in respect to the joint trust, but delivers over the whole management to others, with1 complete indifference to the interest of the beneficiaries, he is responsible to the latter for the loss of the fund.
    5. Same—Survivor.
    Upon the death of one of two trustees, it is the duty of the survivor to take sole possession of the fund, and the presumption is that he performed his duty, and did so, and his executor upon his death, must respond for the amount.
    Appeal from a judgment in favor of plaintiff.
    M. H. Hirsckberg, for app’lt; Daniel S. Bemsen, for resp’ts.
   BARTLETT, J.

The controversy in this case arises out of á trust of $4,000, established by the will of Catharine E. Sinclair. In’order to understand the questions to be considered it is essential to set out the trust clause in full. It is in these words:

“ I give and bequeath to A. Smith Ring and Cornelia S. Fenton,1 the sum of four thousand dollars upon the following trusts, viz.: To invest the same and keep the same invested upon bond anct mortgage upon real estate, during the lives of my son, Hyatt Sinclair,'and his wife, and of the survivor of them, and to pay over the interest and income thereof, as they shall receive the same, to •my said son, Hyatt Sinclair, daring his natural life, for the support of himself and his family. And in case said Hyatt Sinclair shall die leaving his wife surviving him, then and from that tima I direct the said trustees to pay the interest accruing from said, fund to the widow of my said son, for the benefit of herself and her children, as long as she shall live and remain the widow of my said son. At and upon the death or marriage of the widow of my said son, whichever shall first happen, or upon the death of my said son, if his wife shall not survive him, I give and bequeath the said principal sum of four thousand dollars to the children then living of my said son, Hyatt Sinclair, to be paid to them in equal shares upon their respectively attaining the age of twenty-one years. And in case no child of my said son, Hyatt Sinclair, shall be living at the time above appointed for the distribution of the said principal sum, then and in such case I give the said principal sum of four thousand dollars to my two daughters, Cornelia ■S. Fenton and Kitty R. Wood, to be equally divided between them. And in case either of my said children be than dead, without leaving children living, then the share of the one so dying shall be paid to my surviving child or children. ”

Catharine E. Sinclair, the testatrix, died in August, 1868. The ■executors, A. Smith Ring and Cornelia S. Fenton, qualified in the following September. At the time when the will was made and proved the wife of Hyatt Sinclair was Zelia B. Sinclair. They were divorced on March 22, 1879. Hyatt Sinclair subsequently married Sarah J. Haight, and died on April 7, 1888, leaving her •surviving him. She is still living. His first wife, Zelia B- Sin'dair, also survived him, but is now deceased, having died on January 10, 1890. The plaintiffs are the children of Hyatt and .‘Zelia B. Sinclair. Cornelia S. Fenton and A. Smith Ring, the trustees of the $4,000 fund, are both dead. Mrs. Fenton died first. The defendant is the executor of A. Smith Ring, and is ■sued for the amount of the trust fund, which his decedent, as solo surviving trustee, is alleged to have received under the will of Catharine E. Sinclair.

The first objection urged against the right of the plaintiffs to recover is that the testatrix died intestate as to the $4,000 trust fund in question. The plaintiffs sue as beneficiaries under the will, claiming to be entitled to the $4,000 in remainder. The appellant contends that they are not beneficiaries under the will at all. This was not his original position. In the brief used at the time of the oral argument, it was expressly conceded that the plaintiffs were to take the money, by the terms of the will, on the death of the widow of Hyatt Sinclair; and the contention was that the widow intended was the second, instead of the first, Mrs. Hyatt Sinclair, and, as the second Mrs. Hyatt Sinclair was still alive, the time of payment had not arrived. In the additional points for the appellant, submitted subsequently by leave of the court, his modified proposition appears to be that the time for payment to the plaintiffs, as beneficiaries of the $4,000 trust Sund, will never arrive, although they may ultimately receive some part of it, when it comes to be distributed as a portion of Mrs. Sinclair’s property which she did not dispose of by her will. The argument by which it is sought to reach this result may be briefly stated thus: Conceding that the word “wife,” wliereever used in the trust clause, means the person who was the wife-of Hyatt Sinclair at the time testatrix died, nevertheless the word “widow” in the sentence beginning, “At and upon the death or marriage of the widow of my said son,” means any widow. If this be so, the argument continues, the limitation to the children to take effect on the death of the widow was void, under the rule-laid down in Schettler v. Smith, 41 N. Y. 328; while the alternative limitation, “or upon the death of my said son, if his wife-shall not survive him,” never took effect, because the wife Zelia did survive her husband. In this ingenious manner the learned-counsel for the appellant have worked out a case of intestacy as. to the $4,000 fund.

But the vice of the argument lies in the assumption as to th& meaning of the word “widow” in the will. In Schettler v. Smith, supra, the direction in the will was to convey, “on her decease, if he leave a widow, or, if he leave no widow, then on his dicease, —referring to a son of the testator. This provision, in connection, with other clauses of the instrument was construed to refer to any wife the son might subsequently marry, though possibly not in being at the time of the testator’s death, and hence the clause was-adjudged to be void. The words “a widow” and no widow,” however, are much more general in their scope than the expression “the widow of my said son,” in the will before us here. Furthermore, in the Schettler Case another portion of the will was mentioned, in the opinion of Judge Grover, as indicating an intention to make the direction to convey dependant upon the death of any person who might become the son’s widow. This was a clause making'prcmsion for the wife of a son not yet married. There is-nothing of the kind in the will of Mrs. Sinclair from which it can be inferred that she had in mind any other person than her son’s, first wife, when she referred to his widow. Taking the whole-trust clause together, it seems to me clear that, whether she -spoke-of the wife or the widow of her son, she meant Zelia B. Sinclair, who was his wife at the time the will was made. There is nothing in the language of the will anywhere to suggest that the testatrix ever contemplated that her son might enter into any other-marriage than that which then existed. To construe the word “widow” as applicable to any widow is to invalidate a provision of the will which is perfectly good, if it applies only to the first wife;, and this, of itself, would' seem to be reason enough for adopting the latter interpretation.

A.n English case, cited in behalf of the appellant, as In re Lyne’s-Trust, L. R. 8 Eq. 65. There the testator bequeathed a fund to-trustees to invest and pay the dividends to his son for life, and after his son’s death to divide the principal equally between the-wife of his said son, in case she should happen to survive him, and all his son’s lawful children. At the date of the will the son had a wife and child. The wife died, and the son married a second-time. This second wife survived him, and the question was whether she was entitled to a share in the principal of the trust-fund. "Vice Chancellor Malins held that she was so entitled, declaring that there was quite as much to be said in favor of the intention being to benefit a future as an exisiting wife. But I do-not think this decision should have much weight as an authority. The master of the rolls (Sir George Jesse!) declined to follow it in Firth v. Fielden, 22 Wkly. Rep. 622, where, under a similar testamentary provision, he held that the gift over was confined to the wife who was alive at the date of the will, and did not go to a second wife who survived the original beneficiary. Furthermore, the vice chancellor, in his opinion in Dyne’s Case, virtually admitted that his conclusion was the merest guesswork when he wrote:

“It is impossible to say what the testator would have done if he had been asked whether he intended any future wife to take.

The second objection of the appellant to the right of the plaintiffs to maintain this action is that, under the fourth article of the will of Mrs. Sinclair, her son-in-law, John B. J. Fenton, was appointed trustee to succeed Mr. Bing and Mrs. Fenton, in the event, of their death; and as both have died, Mr. Fenton has become the sole trustee, and no recovery can be had, except in a suit to which he shall be a party. A sufficient answer to this point is that, the trust under the first article having"terminated, as has been shown, upon the death of Zelia B. Sinclair, there was no longer any trust, for a new trustee to discharge under that clause, and to that extent the appointment of Mr. Fenton was inoperative.

The third point upon which the appellant relies is that the evidence was insufficient to charge his decedent, A. Smith Bing, with liability for any portion of the trust fund of $4,000". The-plaintiffs proved that on October 28, 1869, an account of.the proceedings of A. Smith Bing and Cornelia S. Fenton, as executors-of the will of Catharine E. Sinclair, was presented to the surrogate’s court in Orange county, in which account the executors,, over their signatures and under oath, credited themselves with $4,000, “invested in name of A. Smith Bing and Cornelia S. Fen-ton, trustees of Hyatt Sinclair and his wife.” On the same day the surrogate made a decree settling their account, and allowing-them a credit of $4,000 for this investment. There was also put, in evidence a mortgage by one Faulkner to A. Smith Bing and Cornelia S. Fenton, trustees of Hyatt Sinclair, to secure the pajrrnent of $1,500. This mortgage was dated October 25, 1869. Here was ample proof to warrant the inference that the trustees had received the trust fund. They acknowledged its receipt by their sworn account, and the mortgage indicated where $1,500 of the money had been invested.

As opposed to this there is the testimony of John B, J. Fenton, the husband of Cornelia S. Fenton, one of the trustees. He was an attorney, and appears to have acted for his wife and Mr. Bing in reference to the estate of Mrs. Sinclair. He prepared the account-which was presented to the surrogate’s court. He swears that, when it was made out and filed, neither the trust fund of $4,000 •nor any part of it was invested in the names of the trustees undeh the will; that the allegation in the account to that effect was untrue; and that A. Smith Ring never had in his possession or under 'his pontrol the said $4,000, or any part of it, ór any security! for it. , The same witness testifies that he took the account to' A. Smith Ring, who signed it without reading it, though he probably asked whether the papers were right. He also thinks it probable that the jurat was signed by the then county judge, to whom the witness took the papers, without Mr. Ring having gone before that magistrate. So much for Mr. Ring’s action in regard to the trust fund. To explain the action of the other trustee, the wife of the witness, Mr. Fenton said that the greater part of the $4,000 had been paid to Hyatt Sinclair before the testatrix died, and at her request; that Hyatt Sinclair felt unpleasantly in regard to his mother’s will; that the wife of the witness wanted him to pursue the same course as though the executors actually had the $4,000 to invest; and that, hence, it came to be put into the account.

