text:
    Matter of the estate of Aaron P. Blanck, deceased.

      (Surrogate’s Court of New York County,

      Filed November 14, 1886).
    Will — Coxstbuctiox — Sitppop.t of widow.
    Where the testator gave to his wife by his will, “ the rents, interest and entire income ” of all his estate, real and personal, after payment of his just debts and funeral expenses, to have use and enjoy the same so long as she remain his widow, and added, “ It is my desire that during the life of my wife, she and my son (referring to his son A. who died afterward), “ shall have their home together, and if the entire income of my estate shall prove insufficient to the comfortable support and maintenance of my said wife (or of both, if my wife and son continue to reside together), then I authorize and direct my said executors from time to time to pay and advance to my said wife out of the principal of my estate such sum or sums of money as may be requisite or proper to provide for her or them such comfortable support and maintenance. The above provision for my wife shall be in lieu and in bar of dower and all other claims of hers upon my estate.” Held, that the testator intended that his widow should continue after his death to be provided with a home as comfortable and as much to her liking and as suitable to her wants as the one which she enjoyed in his life-time. That the entire estate must be exhausted in her behalf if necessary, that she will not be compelled to regulate her mode of life according to the standard which the administratrix may apply.

      Gwillim Meyers, for petitioner; Manley Raymond, for resp’t i Jonathan Marshall, for infant.
   Rollins, S.

It was clearly the intention of this testator to provide at all events and under all eireumstances for the comfortable support of his wife so long as she should remain his widow.

He gives her by the first clause of his will “ the rents interest and entire income ” of all his estate real and personal after payment of his just debts and funeral expenses, to have, use and enjoy the same so long as she shall remain his widow. And he adds, — “ It is my desire that during the life of my wife she and my son ” (referring to his son Aaron, who has since deceased) “ shall have their home together, and if the entire income of my estate shall prove insufficient to the comfortable support and maintenance of my said wife, (or of both, if my wife and son ■continue to reside together), then I authorize and direct my said executors from time to time to pay and advance to my said wife, out of the principal of my estate, such sum or sums of money as may be requisite or proper to provide for her or them such comfortable support and maintenance. The above provisions for my wife shall be in lieu and in bar of dower and all other claims of hers upon my estate.”

It is a familiar rule of law, that, as between life tenant and remainder-man under a will, the -burden of taxes and repairs must ordinarily be borne by the former. Counsel for the respondent in this proceeding insists that the petitioner is entitled under her husband’s will, not to the gross income of his estate but to the surplus of such gross income above the customary charges. Whether this interpretation of the will is sound or unsound, is not material to the present inquiry, unless the gross income is discovered to be more than sufficient for the widow’s comfortable support and maintenance ; for if the net income is inadequate, the widow has an absolute right, under the will, to insist upon the depletion of the corpus of the estate to supply the deficiency. There is no room for doubt that the testator intended that his widow should continue after his death to be provided with a home as comfortable and as much to her liking and as suitable to her wants as the one which she enjoyed in his lifetime. He pledged her entire estate, income and principle, to the accomplishment of that object. A part of that estate at the time of his death consisted of leasehold property whose value» as he must bave known, would in the course of years be extinguished. It is fair to suppose that this knowledge of the possible diminution of income in the life of the widow was one of the chief reasons why he instructed his executors to resort in a certain contingency to the corpus of the estate for the widow’s benefit.

In providing for his son and for the children of his son in the event of their father’s death, he does not, as the respondent’s counsel claim, devises and bequeath the remainder after a. mere life estate; he devise, and bequeaths only such part of his possessions as may be left at the widow’s death after every penny needed for her comfortable support and maintenance has been devoted to tbat purpose. Tbe claims of tbe respondent’s children are clearly subordinate to those of tbe petitioner; the . ordinary rule of law which requires a 'trustee to exer thimself equally to protect the tenant for life and the remainder-men, and to see to it that at the death of the former the latter shall come into possession of afl the property from which the former had derived income, is not applicable to the case in hand. If the comfortable support and maintenance of this petitioner cannot be secured without devoting the entire estate to her uses, the entire estate must be exhausted in her behalf.

John W. Blanch, a nephew of the testator, formerly executor, filed his account as such in 1885. That account shows that from the death of her husband until June 1878, Mrs. Blanch received from the estate $6.448, or at the rate of nearly $1,300 per year. .From June, 1878, to June, 1885, she received $3,832,50 or at the rate of about $475 per year.

She should not be stinted to this amount nor be compelled to regulate her mode of life according to the standard which the .administratrix seehs to apply. I strongly intimated in my memorandum of July 2nd that I might have refused to grant ■this respondent letters if I had felt at liberty to do so under the law. There seemed to me reason to apprehend that the petitioner would not receive at her hands the consideration to which she is ■entitled under the will. The evidence now before me shows that my apprehensions were not without substantial foundation. 'The course which the administratrix has pursued has made it necessary for the petitioner to procure the services of counsel for the protection and security of the rights which the respondent seems •disposed to deny her. A decree may be entered directing the •payment to the petitioner of $325. Such portion of that sum .should be paid out of income as the amount of income now on .hand will justify; the remainder should be paid out of the prih•cipal. The decree must fix these sums definitely, and if counsel •disagree in the premises their differences will be adjusted by dhe court. Counsel for the petitioner has suggested that she will be content for the future if she shall be permitted to continue in the occupancy of the premises now devoted to her use .and shall receive the sum of $50 per month. It is not necessary .and perhaps not proper to give any direction at present in this .regard. But it is hoped that some agreement may be arrived at which will be satisfactory to all parties in interest and prevent useless and expensive litigation.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Egbert Denton, Appl’t, v. Charles A. Merrill, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. ASSIGNMENT FOB BENEFIT OF CBEDITOBS — PARTNERSHIP CANNOT PBEFEB CLAIMS AGAINST INDIVIDUAL PABTNEE — TbUST FUNDS.
    An assignment for the benefit of creditors contained a preference expressed as follows: “To pay to the Board of Supervisors of Chautauqua county, Ñ. Y., all'sums and indebtedness due Chautauqua county by the said firm of P. & S., and to pay the said Board of Supervisors all indebtedness due for money had of O. S., treasurer of Chautauqua county, and to pay to the said Board of Supervisors of Chautauqua county all debts and liabilities which the firm of P. & S. owe or have incurred to O. S., treasurer of Chautauqua county, and to pay said Board of Supervisors all moneys had by them and used by them, which moneys belonged to Chautauqua county.” And it appeared that S., of the firm of P. & S., who had acted as deputy.for his father, O. S., who was treasurer of Chautauqua county, had from the time of the formation of the firm up to near the time of the assignment used money which came to the county treasurer, as such to pay the debts and bills payable of the firm. Held, that said moneys were trust funds, and that S. having diverted them from their proper use, is liable to account for them to the county in a proper action for that purpose. That the fact of his liability alone did not permit the firm to give to the claim a preference to the prejudice of its creditors. That if he only was liable the assignment was void.
    2. Same — When the pbesumption is that money was lent to firm— When not — When contbact on the pabt of the fibm to repay ARISES.
    When a member of a firm borrows money and uses it in the business of the partnership, or when he appropriates the money of another for that purpose, the presumption goes in behalf of the lender, or owner of the fund so used, of the liability of the firm to him. But when he borrows the money so used upon his individual credit, of a person knowing the existence of the firm, and when he lends to his firm trust moneys, held by him without any notice to his co-partner that it is such, no contract on the part of the firm arises to pay the lender of the money or the beneficiary owner of the trust fund.
    3. Same — When schedules may be used to show intent.
    The act of making an assignment is that of the assignor, and its validity depends upon the intent with which it is done, and as of the time it is made. The original schedules when made by him reflects upon the act of making the assignment and may be treated as representing the purpose of its provisions and giving to them a more specific application. But when the schedules are made by the assignee they cannot be treated as so doing.
    4. Trust funds — May be followed in equity.
    In equity funds and property impressed with a trust may be pursued until they reach a holder in good faith. This rule is less effectual as applied to money than in its application to property other than money. The mere fact of depositing the money in a bank does not relieve it from its character of trust funds so as to defeat the right to follow and recover it as such.
    Appeal from order of Chautauqua special term- denying the plaintiff’s motion for a new trial.
    The action is brought to recover for the alleged conversion of a quantity of personal property, consisting- of a store of goods in Mayville, N. Y., to which the plaintiff claims title by virtue of an assignment for the benefit of creditors, by Marshall Porter and Edwin T. Sperry, constituting the firm of Porter and Sperry, made by them to him, July 23d, 1884.

      The defendant, as sheriff of that county, after such assignment, levied upon and sold the goods by virtue of several executions, issued upon judgment recovered against the firm. The trial court directed a verdict for the defendant. And from the order denying a new trial this appeal is taken.

      C. D. Murray, for appl’t; George Crorham, for resp’t.
   Bradley, J.

The ground upon which the defense rests is, that the assignment made by Porter and Sperry, for the benefit of their creditors to the plaintiff, was fraudulent and void as against the creditors of the assignors, on account of the preference , expressed in it as follows: — “ To pay to the Board of Supervisors of Chautauqua County, N. Y., all sums and indebtedness due Chautauqua county, by the said firm of Porter and Sperry, and to pay the said Board of Supervisors all indebtedness due for moneys had of Orrin Sperry, treasurer of Chautaugua county, and to pay to the said Board of Supervisors of Chautauqua county, all debts and liabilities which the firm of Porter and Sperry owe or have incurred to Orrin Sperry, treasurer of Chautauqua county, and to pay said Board of Supervisors all moneys had by them and used by them, which moneys belonged to Chautauqua county.”