I.do not think the trial judge was bound to believe the statements of this attorney, as against the evidence furnished by the -documents already mentioned. The witness admitted that he had been engaged in a deceitful course of conduct, by putting upon the records of the surrogate’s court statements, prepared by him■self, which he says he knew to be untrue, and which purported to be verified, although his recollection now is that the certificate that they had been sworn to was also false. These admissions were enough to discredit him. No explanation was offered of the taking by the trustees of the Falkner mortgage of $1,500, in which they were expressly designated as trustees of Hyatt Sin-clair. It did appear that, in the early part of 1870, they had assigned this mortgage to one William E. Peck; but why it was thus assigned, or for what consideration, was not disclosed. It is -extremely unlikely that this matter would have been allowed to ■go unexplained, unless it were true that the mortgage represented the investment of a part of the trust fund. Indeed, the testimony of Mr. Fenton tended to prove, rather than disprove, Mr. Ring’s liability for the loss of the $4,000. It indicated that he ■did not exercise any care or diligence whatever in respect to the joint trust, but delivered over the whole management to others,! with complete indifference to the interest of the beneficiaries.! This made him responsible to them for the loss of the fund. Earle v. Earle, 93 N. Y. 104, 113. Even if Mrs. Fenton did notj have $4,000 with which to constitute the trust fund, as Mr. Fenton declares was the case, the husband admits that he owed! the Sinclair estate $5,000 at the time; and an effort on the part! -of Mr. Ring to collect that debt, and thus provide for the trust,, might well have been successful, if he had attended to his duties; •as trustee, instead of grossly neglecting them. It is true, Mrq Fenton says his own financial circumstances were such that the: amount could not have been collected from him by' legal proceedings; but this statement is qualified by the. fact that he appears, on March 25, 1870, with his wife as the co-grantee, in a deed of Eewburgh property, where the consideration recited is :$17,000, subject to a mortgage of $4,000. This does not look like insolvency.

Bat, without regard to this view of the evidence given by Mr. Fenton, I think the liability of Mr. Bing was clearly made out. The account in the surrogate’s court was proof of the receipt and joint possession of the trust money by both trustees. Glacius v. Fogel, 88 N. Y. 434, 443. Upon the death of one of these trustees (Mrs. Fenton), it was the duty of the survivor (Mr. Bing) to take sole possession of the fund, and the presumption is that he perforhied his duty, and did so, in which event his executor must respond for the amount.

The result of this examination of the case is the conclusion "that it was properly disposed of on the merits, and without legal ■error, in the court below. I can see no reason, however, why the ■defendant should not be allowed the trustee’s commissions, to be ■deducted from the amount of the judgment. With this modification, I am in favor of affirmance.

All concur.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    In the Matter of an Application by William F. Nisbet et al., for Writ of Certiorari.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    Certiorari—Petition—Assessment.
    Where the petition alleges that the assessment complained of is erroneous by reason of overvaluation, or is unequal in that it had been made at a higher proportionate valuation than other real property on the same roll by the same assessors, and that the petitioners will be iniured by such erroneous and unequal assessment, the allegation is in the language of the ■statute and sufficient to confer jurisdiction upon the court to issue the writ.
    Appeal from an order, dismissing a writ of certiorari after its allowance, and an order denying a motion to amend the petition.
    S. II. Thayer, for app’lts; James M. Hunt, for resp’t.
   BROWN, P. J.

The petitioners in this proceeding are tax> payers in the city of Yonkers, and seek a review by certiorari of the assessment upon their real property. The writ having been allowed, and the return thereto having been made, the proceedings were dismissed on the motion of the assessors, upon the ■ground that the petition was insufficient. We are of the opinion that this ruling cannot be sustained. The petition alleges that the; assessment complained of is erroneous by reason of overvaluation, or is unequal in that it had been made at a higher proportionate valuation than other real property on the same roll by the same assessors, and that the petitioners will be injured by such erroneous and unequal assessment. This allegation is in the language of the statute (Laws 1880, c. 269, § 1), and is sufficient to confer jurisdiction upon the court to issue the writ. Rochester Railway Co. v. Robinson, 133 N. Y. 242; 44 St. Rep. 872; In re Corwin, 135 N. Y. 245; 48 St. Rep. 238; People ex rel. Com. Mut. Ins. Co. v. Commissioners, 144 N. Y. 483; 64 St. Rep. 60. The rule applied in the cases cited is that the petition is in the nature of a pleading, and conclusions of fact only need be stated, and not the evidence necessary to support them.

. The only criticism made upon the petition is that it should have been alleged that the property was assessed at a higher proportionate rate than property in the city of Yonkers generally. To sustain this criticism we are referred to the case of People ex rel. Allen v. Badgley, 138 N. Y. 314; 51 St. Rep. 410, where that rule was applied by the court of appeals.- That case was, however, an appeal from an order which reduced an assessment, and what was said by ‘the court had reference to the testimony in the case, and not to the allegations of the petition. We think that it was sufficient, to confer jurisdiction upon the court, that the allegation of overvaluation and inequality of assessment was set forth in the petition in the language of the statute. This conclusion renders it unnecessary to consider the question as to the amendment of the petition.

The order dismissing the writ must be reversed, with $10 costs and disbursements,, and the order denying the motion to amend the petition must be affirmed, without costs.

All concur.


text:
    James H. Morrison, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Personal injuries—Negligence.
    In an action for the loss of plaintiff’s eye, the burden rests upon the plaintiff to show that his subsequent neglect did not contribute to the injury, and the conclusion to be drawn from his testimony as to his conduct after receiving the injury, is one of fact.
    2. Same—Damages.
    Where the rule, applied in determining the plaintiff’s damages, permits the jury to capitalize the plaintiff’s loss of earning power, it is plainly erroneous.
    Appeal from a judgment in favor of plaintiff entered on a verdict, and from an order denying a motion for a new trial.
    William C. Beecher, for app’lt; Charles J. Patterson, for resp’t.
   BROWN, P. J.

The plaintiff, while standing upon Atlantic avenue, in the city of Brooklyn, was struck in the eye with a cinder, which he alleged was negligently permitted to escape from, an engine upon the defendant’s road. The result of the injury was the loss of. the eye.

The accident occurred on January 9, 1894, between three and four o’clock in the afternoon. Immediately after the accident plaintiff went to a drug store, but nothing appears to have been there done for him. He then went to his home, and during the ■evening bathed his eye with hot water and Pond’s Extract. He did not consult a physician until the following night. He was then advised to see a specialist, and on the afternoon of the next day, January 11th, he consulted Dr. Matthewson. There was no testimony introduced by either party to show that this delay aggravated the injury, or that the sight of his eye could have been saved had the plaintiff consulted a competent physician earlier than he saw Dr. Matthewson. The ■ plaintiff testified -that, from the time the accident occurred, he- was practically unable to see with the injured eye, and that, within a half hour thereafter, it began to discharge freely.

It was the defendant’s contention that the plaintiff’s delay in ■consulting a physician had contributed to the loss of the eye, and the court was requested to charge that the plaintiff was bound to satisfy the jury, by a fair preponderance of proof, that the severe injury complained of was not in any manner caused by his own neglect, and that, if the plaintiff’s delay in seeking medical assistance materially contributed to the loss of his eye, then he was negligent, and could not recover. In response to this request, the court stated correctly to the jury the general rule of law relating to the plaintiff’s duty in that regard, and then added the following:

611 charge you, as matter of fact, and as matter of law, that the plaintiff did use in this case all the law required, did everything the law required him to do, apd used those means which suggested themselves to him in the proper way.”

To this instruction the defendant took an exception.

Hpon the question of damages, the court instructed the jury as follows:

“ If you find for the plaintiff on these issues, then you will give to him a fair sum of money to compensate him for the loss of earning power,—whatéver he might have earned more than he can earn now by reason of having lost his eye,—his fair compensation in that regard ; and you are to determine as best yon can how much he could earn before he lost his eye, and how much he can earn since he lost his eye; that would be his loss of earning power. And when you ascertain that, you have a right to fix a sum the annual income which that earning power would produce to him.

And to this instruction the defendant excepted. ■

We are of the opinion that both exceptions were well taken The burden rested upon the plaintiff to show that his neglect had not contributed to the injury, and the conclusion to be drawn from his testimony as to his conduct after receiving the injury was one of fact. The defendant was not called upon to show that the delay in consulting a physician necessarily aggravated the injury. It had a right to rest" its case in that respect upon the plaintiff’s evidence. The court was not authorized to determine, as a question of law, that that delay was not injurious to the plaintiff The inference to be drawn from the testimony was wholly one of fact, and it was for the jury to determine.

The charge in respect to the rule to be applied in determining the plaintiff’s damages was plainly erroneous. There is no donbt as to the meaning of the learned j udge. He very plainly intended to permit the jury to capitalize the plaintiff’s loss of earning power. That rule for measuring damages cannot be sustained, Gregory v. N. Y., L. E. & W. Railroad Co., 55 Hun, 303; 28 St. Rep. 726.

The judgment and order must be reversed, and new trial granted with costs to abide the event.