And for the alleged reason that there was then no existing indebtedness or liability of the firm of Porter and Sperry, to the county of Chautauqua, or the Board of Supervisors of that county.

In April, 1880, the firm of Porter and Sperry was organized. It succeeded that of Miller and Porter, and purchased the stock of goods on hand of that firm, amounting to $5,393.87.

Porter retained in the new firm his interest in the property of the preceding one, which was one-half. This was all the capital he had, and he owed some debts. Sperry had no capital prior to going into the firm, and borrowed the money to purchase the interest he took in it. His father, Orrin Sperry, for several years had been, and then was treasurer of the county of Chautauqua. And the son, Edwin T. Sperry, acting as his deputy or clerk, had the charge of the business of the treasurer. And on and after the formation of his firm, he had the office, and did the business of the treasurer in a room of the store building, occupied by the firm. Thereafter and up to near the time of the assignment, moneys which came to the county treasurer as such, were used to pay the debts and bills payable of the firm. This use of the money constitutes the claim in view, and claimed to be covered by the preference referred to, in the assignment of the firm of Porter and Sperry.

To avoid the inconvenience of requiring the treasurer to sign the checks to draw the money from the bank, the funds of the treasurer were there deposited from time to time, to the credit of E. T. Sperry, and by bis cbeclc were transferred to the credit of the firm, and drawn by it for its purposes. And sometimes the treasurer’s funds were placed in the bank directly to the credit of the firm. Usually when credit was in that manner transferred and furnished to the account of the firm in the bank, the member, E. T. Sperry, took credit for it on the books of the firm. So that in consequence of its use of such funds, he appears by the books to have become its creditor. The business of placing these funds to the credit of the firm was not all done by E. T. Sperry, personally. The firm had a confidential clerk and book-keeper, who also, in the absence of E. T. Sperry (which was a considerable portion of .the time), had the charge for him of the business of the treasurer.

This clerk, by authority derived from E. T. Sperry, took moneys from the treasurer’s funds and placed them to the credit of the firm in the bank. He had authority from him to draw checks in his name, and did so transfer money in the bank from the account of E. T. Sperry, to the credit of the firm. He also had authority to draw checks, drafts, and notes in the name of •the firm. And did so draw checks to pay its bills.

He also signed the firm name to a note of date, January 4, 1884, for $846.08, payable at thirty days to the order of E. T. Sperry, and one of date, March 4, Í884, for $304.59, payable at one day to his order. Also a note of date, January 22d, 1884, for $450, payable at thirty days to the order of Orrin Sperry. The evidence tends to prove that these three notes were drawn and signed by this clerk, for treasurer’s moneys by him placed in the bank, to the credit of the firm, and used for the purpose of its business ; and that those amounts were not placed to the credit of E. T. Sperry on the books. This clerk had substantially the charge of the book-keeping of the firm the last two years of its business.

The plaintiff, as assignee, caused the schedule to be made. And in the account of creditors represented by it, appears the Board of Supervisors of Chautauqua county, as a creditor for money had by the firm, for sums embracing those three notes, respectively stated, and also' for the sum of $10,461.21, in addition.

The question arises whether this appropriation of the funds which came to the custody of the county treasurer and the manner which it was done, created a liability of the firm to the county in any view which may be taken of it. The relation of county treasurers to their respective counties, and the consequences of their default are to some extent prescribed by the statute. Before he enters upon the duties of his office the treasurer is required to give a bond to the supervisors of the county, to be approved by the Board, etc. 1. R. S. 369, § 18, amended by L. 1874, ch. 502. He is under the supervision of the board of supervisors so far that they may require improvement of the security given by him when in their judgment it is deemed expedient for the safety of the fund in his charge. Id.

And he is required to render an account to them annually, and such other time they may direct. 1 R. S. 369, § 22. And all losses which may be sustained by his default in respect to moneys received by him of those collected through the means of taxation are chargeable on the county. Id. 419, § 5. As to such money, the treasurer is practically the custodian for the county of it, charged with prescribed duties in reference to its disbursement, and his relation and duties have the nature of an agency. Supervisors v. Otis. 62 N. Y., 88: Newman v. Supervisors, 45 N. Y., 676, 686. And the liability to third persons for moneys improperly levied and collected which go to the treasurer is that of the couny and not his. Newman v. Supervisors, supra; Cary v. Curtis. 3t How. U. S., 236. They are therefore trust funds which the county in its corporate capacity may take such means through the aid of the courts as may be necessary for their preservation, and proper uses. The person to whom the custody of these funds of the county of Chautauqua which came to the treasurer was intrusted, has diverted some of them from their legitimate purposes to the use and business of the firm of which he was a member. And he is liable to account for them to, or in behalf of the county in a proper action for such purpose. But the fact of his liability alone, did not permit the firm to give to the claim a preference to the-prejudice of its creditors ; and to treat it as a liability of his only, the assignment will be deemed fraudulent and void as against the plaintiff. Wilson v. Robertson, 21 N. Y., 587.

When a member of a firm borrows money and uses it in the business of the partnership, or when he appropriates the money of another for that purpose, the presumption goes in behalf of the lender, or owner of the fund so used, of liability of the firm to him. Estate of Davis, 5 Wharton, 530, 34 Am. Dec. 574; Brown v. Higginbotham, 5 Leigh, 583, 27 Am, Dec. 618; Jaques v. Marquand, 6 Cow, 497; Hutchinson v. Smith, 7 Paige, 26-33; Ontario Bank v. Hennessey, 48 N. Y., 545.

But when he borrows the money so used upon his individual credit, of a person knowing the existence of the firm, and when he lends to his firm trust moneys held by him, without any notice to his co-partner that it is such, no undertaking or contract on the part of the firm arises to pay the lender of the money or the beneficial owner of the trust fund. This case presents a peculiar aspect in view of the question presented.

The members of the firm have united in an assignment giving preference to a claim arising out of the use of money by the firm in its business, and which was appropriated to such use in violation of law. Assuming that no action at law could have been maintained against the firm to recover the amount of money so diverted by Sperry, and used by tlie firm, the question may arise whether there are any equities in support of the claim. The form and apparent effect given to transactions which may interrupt proceedings in actions at law, do not necessarily always defeat the application of equitable considerations, and through them the means of relief. It is a rule of equitable cognizance that funds and property impressed with a trust may be pursued until they reach a holder in good faith. 2 Perry on Trusts, § 838. In re Le Blanc, 14 Hun, 8. Sadler's Appeal, 87 Penn. St., 154.

This rule is less effectual as applied to money, than in its application to property other than money, for reasons obvious in and essential to business transactions. Ferris v. Van Vechten, 73 N. Y., 113; People v. M. & M. Bank, 78 id., 269. Stephens v. Board of Education, 79 id., 183.

The evidence permits the inference that the partner, Sperry, had no funds of his own, and none other than those of the treasurer, to his credit in the bank, and consequently those so deposited by him were impressed with the trust, and he had no right to transfer any there from his account to that of the firm. And the same may be said of the moneys referred to deposited directly to its credit in the bank. Pennell v. Deffell, 4 De. G. M. & G. 372. Knatchbull v. Hallett, L. R. 13 Ch. Div. 696.

And the mere fact of its deposit to the credit of the firm, did not relieve it from its character of trust funds so as to defeat the right to follow and recover it as such. It, or the most of it, was then drawn by one member or the clerk of the firm upon, its check, with knowledge of its character, in violation of the the trust with which it was impressed.

The question whether the firm was a recipient in good faith of the fund in this manner appropriated by it, is a question entitled to some consideration. The member, Sperry, so far as it appears, took nothing from the firm on account of this money so used, except credit on its books. This was an apparent, but not a substantial consideration. It was a mere representation bearing upon the state of the accounts to arise only upon an accounting which has not been had, between the members of the firm.

This money has goné into and contributed to produce its property on hand, and property the proceeds of which have been taken by the firm. And that such property and proceeds might not be charged on account of these funds is not entirely clear. Ferris v. Van Vechten, 73 N. Y., 113.

We have thus far proceeded without reference to the inquiry whether the member, Porter, was chargeable with knowledge of the appropriation and use of these public funds in the business of the firm.

And on the assumption that he was not, we are not prepared to hold the firm liable for the moneys so used, which were placed to the credit of Sperry on its boohs, and express no opinion on that question as applied to the assignment, in view of the equitable considerations involved. The relation of the respective members of a firm to it is that of agency, and for the purposes of remedy against it, each member is chargeable civiliter with the act- of his co-partner in the partnership business, and with the knowledge and purpose with which the act is performed. And in this instance the confidential clerk in like manner represented the firm, when acting within the power with which he was invested by it. When this public money was placed to the credit of the firm it was impressed with the trust, and the account or credit produced by it, was subject to lien for its repayment. The partner Sperry, and the clerk of the firm knew this, and that the funds were appropriated in violation of law, and of the trust when they drew upon it the firm cheeks to pay its bills. By doing this the owner was deprived of the equitable remedy which there existed to reclaim the money from the bank. The intermediate act of transfer to the credit of the firm was attended with no consideration which denied to the owner such equitable right, but the defeat of it was consummated by the act of the firm in this drawing upon the account so produced. Chester v. Dickerson, 54 N. Y. 1 Bradner v. Strang. 89 id., 299. 306. However difficult it might be to sustain an action in behalf of the county against the firm upon that state of facts, the inquiry may very properly arise, and be entitled to consideration, whether, in view of the situation and all the circumstances before adverted to, there were not equities which legally justified the recognition by the firm of the claim, and went in support of the preference which the assignment sought to give it.