All concur.


text:
    Albert O. Beebe, Resp’t, v. Richmond Light, Heat and Power Company et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Corporation—Mortgage—Assent.
    Where real estate of a corporation, on which there is a mortgage executed in its behalf by .the president, to secure its bonds, is sold on execution of its president, and is purchased from him by another party, subject to the mortgage, neither the corporation, its president or the purchaser is-in a position, in an action for foreclosure of the- morgage, to assert its invalidity on the ground that the assent of stockholders, in writing, on the-giving of the mortgage, required by chapter 611 of 1875, as amended by chapter 394 of 1888, had not been given.
    2. Same—Lien—Discharge.
    Where a purchaser of the property- of the corporation, subject to a. mortgage to secure its bonds, transferred it to the company in payment of part of his subscription to its stock, with an agreement by the company to accept any surrender to it for cancellation, of the whole or any part of said bonds, in payment of the purchaser’s subscription, the portion of such bonds which have been accepted under the agreement by the receiver-thereafter appointed for the company cannot participate in the benefits of the mortgage but must be canceled.
    Appeal from a judgment in favor of plaintiffs.
    Henry B. B. Stapler and Austin B. Fletcher, for app’lts p George A. Black, for resp’t.
   BARTLETT, J.

This is an action to foreclose a mortgage-given by the Richmond Light, Heat & Power Company to the-Holland Trust Company, as trustee to secure the payment of the bonds of the former corporation to the amount of $150,000. After default.upon the coupons, the plaintiff brought the present-suit as a bondholder, alleging that the Holland Trust Company,, had refused to sue, although duly requested to do so. In addition to the Holland Trust Company, he made the Electric Power Company of Staten Island. Albert Boardman, as the receiver of that company, Erastus Wiman, and David Bennett King, assignee of Erastus Wiman, parties defendant. The complaint alleged that, after the making of the mortgage, Mr. Wiman recovered a judgment against the Richmond Light, Heat & Power Company, whereupon execution was issued, and the property of that company was sold; that Mr. Wiman became the purchaser; that the Electric Power Company of Staten Island was subsequently formed; and that Mr. Wiman sold the property which he had bought at .the sale, under his judgment, to the Electric Power Company of Staten Island, subject to the mortgage already mentioned. It further alleged that, at the same time, the Electric Power Company promised and agreed to accept from Mr. Wiman, for cancellation, the whole or any part of the bonds secured by said mortgage, in full payment of an equal amount due upon a subscription previously made by him for $150,000 of the stock of the said Electric Power Company of Staten Island. The complaint also showed that in proceedings subsequently instituted for the voluntary dissolution of the Electric Power Company, Albert Board-man was appointed receiver, and that, after having duly qualified he took possession of the property of the Richmond Light, Heat & Power Company acquired from Mr. Wiman; that Mr. Wiman, pursuant to the aforesaid agreement, surrendered to the receiver, for cancellation, bonds of the Richmond Light, Heat & Power Company amounting to $63,700; and that of the entire issue of bonds, aggregating $150,000, there remained outstanding only-bonds to the amount of $86,300, of which all but 600 were owned by the plaintiff. The Holland Trust Company, by its answer, denied plaintiff’s allegation as to its refusal to bring suit, and prayed for a decree of foreclosure in its own behalf, as trustee, as though it had been plaintiff in this action. The Richmond Light, Heat & Power Company pleaded that the mortgage sought to be foreclosed was issued without the written assent of the stockholders, required by the act under which said defendant was-incorporated. The Electric Power Company of Staten Island set up the same defense and other matters, upon which it based the-claim that the $63,700 of bonds delivered by Mr. Wiman to the receiver should not be canceled, but were and are enforceable in behalf of the Electric Power Company against the property of the Richmond Light, Heat & Power Company in this foreclosure suit. The answers of Mr. Boardman, the receiver of the Richmond Light, Heat & Power Company, and Mr. King, the assignee of Mr. Wiman, were merely formal, putting the plaintiff to proof of the allegations of the complaint as were not admitted. The trial court decreed a foreclosure, not at the instance of the plaintiff, but in behalf of the Holland Trust Company, holding that the requisite written assent of the stockholders had been given to the making of the mortgage, and that the $63,700 of bonds turned over by Mr. Wiman to the receiver of the Electric Power Company of Staten Island were not entitled to share in the proceeds of the mortgaged property. These two findings present the only questions discussed by the appellants in this court.

1. As to the statutory assent of the stockholders: The Richmond Light, Heat & Power Company was organized under chapter 611 of the Laws of 1875. That act, as amended by chapter 894 of the Laws of 1888, provides, in regard to mortgages of real estate, as follows:

“No such mortgage or mortgages shall be issued, however, without'first having obtained the written assent of its stockholders owning more than two-thirds of the stock of said corporation.”' The mortgage in the case at bar recites that stockholders owning more than two-thirds of the stock of the company have assented to said mortgage in writing. All the proof, however, on the subject of assent, was furnished by the minutes of a special meeting of the stockholders held on March 4, 1889, at which six stockholders were present in person, and twenty by proxy, representing in all 2,823 shares óf stock. According to these minutes, it was moved that the directors be authorized to borrow for the general purpose of the business of the company the sum of $150,000, and secure the payment of the same by the execution of the mortgage then before the stockholders; and this motion was seconded and ■carried unanimously. The learned trial judge held that this resolution, passed at the stockholders’ meeting by a vote of stockholders owning more than two-thirds of. the stock, and entered on the minutes, and attested by the secretary, amounted to the written assent required by the statute. I have grave doubt as to the correctness of this view. Vail v. Hamilton, 85 N. Y. 453; Bank v. Averell, 96 id. 467. But there was no one before the court who was in a position to question the validity of the mortgage on account ■of any insufficiency in the assent of the stockholders. Mr. Wiman was estopped, by reason of having executed the mortgage himself in behalf of -the Richmond Light, Heat & Power Company, as its president, with a recital in the instrument itself to the effect that the requisite assent of the stockholders, in writing had been obtained. The Electric Power Company of Staten Island was es-topped because it had acquired the property of the Richmond Light, Heat and Power Company expressly subject to the mortgage. It was in a situation which had been likened to that of a purchaser taking title subject to a usurious mortgage, who “ is estopped from questioning its validity, and must pay it if he has agreed to; and, if not, he must allow the lands conveyed subject to it to be applied to its payment.” Freeman v. Auld, 44 N. Y. 50, 53. And, finally, I think the Richmond Light, Heat & Power Company was precluded from complaining of this alleged invalidity in the mortgage, because it had absolutely parted with all interest in the mortgaged property. No benefit could possibly accrue to that corporation by having the mortgage annulled after the mortgaged property had been transferred to another corporation. Indeed, the avoidance of the mortgage would be a distinct injury to the Richmond Light, Heat & Power Company, inasmuch as that company would remain obligated to pay the whole of the debt which the mortgage was given to secure, and yet could not have any of the mortgaged property applied towards the payment of that debt.

2. As to the status of the $63,700 of bonds of the Richmond Light, Heat & Power Company, turned over to the receiver of the Electric Power Company of Staten Island by Mr. Wiman, in part payment of his subscription to the capital stock of the latter company : Mr. Wiman had subscribed for 2,480 shares of the capital stock of the Electric Power Company. The agreement between Mr. Wiman and the two corporations, after conveying to the Electric Power Company the property which Mr. Wiman had acquired from the Richmond Light, Heat & Power Company, under his judgment, contains this clause:

“ The power company hereby accepts said transfer as payment in full of the balance due from Mr. Wiman upon his said subscription for 980 shares, and further agrees to accept any surrender to it by Mr. Wiman, for cancellation, of the whole or any part ■of said bonds, in full payment of an equal amount due upon his subscription for $150,000 of its stock; the intention of the parties being that Mr. Wiman shall receive $248,000 of the full paid ■capital stock of the power company in consideration of the transfer to it of the propeaty enumerated in Schedule A. free from all incumbrances.”

The property enumerated in Schedule A was that already mentioned as having originally belonged to the Richmond Light, Heat ■<& Power Company, and having come to Mr. Wiman through his judgment. Under the contract, from which I have quoted, Mr. Wiman has surrendered to the receiver $63,700 of the bonds for cancellation, and the trial court has held that they must be canceled ; but upon this appeal the Electric Power Company insists that these bonds constitute an assert in its hands for the benefit of its creditors, and should be retained by the receiver and enforced against the property of the Richmond Light, Heat & Power Company. I do not see how this can be done without changing the contract between Mr. Wiman and the companies, or disregarding its terms. It is not suggested that the contract was not one which the parties had power to make. The purpose of the agreement, clearly, was that Mr. Wiman, for $248,000 of the stock, should turn over to the Electric Power Company of Staten Island all the property of the Richmond Light, Heat & Power Company freed from the mortgage lien. If he co.uld not turn it over wholly freed from that lien, he was to lessen the amount of the lien as much as possible, the amount of stock which he would receive being dependant upon the degree of his success in obtaining bonds to surrender. The bonds were not money. They were the obligations of the Richmond Light, Heat & Power Company to pay money. Every one that was canceled decreased to that extent the burden imposed by the mortgage upon the property of the Richmond Light, Heat & Power Company, and thus proportionately enhanced the value of what the Electric Power Company acquired from Mr. Wiman. The provision for cancellation was intended to have this effect, and the receiver, if allowed to take the bonds from Mr. Wiman at all, could only take them subject to that provision, it is true, as contended by this appellant, that the liability of a subscriber on an unpaid stock subscription constitutes an assert which cannot be surrendered, without consideration, to the prejudice of creditors. But the cancellation here is not such a surrender. The measure of the receiver’s ‘claim against Mr. Wiman, as a subscriber to the stock of the Electric'Power Company, is the agreement to give for that stock bonds of the Richmond Light, Heat & Power Company to be canceled; and neither the Electric Power Company nor any of its creditors have any cause of complaint because.that agreement is" carried out. in principle, the contract here seems to be very much like that under which a cancellation of railroad bonds was approved in the case of Union Trust Co. v. Illinois M. Ry. Co., 117 U. S. 434, 473.