But without determining, or expressing any opinion on that proposition, we proceed to the consideration of the relation of the schedule to the assignment and its effect upon the provisions of the latter in view of the distinction which may be made of a portion of the claim from the rest of it. It will be observed that the assignment itself states no amount of the claim in question preferred by it, and that it alone may fairly be construed to cover any liability of the firm whatever the amount of it may be, on account of the appropriation and use by it of the funds of the county treasurer.

It appears that |450 of those funds were taken and used in the firm business, and a note for that made in its name, payable to the order of Orrin Sperry, who was such treasurer. The evidence tends to prove that this money was taken from the treasurer’s funds by the clerk of the firm, and the note so drawn and made by him in its name, without the knowledge of the treasurer of tbis act, that tbe note was not delivered to him, but was placed in tbe desk as tbe representative asset of sucb amount, and that tbe sum was not placed to the credit of tbe partner, Sperry, in tbe company books. Tbe conclusion, therefore, was not required that tbis was a loan by that partner to tbe firm, but rather that it was an appropriation of so much of tbe county fund by tbe firm to its business, by the consent of one member, and through the act of tbe clerk.

The jury were, we think, permitted to treat this diversion appropriation, and use, as the act of tbe firm.

Tbe schedule of creditors, etc., as made after tbe assignment, embraces the amount of this noté, and other sums as those to which the Board of Supervisors are entitled to receive upon the liability of the assignors, amounting together to upwards of 112,000. The evidence tends to prove that tbe schedules were made by, and under the direction of the assignee, pursuant to the requirement of the statute (L. 1877, ch. 466, § 3, subd. 5), and not by the assignors. This schedule may have been competent as evidence but it was not necessarily a part of the assignment in such sense as to make the language of the provision of the preference in question express tbe amount of tbe sums mentioned in the schedule as the amount necessarily preferred by it, as tbe claim for county funds diverted and used. And therefore the validity of tbe assignment does not necessarily depend upon the existence of the amount of the firm liability mentioned in sucb schedule. . The act of making an assignment is that of the assignors, and its validity depends upon the intent with which it is done, and as of the time it is made.

The required schedules when made by them reflect upon the act of making the assignment, and may be treated as representing tbe purpose of its provisions and giving to them a more specific application. Talcott v. Ness, 31 Hun, 282, 284; Schultz v. Hoagland, 85 N. Y., 464, 468, 469.

It is difficult to see how the act of an assignee subsequent to the assignment, in causing to be made a schedule “ in so far as he can ” can ordinarily be treated as characterizing the intent of the assignor in making it: at all events it cannot as matter of law be said that the assignee in such case has expressed in the schedule the purpose of the assignor when he executed the assignment and thus give invalidity to the latter. In Terry v. Butler, 43 Barb., 395, the schedule was made by the assignor, and was treated as part of his act in making the assignment and characterized the latter. That fact distinguishes that case from the one at bar. If these views are correct the assignment may not be found fraudulentas against the creditors of the firm if the firm was liable for any amount within the terms of the preference as expressed in the assignment. And that question should have been submitted to the jury. The new trial is granted upon tbis ground. While there are circumstances that might with some force be urged as bearing upon the question whether the partner had reason to, and did believe, and understand that the treasurer's funds were being taken, and used in the business of the firm during, or some part of, three and a half years ; when they were so appropriated in about forty instances ; we do not consider that question, or express any opinion upon it, as it is not deemed necessary for the purposes of another trial, when the facts maybe more or less variedby the evidence, and permit, and exclude inferences which are not supported by the evidence as it now appears in the record. The question and amount of the claim covered by this preference provision of the assignment is not for reasons before given necessarily involved in this review. If that instrument is sustained as valid, the amount which comes within the preference in behalf of the county, may arise upon its execution, when the creditors can be heard in such manner as they may be advised by way of support of their respective claims, and in challenging the amounts of those of other named creditors. And them considerations other than those determined on this review may arise.

The order should be reversed, and hew trial granted; costs to abide the event.

Haig-ht and Angle, JJ., concur.


author: Smith, P. J.

text:
    Buffalo Cemetery Association, Appl’t, v. City of Buffalo, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887).
    1. Taxes and assessments — Cemetery lands in city op Btjfpalo not EXEMPT PROM MUNICIPAL TAXES — LAWS 1854, CHAP. 234.
    The plaintiff was incorporated by Chapter 234, Laws 1854. By the provisions of the ninth section of the act, the cemetery of the corporation was declared to be exempt from “ all public taxes, rates, or assessments.” Held, that the said exemption did not extend to a municipal assessment, levied to defray the expenses of a local improvement, that not being a public assessment or tax within the meaning of the act, (following Buffalo City Cemetery v. City of Buffalo, 46 N. Y., 506.)
    2. Same — Laws op 1S79, chap. 310, does not exempt any cemetery LANDS BUT THOSE IN THE CITY OP ROCHESTER.
    The act of 1879, chapter 310, which provides that no land actually used and occupied for cemetery purposes shall be sold for “ any tax or assessment,” and which also excepts from the operation of the act the lands held by the city of Kochester, is a general act in its terms, and there is nothing in it manifesting an intent to repeal or alter the prior statute which provides specially for the case of the plaintiff. The two statutes are not inconsistent, and the prior statute is unaffected by the latter. The exception of the lands held by the city of Rochester does not indicate an intention to embrace all other cemetery lands in the state._
    3. Same — When no cloud, action cannot be brought to remove.

      Held, that if it be assumed that the plaintiff is within the exemption by the act of 1879, the exemption is fatal to the plaintiff’s demand for equitable relief, because in that case tbe proceedings of tbe defendant to levy an assessment, created no cloud upon tbe plaintiff’s title, requiring proof of extrinsic facts to remove
    Appeal from a judgment entered upon a decision rendered at tbe Erie special term dismissing tbe complaint.

      JPlumley Kingston, for appl’t; Edmund, I. Plumley, of counsel; Win. E. Worthington, for resp’t; Eranlc G. Laughlin, of counsél.
   Smith, P. J.

Tbe object of tbe action is to have a certain assessment wbicb was imposed by tbe defendant on lands of tbe plaintiff in tbe city of Buffalo, declared to be void and to restrain tbe collection thereof,

Tbe plaintiff is a corporation'created to purchase lands in said city for burial purposes, and sell, the same in small lots to all desiring to purchase.

Tbe assessment in question is levied for tbe purpose of defraying the expense of paving Best Street, one of tbe public streets of tbe city of Buffalo, and leading to, and in front of lands wbicb were 'used and occupied by tbe plaintiff for cemetery purposes, pursuant to tbe provisions of its charter.

That tbe city authorities bad the general power to assess tbe expenses of such improvement upon tbe parcels of land benefited by it, in proportion to such benefit, and that the assessment upon tbe lands of tbe plaintiff was made upon tbe theory that such lands were benefited by tbe work to tbe amount of such improvement, is not questioned; tbe only contention on tbe part of tbe appellant, upon tbe question of power, being that tbe land of tbe appellant, used for cemetery purposes, is by law exempt from assessment for the expense of such improvement.

That contention calls for tbe examination and construction of several successive statutes.

Tbe plaintiff was incorporated by an act of tbe legislature in 1854. (L. 1854, C. 234). By tbe provisions of the ninth section of tbe act, tbe cemetery of the corporation was declared to be exempt from “ all public taxes, rates or assessments.”

In 1870, tbe charter of tbe city of Buffalo was revised, and a provision was inserted therein that “ no lands in tbe city shall be exempt from local assessments, any statute to tbe contrary notwithstanding.”

An impression seems to have been entertained at tbe time that the latter provision trenched upon tbe exemption above declared in tbe plaintiff’s charter, for at tbe next succeeding session of tbe legislature, an act was passed entitled “ an act to amend tbe charter of the, Buffalo City Cemetery, and to restore tbe exemption of cemeteries in said city from local assessment.” L. 1871, C. 154.)

Tbe second section of that act provided that “ all lands in the city of Buffalo, belonging to any incorporated cemetery association, shall be exempt from taxes, rates and assessments to the extent provided in section ten of the ‘ act to incorporate cemetery associations,’ passed April 27th, 1847, any statute to the contrary notwithstanding.”

The third section provided that the above exemption shall not apply to assessments for grading or paving those parts of any streets or sidewalks that shall be immediately in front of, and bounded on the lands of any of the said cemeteries.

The exemption from taxation contained in section ten of the act of 1847, was identical in language with that expressed in the charter of the plaintiff, to wit, from “ all public taxes, rates and assessments.” (L. 1847, C. 133, § 10.).