I think the judgment'appealed from should be affirmed.

All concur.


author: PER CURIAM.

text:
    In the Matter of the Voluntary Dissolution of the Electric Power Company of Staten Island.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    Appeal from that part of the order dissolving the corporation,, which provides for the cancellation of the bonds of the Richmond Light, Heat and Power Company to the amount of $63,700, now held by the receiver.
    ; Austin B. Fletcher, for app’lts; Frank H. Platt, for resp’ts.
   PER CURIAM.

That portion of the order of dissolution? which is appealed from in this proceeding should be affirmed, for-the reasons given in the opinion in Beebe v. Power Co. (decided herewith), 73 St. Rep. 734.


text:
    In the Matter of the Appraisal of the Estate of David F. Kimberly, Deceased.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Tenancy in commom—Bequest.
    Where there is a devise or a bequest to a plurality of persons as joint-tenants, no lapse can occur unless all the beneficiaries die in the intestate’s; lifetime, and, in the event of any of the beneficiaries dying, the survivor-takes the whole.bequest.
    2. Same.
    Every devise creates a tenancy in common unless the testator, by some-form or expression, clearly indicates his intention to create a joint tenancy. -• •
    3. Same ■ _ - • ■
    A bequest of all testator’s estate to three persons in their own right, without anything to indicate an intention to create a joint tenancy, being a bequest to them as tenants1 in common, lapses, as to a third thereof, om one of the persons dying before testator.

      Appeal from an order of the surrogate fixing the amount of transfer tax due from the estate.
    Edward Goldschmidt, for app’lt; Robert B. Bach, for resp’t, county treasurer.
   BROWN, P. J.

David F. Kimberly died in the city of Brooklyn, in June, 1895, never having been married. By his will he bequeathed all his estate, real and personal, to his three sisters, Mary, Annie and Louisa. Mary died before the testator, and it is the appellant’s claim that the bequest in the will is joint, and that the surviving sisters take the whole estate. The surrogate held that the bequest was to the three sisters as tenants in common ; that the bequest to Mary lapsed, and as to one-third of his estate the testator died intestate. Under this ruling, one-ninth of the estate was transferred to nephews and nieces, and was subject to a tax of 5 per cent. There is no dispute as to the proposition that, where there is a devise or a bequest to a plurality of persons as joint tenants, no lapse can occur unless all the beneficiaries die in the intestate’s lifetime, and that, in the event of any of the beneficiaries dying, the survivor takes the whole bequest. The only question before us, therefore, is as to the construction of the will.

We need not inquire whát the character of th.is gift would have been at common law, as we are of the opinion that it is controlled by the statute of this state which declares that “ every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy.” 1 Rev. St. p. 727, § 44. The general rule of the common law was that an estate devised to two or more persons created a joint tenancy (Lorillard v. Coster, 5 Paige, 228); but this rule was at an early date changed in this state (chapter 12, Laws 1786), and the provision then enacted was subsequently embobied in the Revised Statutes. The effect of this statute is that every devise creates a tenancy in common unless the testator, by some form of expression, clearly indicates his intention to create a joint tenancy. Coster v. Lorillard, 14 Wend. 342; Moore v. Lyons, 25 id. 119; Everitt v. Everitt, 29 N. Y. 40.

There is no such indication in the will before us, and the bequest to the testator’s sisters was as tenants in common, and the order must be affirmed, with $10 costs and disbursements.

All concur.


author: HATCH, J.

text:
    Isabella Dougherty, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Insurance—Limitation.
    Limitation in a policy which provides that no action shall he Brought after six months from the death of the insured, will not apply, where the company, after rejecting the claim, has, nevertheless, retained the policy and other papers until after the six months had expired.

      2. Same—Premiums.
    Where a policy of life insurance provides that it shall be void if the insured is in bad health at the time of delivery, the plaintiff, on refusal to pay the insurance, is entitled to recover the premiums paid.
    3. Same.
    Where, in an action on a policy, the defendant admits - the issuance of the policy and, for a separate defense, alleges that the application is part . of the contract, and charges specifically breach of the warranties therein ■ contained, it is an affirmative defense, and defendant is bound to establish it to the satisfaction of the jury.
    Appeal from a judgment in favor of plaintiff.
    Frederick B. Campbell, for app’lt; W. J. Powers, for respt.
   HATCH, J.

Plaintiff is the sister of Francis Farley, deceased. Prior to his death, and on September 28, 1891, she procured Farley's life to be insured for her benefit, with defendant. Subsequently, and on the 18th day of April, 1893, she applied for a further insurance upon Farley’s life. The application was accepted; the policy issued, and delivered June 19, 1893. Plaintiff has paid premiums upon both policies, as required by defendant, since their issuance. By the terms of the policy, the insured was required to be in sound health at the time of delivery, else it would not take effect. There was no claim that any defect existed in the first policy. As to the second, it appeared that Farley was-not in sound health when the policy was delivered; and the, court, upon the trial, dismissed the complaint as to it, but held that plaintiff was entitled to recover the premiums paid, thereon. Farley died July 22, 1893. The proof upon the part of plaintiff tended to establish that, shortly after his death, plaintiff procured a blank upon which to fill out proofs of loss,-and that an agent of defendant took the same, together with the policies and papers, promising to fill out and present the same to defendant. By the| terms of the policy, no suit could be commenced against the com-¡ pany before the lapse of ten days after filing, in the home office, of the company, proofs of death upon the forms furnished by it; nor can an action be maintained against the defendant after six months from the date of death of the insured. The action was not begun within this time. But plaintiff gave evidence tending, to establish that defendant retained the proofs of loss and her-other papers until after the six months had expired, before they returned them to her or rejected her claim. Defendant denied this,, claiming that it had rejected the claim, notified plaintiff of its re-; jection, and returned her papers within the six months. Upon' this testimony, the court submitted this question to the jury, whether defendant retained possession of the papers as claimed by’ plaintiff, and, if so, did such act upon their part amount to a. waiver of this provision of the policy, charging that both facts' must be found in plaintiff’s favor before she was entitled to recover. The evidence warranted the submission, and the form of it was unexceptionable. The jury found in favor of plaintiff, and, unless some error occurred upon the trial, the judgment appealed from must be affirmed.

It is claimed that the testimony of Siegrist, defendant’s agent» is uncontradicted that he notified plaintiff of the rejection of the claim by the company as early as August 17, 1893. It this be ■true, it does not work the result claimed by defendant. It still ■retained possession of her policy and papers. It might well be that they rejected the claim, but it would not follow from that, as a conclusive proposition, that it intended to insist upon its short statute of limitations. .Plaintiff was in no position to bring her action until she was possessed of the policy and papers. They were essential in order to prepare-her complaint. It would be most reprehensible for defendant to withhold her papers, the evidence of her right to prosecute an action, and then insist that she had notice of the rejection of the claim, and was absolutely concluded thereby unless she acted before the end of the six months. Good faith required that her papers be returned as soon as defendant acted thereon. Eetaining the policies after this event, and then insisting upon this short statute of limitations, ought not to receive favor at the hands of the court It had too much the earmarks of an intention to create a condition where the limitation may be availed of. Siegrist was the active agent of the defendant in this transaction, and consequently an interested witness. His credibility was the subject of scrutiny by the jury. Joy v. Diefendorf, 130 N.Y. 6; 40 St. Rep. 491. Besides, his testimony was contradicted in other essential respects, and the jury would have the right to reject his evidence entirely. The action was for ■ the n)oney due upon the policies, and demanded a money judgment. The proof showed that no contract had ever existed as to the second policy, that premiums had been paid thereon, and their amount, which was retained by the defendant The transaction was set out in the complaint, and it was clearly unconscionable for defendant to retain these moneys, under the circumstances proved. It was in no sense misled, and, if it were essential, the complaint could now be deemed amended to sustain the recovery in this regard. As there was no recovery by defendant upon the second cause of action stated in the complaint, it was not entitled to costs. Cooper v. Jolly, 30 Hun, 224; Burns v. D., L. & W. Railroad Co., 135 N. Y. 268; 48 St. Rep. 106.

It is insisted that the court committed an error in permitting plaintiff to introduce the policy., over defendant’s objection, without also introducing the application, which, by the policy, was made a part of the same. In support of this contention, defendant relies upon the case of Insurance Co. v. Storrs, 97 Pa. St. 354. The ruling in that case supports the contention. But the doctrine is without application to the present case, if it be regarded as the rule, which is doubtful in this state. The complaint alleged a cause of action upon the policy, and that alone, as constituting the contract between the parties. The defendant did not demur to the complaint, or otherwise indicate that plaintiff had not stated a good cause of action. By its answer, it admitted, by not denying, the issuance of the policy. And, for a separate defense, is alleged that the application constituted a part of the contract, and specifically alleged a breach of the warranties therein contained. This pleading, therefore, raised as the issue the breach of warranty. It was an affirmative defense, and defendant was bound to establish it to the satisfaction of the jury. Spencer v. Citizens’ Mut. L. Ins. Association, 142 N. Y. 505; 60 St. Rep. 96. Under the issues, as framed by the parties, plaintiff was not required to do more1 than she did to establish her cause of action. Insurance Co. v. Sheppard, 85 Ga. 751.