So, that upon the assumption that the original exemption contained in the plaintiff’s charter, embraced assessments for local improvements, (and upon that assumption only could it have been supposed that the revised charter of the city impaired such exemption), the act of 1871, restored such exemption as to all local improvements, (except grading or paving,) as for instance, the construction of sewers.

But within a few months after the passage of the act of 1871, it was held by the Court of Appeals, that the exemption contained in section ten of the act of 1847, did not extend to a municipal assessment levied to defray the expenses of a local improvement, that not being a “ public ” assessment or tax, within the meaning of the act. The Buffalo City Cemetery v. The City of Buffalo, 46 N. Y., 506. The same construction applies, of course to the exemption contained in the charter of the plaintiff.

It necessarily follows from that construction, which is to be accepted and followed by us as the law of this case, so far as it applies to it, that neither the provision of the revised charter of the city above referred to, nor the act of 1871 affected the exemption contained in the plaintiff’s charter, and that such exemption does not relieve the plaintiff from the assessment in question.

The appellant’s counsel relies also upon chapter 310 of the laws of 1879, the first section of which provides that no land actually used and occupied for cemetery purposes shall be sold for “ any tax or assessment,” and the third section of which excepts from the operation of the act, lands held by the city of Rochester. If that act applies to the plaintiff, it furnishes an exemption from the assessment in question, inasmuch as it extends to every tax or assessment, without limitation or exception, but we concur with the learned judge at special term in the opinion that the plaintiff is not within its provisions. The act is general in its terms, and there is nothing in it manifesting an intent to repeal or alter the prior statute’which provides specially for the ease of the plaintiff. Nor are the two statutes inconsistent, The prior statute is therefore unaffected by the latter. Matter of the Commissioners of Central Park 50 N. Y., 493; McKenna v. Edmunstone, 91 id., 231. Nor does tbe exception of lands held by tbe city of Rochester, sufficiently indicate an intention to embrace all other cemetery lands in the State, including those provided for by special act. McKenna v. Edmunstone, supra.

The appellant’s counsel argues that as the act of 1871, applied to the plaintiff, the provision of the general act of 1847, the rule of construction last above stated as to the effect of a general statute upon a prior special statute, does not apply. But we have seen that the exemption of the plaintiff rests upon the special provision contained in its charter, and is unaffected by subsequent legislation. Besides the act making the provisions of the statute of 1847, applicable to the plaintiff, is in itself special.

If these views are correct, it follows not only that the plaintiff is not exempt from the assessment in question, but also that the action is barred by the one year’s statute of limitation set up in the defendant’s answer.

But if it be assumed that the plaintiff is within the exemption created by the act of 1879, the exemption is fatal to the plaintiff’s demand for equitable relief in this action. In that case the proceedings of the defendant to levy an assessment, create no cloud upon the plaintiff’s title, requiring proof of extrinsic facts to remove it. The statute, being a public act, needs no proof, and the bare reading of it shows the invalidity of the proceedings if the plaintiff’s construction is correct.

The judgment should be affirmed with costs to the defendant.

Bakkeu, Haight and Bradley, JJ., concur.

So ordered.


author: Haight, J.

text:
    James Day as guardian, etc. of Inez H. Case, resp’t. v. Emma Case, applt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    INSURANCE (life) MUTUAL BENEFIT ASSOCIATIONS — DESIGNATION OF BENEFICIARY.
    In 1870, the Locomotive Engineers Mutual Life Insurance Association Issued to one II. M. Case a certificate of membership and policy of life insurance, at the foot whereof and underneath the signatures appeared the following: “ all payments or benefits that may accrue or become due to the heirs of the person insured, by virtue of this policy will be payable to Mrs. H. M. Case, or lawful heirs.” At the time this certificate was issued to Case he had a wife living by the name of Amelia M. Case, and a daughter, Inez H. Case. His wife Amelia M. died in 1878, and subsequently he again married Emma Case, the present defendant, and subsequently died, leaving Emma his widow him surviving, and Inez IL, his only child and heir at law. Held, that the first Mrs. H. M. Case must have been the person meant by Mr. Case in making the designation, and tbe person named in the certificate. That it cannot be assumed he then contemplated the death of his wife, and his subsequent marriage to the defendant. And that the certificate having lapsed as to his first wife, his lawful heir, which was Inez H. Case, became the person designated, and was entitled to the money.

      Appeal from a final judgment entered upon an order sustaining tbe demurrer to tbe defendant’s answer.