It therefore follows that no error was committed in this regard, and the judgment and orders appealed from should be affirmed, with costs.

All concur..


author: PATTERSON, J.

text:
    Mary H. Mott, by Guardian, etc., Resp’t, v. Joseph C. Mott, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Evidence—Divorce.
    In an action for divorce on the ground of adultery, the testimony of prostitutes is insufficient to sustain the charge, unless corroborated by other direct and circumstantial evidence.
    3. Divorce—Proof.
    The evidence, in this case, was held sufficient to prove adultery.
    3. Same.
    The rule that marriage operates as an oblivion of all that has previously passed does not apply where the adultery is charged to have taken place with the very same-person with whom connection is pleaded before marriage, and such prior connection may he shown to throw light on defendant’s subsequent conduct.
    Appeal from a judgment in favor of plaintiff, entered on the report of the referee.
    Austin G. Fox, for app’lt; Abraham H. Hummel, for resp’t,
   PATTERSON, J.

It is unnecessary to make extended refer ence to the unsavory details of the evidence in this action. It1 was instituted to procure a divorce, and was referred to a referee, who reported that on the 3d day of August, 1893, the defendant committed adultery with a woman known as Frankie Stewart, at Ho. 1007 Sixth avenue, in the city of Hew York, and that during the month of September, 1893,'he committed adultery with another woman, known as Hina Mann, at the same place. The judgment entered upon this report, and now appealed from, must stand or fall by the findings of the referee as to these two periods! of time. All that is really involved in. the action is connected) with a disputed question of dates. The infant plaintiff and the! defendant were married on the 28th day of July, 1893. The marriage was a ceremonial one, but clandestine, and the parties have never lived together or cohabited. The referee found that the first act of infidelity complained of was committed by the defendant within a week after his marriage, and the second within six weeks. We are unable to concur with the referee in his finding respecting the alleged occurrence in August. That the defendant had before that date been a frequenter of the brothel in .Sixth avenue stands uncontradicted ; that he there consorted with prostitutes, he is obliged to admit; that he was acquainted with, •and was the companion at times in that apartment of, the woman named by the referee, is also undeniable; but he has successfully repelled the charge that on the 3d day of August he committed adultery with that woman. The only positive testimony to establish the accusation as to that day comes from the witness Marshall, the sister of the woman (Mrs. Adams) who kept the apartment in which it is alleged the act occurred. She testifies quite distinctly that it was on the 3d day of August, and she fixes the date as being a day or two before the police authorities made a raid upon the premises, which raid was made on the 5th day of August, 1893. She swears that the defendant was in the apartment on the night of the raid, and was in company with his cousin, Cooper •and that she never saw Mott in the apartment except when accompanied by Cooper, and she states that she recollects more positively •that they were present on the 5th than that they were on the 3d of August. The Adams woman, who kept the apartment, does not testify to having seen Mott there on the 3d of August, or about that •date, but only that she heard voices, but did not recognize Mott’s •as one of them. Now, it distinctly appears by testimony which cannot be rejected that Cooper was not in New York on the 3d or 5th of August, but that he was in Chicago, and had gone there -early in July, and did not return until about the end of August; and ■it is also shown that the defendant, Mott, was not in the city of New York oh the 5th of August, but was at Narragansett Pier. He arrived there on the morning of the 5th of August, and his name was inscribed in the hotel register by his father, who testifies to the fact, and that his son did not return’ to the city of New York until the 20th day of August." The father also testified that during all the interval the son was at Narragansett Pier. It is •evident, therefore, that the witness Marshall was mistaken as to the date, and that the intercourse which she says Mott had with the woman named by the referee in his finding new under consideration must have taken place some time prior to August 3, 1893. She probably referred to an occasion when the defendant admitted that he had intercourse with this woman,—an occasion which he ■doubtless intended to say was prior to the marriage, though singularly enough, when narrating the occurrence, he failed to specify ■any date.

When, however, we come to the consideration of the finding respecting the month of September, we must hold that sufficient appeared in evidence to authorize the decision the. referee made concerning the act of adultery charged as having been committed that month with the woman known as Nina Mann. The wit: ness Katherine Richards testifies very distinctly and clearly to the -occurrence having taken place in the latter part of August or the oarly part of September, 1893. It is not denied that Mott at that time was in New York city. The witness testified that Mott, came into the apartment alone ; that Nina Mann was there; that Mott said he did not want Richards; that he did not like- her; that Nina Mann then went in to him; that.Nina Mann and Mott retired together to a bedroom, remained there an hour, and that then Nina Mann came out, and handed Mrs. Adams a bill, which, the latter changed. Nina Mann then went back to the bedroom, and the witness left the two there. The defendant was not specifically interrogated as to these details. He contented himself' with a general denial of the main facts thus testified to, and an-assertion that he was not in the flat between the date of his marriage and the following Thanksgiving Day. It is urged that the testimony of this witness Richards should be disregarded, and that it is insufficient to form the basis of a decree, because it was given by a confessed prostitute; and that, under the rule which obtains respecting the testimony of such discredited witnesses, it should be unavailing, because it lacks corroboration. In Moller v. Moller, 115 N. Y. 466; 26 St. Rep. 207, it is said that the-courts regard the uncorroborated evidence of prostitutes and private detectives as insufficient to break the bonds of matrimony,, but that in divorce cases the courts must take such evidence as the nature of the case permits, circumstantial, direct, or positive; and must bring to bear upon it the tests of observation and experience, in the exercise of good judgment. It is to be weighed! with prudence and care, and effect must be given to its just preponderance. In McCarthy v. McCarthy, 143 N. Y. 235; 62 St. Rep. 184, this rule was substantially reiterated. Wo are therefore compelled to examine the whole proofs before us to ascertain if there is to be found corroboration by facts or circumstances-sufficient to justify the acceptance of what was deposed to by the-witness Richards as a truthful statement of an occurrence bap-'pening at or about the time sworn to by her, and found by the-referee. Of the fact that Mott knew, and was intimate and had. sexual relations with," Nina Mann at some date,—at all events,, before his marriage,—there can be no doubt. In fact, Mott scarcely denies it. At one point in his examination, when he-was asked the direct question, “ Bid you, at any time after your marriage, have intercourse with Nina Mann?” he answered, “ That was before.” He admits that he was a frequenter of the-apartment in Sixth avenue, and that he had illicit intercourse-there with at least two other women. He was known in this apartment by the sobriquet of “Poker Joe." He will go no-further in his testimony as to Nina Mann than to say that he does not remember having had sexual intercourse with this particular-woman. This statement is incredible. And it. is inconsistent with what he said as above quoted, when for a moment he was-off his guard. He undoubtedly remembered whether he had or; had not had intercourse with this woman. His assertion of lack of memory with regard to such a matter can hardly be true, and, if untrue, it discredits him as a witness generally. It is proven-by other witnesses, whose testimony on this particular point is not, to be assailed, and among them by his own cousin, Cooper, that. this Kina Mann was known among the lewd persons of their acquaintance as “ the friend ” of this defendant. Friendship with a prostitute is suggestive of something different from a merely platonic relation. So far, then, as the fact of corroboration of the testimony of Richards as to the acquaintance and relations of the defendant with Kina Mann is concerned, the case does not admit of any reasonable doubt, and we must, therefore, consider the question as to the date.

Were these relations, which existed before the 28th of July, 1893, discontinued then, or was the act which the referee has found to have been committed so committed after the marriage, and after the return of the defendant from Karragansett Pier, which, as stated before, was on the 20th of August, 1893 ? The fixing of the date of the alleged adultery with Kina Mann in August or September certainly rests upon the testimony of this witness Richards. But we find some corroboration of this testimony of Richards in the statement of Frankie Adams,, who kept the-apartment. To be sure, although not a prostitute herself, she was-the proprietress of the brothel,—a little more discreditable occupation, if that were possible, than that pursued by the abandoned women by whose prostitution she profited. But several of the-circumstances to which she deposed were of such a character that they could not have been fabricated by her for the purposes of this case, for when she narrated them they had no apparent bearing upon the issues. She testified that Kina Mann was away from Kew York from the 1st of June until the latter part of August. She also testified that on one occasion after the 5th of August, Mott came into her room alone, and asked her how she-felt. She said she received money from Kina Mann after Mott “would leave the apartment.” She was asked, “When did you receive money from Kina Mann ? ” and she answered, “ That, was between the 5th of August, as near as I can remember, and the 20th of September; before I went to the World’s Fair.” While this is not precisely as Richards put it, still it furnishes-some corroboration of her story with respect to the changing of the bill under the circumstances she testified to, which as the-whole evidence shows, if it occurred at all, must have been between the 20th of August and the 20th of September, as'Mott was. not in Kew York between the 5th and the 20th of August. This circumstance of corroboration is, it is true, from an' impure source but yet of such character that it is not likely to have been conjured up merely for the purpose of supporting the testimony of the Richards woman, who had not yet been called as a witness when Mrs. Adams testified, and whose account of the September occurrence had not yet appeared. And if it had been put forward untruthfully for the purpose of corroboraiion, the two stories would probably have fitted more precisely in matter of detail. It is to be observed that neither of these women had ever had illicit intercourse with Mott, nor does it appear in any way that either of them knew what the other would testify to about the changing of the bill, or the money passing between Kina Mann and Mrs. Adams; and it is improbable that they could have concocted the story between them merely to fix a date or a time in August or September that would fasten a specific charge of adultery upon ¡this defendant.

But this date is also corroborated by a circumstance, the truth •of which is vouched for by the defendant himself. He expressly admits playing poker with the Marshall woman in the flat for a period covering a couple of months. He says: ' 4

“It was on and off within a couple of months. Within a couple ■of months, I should think. Well, may be a week more or a week less. I don’t know exactly. My best recollection is that ■the whole period covered by the time which I played poker at that house, in which Miss Marshall was engaged, would be about a couple of months.”

He admits playing with her, and there is no evidence that he ever played with any one else, except, possibly Adams. The gravity of this admission is apparent when we consider that this couple of months embraced a period long after the defendant’s marriage, and in fact running down to the end of August. The crucial fact on this head is, of course, the date of Marshall’s arrival at the flat. We think the evidence abundantly establishes that this arrival was about the latter part of June. The testimony of Marshall upon this point is quite circumstantial, and this testimony is both natural and probable. Adams at first put it. later, — as late, in fact, as the latter part of July; but afterwards she was taken sick in June, which was undoubtedly the month to which she intended to refer throughout. 'As already observed, these women, when they gave this testimony, could have had no idea of its importance. It was merely incidental relation of what must then have been deemed a minor detail. Its importance resulted later from the defendant’s admission as to the two months during which he was playing poker with Marshall. Marshall says she was connected with the Wilbur Opera Company in the month of June, and that in that month she was playing' with this company in Denver, Colo. She further says that at that time she received a telegraphic dispatch “to come [to Hew York] at once if she'wanted to see her sister alive;” and that accordingly she came on, reaching here in the latter part of June. If the circumstances here narrated were untrue, it could have been shown, for aught that appears, without much difficulty. Certainly there could have been no -difficulty m ascertaining whether the Wilbur Opera Company, was paying in Denver in June, 1893, and whether Marshall was playing with it. The defendant attempted to escape the probative force of these circumstances by placing the arrival of Marshall at1 an earlier date,—back in April or May. In this, however, he ist not corroborated by a single witness, not even by his cousin, •Cooper, whom he claims to have been his constant companion whenever he visited the brothel. It is certainly significant that Cooper was never asked a single question as to this vital cireum.stance. The defendant’s testimony throughout is evasive, unnatural, and most improbable, especially in - hi* pretended want of recollection with regard to intercourse with Hina Mann before his marriage. As to this particular circumstance of the arrival of Marshall, it is vague and unsatisfactory. He testifies that he saw Marshall there as early as the spring of 1893,—April or May; and that he first knew that Adams was taken sick during the months •of April or May. He declared that he stopped going to Adams’ place about the 1st of June. If the latter statement were true, and if he played poker with Marshall there for a couple of months then Adams must have been taken sick, and Marshall must have arrived, in the early part of April. The alternative, “ April or .May,” is altogether too elastic and vague. This alternative statement would be true even though Mott first saw Marshall in the latter part of May. If, therefore, Mott, as he concedes, played poker with Marshall for a couple of months, and if he testified truthfully when he said that he ceased going to Adams’ about the 1st of June, he need not have been so vague as to the date of Adams’ illness and Marshall’s arrival; and that vagueness, under the circumstances, became especially suspicions. He knew that Marshall had been reasonably precise in her statements, and that these statements were crcumstantial, and referred to other events, which admitted of demonstration or refutation. He knew, too, that the date of Marshall’s arrival was placed by both women at a period even subsequent to that when he had sworn that he ceased .going to the flat altogether. Yet he failed to interrogate Cooper upon the subject, failed to verify or disprove the Denver facts, and contented himself with placing Marshall’s arrival in ‘‘April or May.” We thus find corroboration both as to the person with whom the adultery was committed and as to the date, while as to the act itself we have, in addition, the antecedent facts with repect io the defendant’s relations with Hina Mann. It is not a case where the defendant is entitled to claim that with marriage came reformation, and that the presumption is against his having thereafter renewed his former evil associations. He did not turn over a new leaf. Marriage did not prevent his going again to this brothel, for upon his own confession he went there later with two •companions, one of whom (his cousin Cooper) was aware of his marriage; and he then share the social, though not the criminal, intercourse of the occasion. There is, therefore, no inherent improbability in the story of his -having visited the place upon a somewhat earlier occasion.

It is undoubtedly the general rule that marriage operates as an oblivion of all that has previously passed. It did not thus operate here as to the locality, as we have seen. But as to the act, as was held in Weatherley v. Weatherley, 1 Spinks, 193, where the adultery is charged to have taken place with the very same person with whom connection is pleaded before marriage, this circumstance forms a necessary exception to the oblivion rule. As was said by the learned Dr. Lushington in that case :

“ Circumstances which may be proved subsequently to the marriage will have a very different complexion whether they are taken standing alone, without reference to preceding circumstances, or whether they are taken in conjunction with antecedent •criminal connection itself.”

To the same effect is the doctrine laid down in Ciocci v. Ciocci, 26 Eng. Law & Eq. 604; Brooks v. Brooks, 145 Mass. 575, and Van Epps v. Van Epps, 6 Barb. 321. Even upon the trial of indictments for adultery in states where that offense is made by statute a crime, it has been held that, where one act of adultery is proved by a witness whose credibility the defendant attempted to impeach, evidence of prior acts of improper familiarity between the parties is admissible to corroborate the witness. Com. v. Merriam, 14 Pick. 518; Com. v. Lahey, 14 Gray, 91.

The testimony of Donnelly, the private detective, who was first, hired by the plaintiff, but who was in the employ of the defendant at the time of the trial, does not aid the latter. He testifies, it is true, that he followed Mott from the time in August when the latter arrived from Narragansett Pier, and that Mott never, within his observation, went to Adams’ until Thanksgiving Day. He admits, however, that the defendant evaded him on a number of occasions, and the occasion testified to by Richards may well have been one of these. It was at such a time that the defendant was most likely to be discreet, and to use his wits to avoid discovery. Nor do we think the defendant aided his case by procuring affidavits from Adam's and Richards, immediately after the complaint was served upon him, to the effect that he was in the flat on only one occasion after July 28th, and on that occasion did not have intercourse with any of the women. The remarks of EARL, J., in Moller v. Moller, are specially applicable to this branch of the case. He says (pages 474, 475, 115 N. Y. and 26 St. Rep. 207):

“ If the affidavit was true, he knew it, and the only place where her oath to the facts could properly aid him was upon the trial as a witness ; and it is a reasonable inference that this affidavit was-obtained so that, in case she should appear as a witness for the plaintiff, it might be used, as it was used, for her impeachment.”

The only effect of these affidavits, apart from the light which their procurement throws upon the defendant’s sense of guilt, is-to accentuate the necessity for the corroboration of the affiants. As loose women, they already stood in need of corroboration. The utmost that can be said is that they signed and swore to what the defendant and his attorney, Clark, set before them, and that thus the defendant succeeded in his preparations for impeachment. The effect of it all was not to require the court to throw aside, the testimony entirely, but, before crediting it, or giving it an probative value, to call for even greater and closer scrutiny than was already required because of the character of the women. With whatever caution .or doubt or hesitation this testimony may be considered, it is impossible to deny its force, corroborated as it undoubtedly is by circumstances of weight, by the defendant’s own admissions, and by his -failure to introduce testimony which, if it existed, would have neutralized some of the most important of these circumstances.

The judgment should be affirmed, with costs.

BARRETT, RUMSEY, and WILLIAMS. JJ., concur; YAN BRUNT, P. J., concurs in result.


author: O’BRIEN, J.

text:
    Frederick H. Smith, Jr., App’lt, v. Henry J. Crocker et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department

      Filed April 10, 1896.)

    1. Deposition—Right of party.
    A party has a right to read only so much of a deposition as he desires.
    S. Witnesses—Examination of adverse.
    In the examination of adverse parties or witnesses, a party is entitled to a considerable latitude, and it is error to exclude questions fairly intended to elicit facts.
    Appeal from a judgment in favor of defendants.
    J. A. Dennison, for app’lt; Charles K, Beekman, for resp’ts.
   O’BRIEN, J.

The action was brought by the plaintiff, as the ■■assignee of the International Wine Company, to recover $5,000 upon an agreement to erect and furnish a plant for making ■champagne and other sparkling wines in California. The contract is evidenced by a proposition made by the International Wine Company, through one Morton, as broker, in New York, to two persons in California, a firm or otherwise, signing themselves Ferris & McCondry. The latter, in answer to a proposition made by the wine company, stated that upon the erection of the plant in California and production of 100 cases of champagne, $5,000, which was on deposit in the Cloverdale Bank, would be paid to the wine company. The question of whether they performed their contract by putting up a suitable plant and making the 100 cases of wine is not. involved, as no point was made upon either of those questions upon the appeal; the real point being, between whom was the contract made? Was it by Ferris ■<& McCondry, on their own behalf, or acting as agents for a company known as. the Golden Crown Champagne Company, or as the agents for certain defendants, including the defendant Crocker, who, as partners, or as joint owners, were engaged in the production of champagne ?/ The evidence rather points to the fact that they were agents for the Golden Crown Company. But, be this as it may, so far as the record discloses, there is nothing to show that the defendant Crocker, individually or in connection with others, was a party to the contract which had been entered into by Ferris & McCondry. The evidence shows that the defendant Crocker was the president of the Golden Crown Company, and there is some evidence that he was a contributor to the‘$5,000 raised and deposited in the Cloverdale Bank; but there is not sufficient in thé case to justify the submission to the jury of the question as to his individual responsibility, or his responsibility, in connection with the other defendants named, for the payment of the $5,000. Plaintiff’s effort was directed undoubtedly to showing facts from which an inference might be drawn that the defendant Crocker, as jointly interested with others, was responsible for the contract made by Ferris & McCondry; the plaintiff refusing to concede that it was a contract which was entered into on behalf of or for the benefit of the (rolden Crown Company,. As we have said, there was no evidence sufficiently strong to justify any inference of Crocker’s personal liability for the contract; made.

This brings us to a consideration of what really are the questions upon this appeal, viz., as to whether the learned trial judge erred in compelling plaintiff to read the entire deposition, and in excluding evidence presented on the part of the plaintiff which, he claimed, if he had been permitted to introduce it, would have furnished the basis for such inferences. These rulings we propose briefly to examine.

In regard to the first ruling, which required plaintiff, when reading the deposition of the defendant Crocker, to read not only such portions as he thought proper, but the entire deposition, we-agree with the appellant that this ruling was wrong. Parmenter v. Railway Co., 37 Hun, 354. But the question remains, was this-harmful? Hndoubtedly, if he had read but one portion, the defendants would have had the right to read the remainder; and it is not made to appear that any evidence which he desired to have-from that deposition was not admitted. What he complains of, therefore, is that, in addition to such as he wanted, he was compelled to read other portions of thei deposition which he did not want. If, however, we consider the latter portion of the deposition as omitted, and in no way qualifying the testimony which the-plaintiff himself desired to bring out, and giving to it its full weight, we reach the conclusion which we have already intimated,, that this was not- sufficient to justify an inference of personal liability upon the part of Crocker. While, therefore, the ruling was. wrong, it was harmless.

The more serious questions arise upon rulings excluding evidence; The plaintiff, in seeking for proof as to who were the real parties to the contract, was compelled to examine persons who, as-shown by their manner of testifying, can justly.be characterized as adverse witnesses; and therefore some latitude in the questions; was permissible. The witness McCondry, who, with Ferris, was instrumental in making the contract, exhibited no disposition to-state fully and frankly whom he represented, and was not disposed to aid the plaintiff in establishing the identity of those liable. He had, it is true, testified that the defendant Crocker was interested with him in the experiments, and that the latter had seen the proposition of the wine company, and had visited that plant several times after it had been put up in California. But when the plaintiff endeavored to go further, and show just what interest and' connection the defendant Crocker had in the enterprise, he was-met by the objections which were sustained, and which prevented-his obtaining further information. Similar rulings were made to* questions propounded to Crocker himself. There were so many of these rulings that it is unnecessary to particularize. The plaintiff had the right to show, if he could, that Ferris & McCondry were in fact the agents for Crocker and others, jointly interested in an enterprise, and that it was for them and on their behalf thag. tiie contract was made by which the International Wine Company was to receive $5,000 upon putting up its plant and successfully completing the experiment provided for by the terms of the contract. While, therefore, it is true that the plaintiff, in order to recover, is obliged to show that the contract was made by the defendant Crocker through the agency of Ferris & McOondry, and ¡while it is equally true that upon the evidence admitted there was 'an entire failure to show any such contract, still, as the questions objected to were directed to eliciting competent evidence bearing on these points, and-as the testimony excluded might have shownCrocker’s relation to the enterprise, and the making of the contract, to be such as to render him personally liable, the rulings wereerrroneous.

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

All concur.


text:
    John Howard Latham, Resp’t, v. Minnie E. S. De Loiselle, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Contracts—Foreign.
    No presumption is to be indulged in that, in countries in which the civil law prevails, its rules are indentical with those of the common law, or with the provisions of the statutes of this state respecting written obligations to answer for the debt, default or miscarriage of another.
    2. Same.
    Where a person is seeking to enforce rights acquired under a contract, made abroad, the courts of this state will determine the rights of the parties to the contract by our own law, and, if the law of the place in which the contract was made differs in any respect from the law of forum, SO' that liability according to the lex loci contractus would not attach or would be avoided, it is for the defendant claiming the benefit of the foreign law to show the existence of its provision invalidating the contract, sued upon.
    3. Same.
    When a suitor is properly in court upon his contract, the remedy will be-afforded according to the law of this state and the contract stipulations-enforced, unless a different law governing the contract is made to appear. In such case, it must be set up by the party claiming advantage under it.
    Appeal from a judgment in favor of plaintiff, entered on a. verdiet. .....
    Reevs & Sorugham, for app’lt; John B. Pine, for resp’t.
   PATTERSON, J.

—The plaintiff recovered a judgment at the-circuit upon a contract of guaranty executed and delivered by the defendant in Paris, France, to the plaintiff’s assignor. The defendant resided at Paris, and the plaintiff’s assignor was a merchant in that, city, with whom the defendant’s husband had commercial dealings. Prior to the establishment of the business relations referred to, the plaintiff’s assignor required the defendant’s husband to furnish a guaranty in writing, to be signed by.his wife,which was done, and the instrument is in the following words, according to the exhibit put in evidence at the trial:

“ I hereby declare myself responsible towards Mr. Ferdinand Robert, 52 Faubourg Poissoniere, Paris, to the extent of twelve thousand five hundred francs, for uncovered balance my husband1 Mr. E. Sinnotte De Loiselle, 907 Broadway, New York, may have with Mr.. Robert on the first day of July, 1893. The. above guaranty being executable at the first request of Mr. Robert after the 9th of July, 1893.”

The plaintiff; in his complaint, declares upon this contract, and makes no allegation respecting the validity of the contract under the laws of the republic of France, nor does he aver what the law of that country is'concerning collateral contracts of this character, nor was any proof made at the trial relating to that matter. The answer makes no allusion to the law of France, or the place of execution or performance of the contract. No question was made, either in pleading or by objection to evidence, of the validity of the guaranty under the statute of frauds of this state. A verdict was directed for the plaintiff by the learned judge at circuit, and from the judgment entered thereupon this appeal is taken.

The contention on behalf of the appellant is, in substance, that, inasmuch as this contract of the defendant was made and executed in France, it is to be construed -in accordance with the law of that jurisdiction ; that, its validity depending upon that law, it is incumbent upon the plaintiff to show that he has an enforceable form of action by that law ; and that it is a part of the plaintiff’s case to show to the court, as matter of fact, what the law of France is upon the subject. It is urged that no presumption exists that the law of France is the same as that of the state of New York on the subject of agreement of this character, which is doubtless the1 •case, as no presumption is to be indulged in that, in countries ini’ which the civil law prevails, its rules are identical with those of the common law, or with the provisions of the statutes of this state respecting written obligations to answer for the debt, default, .or miscarriage of another. •

But the question presented in this case is not one dependent upon the indulgence of any presumption respecting the law of France. The plain case is presented of one seeking to enforce rights acquired under a contract made abroad, which contract is of a character enforceable in the courts of this state,—one apparently made in the course of commercial transaction, and the recognition and enforcement of which will not violate any law of this1 state, nor run counter to any dictate of public policy. Under such-circumstances we conceive the law to be well settled that the courts of this jurisdiction, which are open to foreigners as well as-to citizens, will determine the rights of the parties to the contract by our own law, and if the law of the place in which the contract-was made differs in any respect from the law of the forum, so that liability according to the lex loci contractus would not attach or would be voided, it is for the defendant claiming the benefit of the foreign law to show the existence of its provision invalidiiting the contract sued upon. It is unnecessary to cite an array of authorities in support of this view, for what was said by the court of appeals in Monroe v. Douglass, 5 N. Y. 452, disposes of the whole subject in these words:

“It is a well-settled rule, founded on reason and authority> that the lex fori, or, in other words, the laws of the country to whose courts a party appeals for redress, furnish, in all cases, prima facie, the rule of decision ; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicilii, lex loci contractus, or lex loci rei sitse, he must aver and prove it. The courts of a country are presumed to be acquainted only with their own laws. Those of other countries are to be Averred and proved like other facts of which courts do not take judicial notice."

Two propositions are included in this rule, proclaimed- in the case cited, viz.: That, when the suitor is properly in court upon Ms contract, a remedy will be afforded' according to the law of the state of New York, and the contract stipulations enforced, unless a different law governing that contract is made to appear; And that, to make it appear, it must be set up by the party claiming advantage under it-.

The judgment appealed from should be affirmed, with costs.

All concur. .


author: PRATT, J.

text:
    Joseph Hannegan, Resp’t, v. Union Warehouse Company et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    X. Master and servant—Relation.
    Where two employers unite for their mutual advantage in the performanee of .work, each owes to the servants of the other the same duty as to furnishing safe implements as to those employed by him directly.

      2. Same—Appliance.
    It cannot be held as matter of law that to supply hoisting apparatus for unloading a vessel, unfit to carry the weight is not negligence.
    3. Same—Question op pact.
    Where the evidence leaves the question of the servant’s contributory negligence largely a matter of judgment, the verdict for plaintifl cannot be disturbed. ^
    Appeal from a 'judgment in favor of plaintiff.
    Dailey, Bell & Crane, for app’lts; Butler, Stillman'& Hubbard, for resp’t.
   PRATT, J.

An objection is made to plaintiff’s recovery on the ground that defendant owed no duty to plaintiff. We do not think that objection tenable. There was testimony tending to show that defendants and plaintiff’s employer, for their mutual advantage, combined their forces, and removed the sugar from the ship-directly to the warehouse, defendants supplying a few men, with trucks and slings, and plaintiff’s employers supplying most of the laborers, plaintiff being one of them. This was mutually advantageous, as by this course the sugar had to be handled but twice, instead of four times. Under these circumstances the plaintiff cannot be regarded as a stranger to defendants. He was engaged in the work there carried on for the benefit of both defendants and plaintiff’s direct employers. Defendants' duty to supply safe-implements for use of the plaintiff did not differ in principle or" degree from the duty the law imposed on them to furnish safe-implements for the laborers they hired directly. As to the negligence of defendants in supplying the slings, there was abundant, evidence to go to the jury. Several witnesses testified that many of the slings supplied were so old and worn as to be improper for' that purpose, and, as one. sling broke while in use, we see no reason to doubt the truth of the testimony. It cannot be held as-matter of law that to supply slings unfit to carry the weight was-not negligence. The jury has found negligence, and on sufficient, testimony. Whether plaintiff proved himself free from negligence is a question of more doubt. Yet, if the jury credited his-testimony, we cannot say their verdict was wrong. When plaintiff was standing under the deck he testified that he looked up, and not being able to see the sugar overhead, he went under the hatchway in pursuance of his duties. Very likely, when he was in the center of the hatchway, he might have been able to see the-sugar, which was not within the line of vision while he occupied his first- position. While he was in the center, the sugar fell, and he received the injury. How long he must wait under the deck after the ascending sugar got out of his sight was a matter of judgment. He could not wait forever. The jury have found him free from negligence, and we cannot say they are wrong. The question is peculiarly within their province. None of the exceptions require further discussion, and the judgment must be-affirmed, with costs.

All concur.


text:
    Susan S. Adee, App’lt, v. Edith A. Hallett et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Gift—Inter vivos—Undue influence.
    Where the parties stand in a confidential relation to each other, and the "benefit is derived by the party holding the dominant position, -which naturally excites suspicion, the onus of proving the transaction to have been fair and such as the party conferring the benefit understood and intended, is cast upon the recipient.
    3. Same—Proof.
    The evidence, in this case, was held sufficient to establish a gift inter vivos of land.

      8. Same.
    Where every essential step is taken to vest the donee with title to and dominion over the property, subsequent differences between donor and donee cannot defeat its effect.
    4. Same—Consideration.
    A reservation of a part of the estate granted will not constitute consideration for a grant of the estate itself.
    5. Same.
    Where the consideration for the deed is in fact the love and affection which the grantor bore for her granddaughter, it is a good and sufficient consideration between parties relative of the blood.
    6. Same.
    The fact that the deed did not express the true consideration is no objection to its validity.
    7. Appeal—Reason for decision.
    Because the court states a wrong reason for its determination, it is no ground for reversing its conclusion when the facts warrant the judgment rendered.
    8. Mortgage—Liability of grantee.
    Where land, subject to a mortgage, is conveyed in consideration of love and affection, equity will require the grantee, who took with Knowledge of the 'incumbrance, to assume the same, in the absence of any agreement ‘ by the grantor to pay it.
    9. Appeal—Removal.
    To warrant the reversal of a judgment it must appear that the conclusion is against the weight of evidence, or that the proof so clearly preponderated in favor of a contrary result that error is established with a reasonable degree of certainty.
    Appeal from a judgment in favor of defendants, entered upon the decision of the court on a trial without a jury.
    J. Fred Cryer, for app’lt; W. J. Powers, for resp’ts.
   HATCH, J.

The plaintiffs seek by this action to set aside a deed, and have the same canceled of record, on the ground that the same was procured to be executed through fraud and deceit. The premises consist of a house and lot which plaintiff obtained by purchase December 3, 1891. She deeded the^ premises to de- ' fendant Edith A. Hallett, her granddaughter, by warranty deed, with a covenant against incumbrances, two days after the purchase. The court has found that plaintiff executed the deed with the desire and intention of vesting the title to the property in defendant for the purpose of avoiding a contest over her will, and preventing plaintiff’s daughter from inheriting the same ; that she executed the deed, fully comprehending the nature and character of her act, after thie same was read over to her; that she was capable of seeing and reading at the time, and signed the same with her own hand, and without assistance; that the consideration for the deed was an agreement between plaintiff and defendant that the former was to have the use .of the property conveyed during her life, and enjoy the income thereof, after paying taxes and insurance. Judgment was directed dismissing the complaint on the merits, and decreeing that plaintiff has a life estate in the property, and is entitled to keep the rents thereof over and above the taxes and insurance. The decision is vigorously attacked, as being against law and the evidence in the case. We have carefully examined the proofs given upon the trial, and are satisfied from them, that the conclusion reached by the trial: court is, in the main, correct. It sufficiently appears that plaintiff’s faculties, although somewhat impaired, are not more so than would be expected at her age. Her memory is good ; her mental condition sufficient to fairly understand the ordinary transactions of her life and such business matters as she been called upon to perform. The claim that she was blind, and unable to see, was negatived by the finding of the court, and the evidence was sufficient for that purpose. If we assume that the allegation of the complaint in this regard was not denied, the court was not concluded thereby from making such disposition of the case as upon all the proofs equity seemed to require. Plaintiff has had the sole charge of the defendant Edith Hallett from infancy. They stood in the relation of parent and child. She was evidently distrustful of her own daughter, and desired to protect the granddaughter in the enjoyment of such property as she should leave. Uncertain that the will which she had made in her granddaughter’s favor would be sufficient for that purpose, we think the evidence fairly establishes that she made and executed the deed under substantially the circumstances detailed by the witness Powers and the defendant. She did not explicitly deny the statement made by Yan Yechten that she had purchased the property with this intention. In disposing of this case we recognize the rule that, where the parties stand in a confidential relation to each other, and a benefit is derived by the party holding the dominant position, which naturally excites suspicion, the onus of proving the transaction to have been fair,' and such as the party conferring the benefit understood and intended, is cast upon the recipient. He must show by proof that the transaction is free of fraud and undue influence. Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. We are not prepared to say that the defendant has failed in this regard. It seems quite clear from the proof that plaintiff intended at the time when she purchased the property to ultimately vest the defendant with its title. This is evidenced by the relations they bore to each other, the making of the will, and her declaration at the time of the purchase. What followed, as narrated by defendant and Powers, was in harmony with her prior preconceived intention. No person, we think, can read the testimony-with unpartisan bias, and not reach the conclusion that prior to the execution of the deed she contemplated doing what the witnesses say she did do. So that their testimony as to what took place is the natural sequence of defendant’s intention, and it is impressed upon the mind that their version of the transaction is correct. With much more force can this be said of the trial court, who had all of the witnesses before it, and received the benefit of all those forceful incidents and circumstances, many times themselves of controlling importance, of which scarcely the shadow can be transferred to the record. • - - '

We are not warranted in reversing the judgment because we might have reached a different conclusion upon the evidence. To justify such result it must appear that the conclusion is against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that error is established with a reasonable degree of certainty. Baird v. Mayor, etc., 96 Y. N. 567. Applying this rule here, we find mo substantial grounds upon which to disturb this judgment. The case is not to be disposed of upon considerations of what occurred subsequent to the execution of the deed. We are quite, ready to lend our assent to the criticism of defendant’s subsequent conduct when differences had arisen between the parties, and to condemn whatever of action tended to defeat plaintiff’s enjoyment of the profits of the property. But this does not enable us to hold that this deed can be defeated. Here every essential step was taken to vest the defendant with title to and dominion over the property. Their subsequent differences could not defeat its effect. 4 Kent, Comm. (12th Ed.) 462; Gray v. Barton, 55 N. Y. 68.

Plaintiff claims that the agreement which was the consideration for the deed was void. This is quite true, if it had never been executed. The court has contented itself with stating the grounds of its decision, as is now permitted by the Code, and did not make specific findings. It uses language showing an agreement which it calls the consideration for the deed. This was not a happy statement of the real consideration for it We may be willing to say that a reservation of a part of the estate granted would not constitute consideration for a grant of the ° estate itself. Because the court has stated a wrong reason for its determination is no reason for reversing its conclusion when the facts warrant the judgment rendered. The consideration for this deed was in fact the love and affection which plaintiff bore for her granddaughter, and this has always been recognized as a good and sufficient consideration between parties relative of the blood. Goodell v. Pierce, 2 Hill, 659; 2 Washb. Real Prop. 103, 652, 656. The execution and delivery of the deed contained all the elements of a perfect gift inter vivos. Mercantile Safe-Deposit Co. v. Huntington, 89 Hun, 465; 69 St. Rep. 776. The payment of the dollar at the time of delivery did not change its character or the consideration. This was given, not inpayment, but to satisfy the parties of the validity of the transaction. Gray v. Barton, supra. The fact that the deed did not express the true consideration, and did not contain the reservation of the life estate, is no objection to the judgment. The court had all the parties before it, had jurisdiction of the person and subject-matter, and it was authorized to render such judgment as the proof showed plaintiff entitled to and as equity required. Valentine v. Richardt, 126 N. Y. 272; 37 St. Rep. 12.

As we view the case, there yet remains one particular in which the judgment should be modified. It was known to both parties when the deed was executed that plaintiff’s bond was outstanding, secured by a mortgage upon the property for $500. The land is the primary security for its payment. Wilbur v. Warren, 104 N. Y. 192; 5 St. Rep. 602. As defendant receives the land, there being no intent that plaintiff should pay or was able to pay the mortgage, equity requires that defendant assume the payment of the incumbrance, and relieve plaintiff from liability thereon. The judgment should therefore be modified so as to provide that defendant is chargeable with the payment of the mortgage, and, as modified, the judgment is affirmed, with costs to appellant.

All concur.