      W. A. Sutherland, for resp’t; J. W. Stebbens, for appl’t.
   Haight, J.

On tbe 5tb day of July, 1870, the Locomotiye Engineers’ Mutual Life Insurance Association issued to H. M. Case a certificate of membership and policy of life insurance; at tbe foot thereof, and underneath tbe signatures, appears tbe following: “ All payments or benefits that may accrue or become due to the heirs of tbe person insured by virtue of this policy, will be payable to Mrs. H. M. Case, or lawful heirs.” At the time this certificate was issued to Case he had a wife living by the name of Amelia M. Case, and a daughter by the name of Inez H. Case. His wife, Amelia M., died September 12th, 1878, and subsequently and on the 3d day of February, 1882, he again married Emma Case, the present defendant, and subsequently and on May 29th, 1885, he died, leaving Emma, his widow, him surviving, and Inez H., his only child and heir at law. Subsequent to' his death the association paid into court the sum of $2,922.55, as the amount of benefits due under the certificate.

The question presented is, whether the plaintiff or the defendant is entitled to the money so paid into court.

There was no new designation of a beneficiary after the certificate was issued, or after the death of his first wife. That which we have quoted at the foot of the certificate was the designation made at that time. It was “ Mrs. H. M. Case, or lawful heirs,” meaning Mrs. H. M. Case, or in case she was unable to take by reason of death or other disability, his lawful heirs should become the beneficiary. It is now contended that Mrs. H. M. Case was the name of the defendant, his widow, and that consequently she is the beneficiary named in the certificate. That was not, however, her name at the time the certificate was issued. The only Mrs. H. M. Case at that time was Amelia M. Case, and she must have been the person meant by Mr. Case in making the designation, and the person named in the certificate. We cannot assume that he then contemplated the death of his wife, and his subsequent marriage to the defendant in this action. If Amelia M. Case was the person intended by the designation upon the certificate, then on her death the designation lapsed as to her, and his lawful heir, which was Inez H. Cáse, became the person designated as the beneficiary, and inasmuch as there has been no subsequent designation of any other person, it follows that she is entitled to the money.

It is urged that because the words “ Mrs. H. M. Case ” were used, that it was intended that the certificate should mean one person at one time and another at another time; that it meant Amelia M. at the time that it was issued, but that it meant the defendant at the time of his death.

Such, however, does not appear to us to have been the meaning of the instrument.

The judgment should be affirmed without costs. So ordered.

Bradley and Lewis, JJ., concur.


author: Bradley, J. Barker J.,

text:
    Joseph Haberstro, Resp’t, v. John Bedford and Henry H. Phillips, Appl’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. Arrest — Undertaking on release of prisoner — What to contain— Code, § 187 — Code Civ.Pro.,§575, Sub.3 — 2 Rev. Stat., p. 286, § 59.
    Where the undertaking taken by a sheriff on the release of a prisoner held under an order of arrest in a civil action, was in the form prescribed by section 187 of the old Code, but was made after the Code of Civil Procedure went into effect, and contained a provision that the arrested defendant should “ at all times render himself amenable to the process of the court during the pendency of the action ” in which the order of arrest issued, which words were not properly embraced in the undertaking under Code Civ. Pro., § 575, sub. 3. Held, that the said phrase added nothing to the statutory obligation assumed, and was therefore mere surplusage, and did not vitiate the legal quality of the instrument under 2 Rev. Stat., page 286, § 59. That the undertaking was not taken colore officii, and was valid.
    Barker, J., dissenting.

    2. Same — Bailbond — When liable to sheriff — Rights of bail who FAIL TO JUSTIFY — CODE ClV. PRO., §§ 587, 589.
    • A civil action was brought against one W., in which an order of arrest was issued, and W. was arrested by the then sheriff of Erie County, and the present defendants became W’s bail, and made the undertaking to the sheriff, but upon the bail being excepted to, they failed to justify. A judgment was recovered in said action against W., who had been discharged on said undertaking, and an execution against his property was returned unsatisfied, and one against his person not .found.” An action was then brought by the plaintiff in the said action against W., which resulted in a recovery of a judgment against the sheriff, on the ground that there had been an escape of W., which judgment the sheriff paid, and then brought an action against these defendants, on their undertaking. Held, that the defendants, when they refused or neglected to justify, denied to themselves the rights and privileges of bail. That they could not make a surrender of W. so as to relieve themselves from liability (see Code Civ. Pro., §§ 5S7, 589. That the sheriff owed them good faitli but no active duty to protect them against the consequences of such omission on' their part. That it is not a defense for said defendants that the sheriff might, by a different course of proceedings from that taken by him, have protected himself and them against liability.
    Appeal from judgment entered on verdict in the Superior Court of Buffalo, and from an order denying motion for a new trial. Transferred to this court for review pursuant to Code Civ. Pro., § 278.

      Truman C. White, for appl’ts; Adelbert Moot, for resp’t.
   Bradley, J.

The question is presented whether the undertaking, taken by the plaintiff as sheriff in the action of Douglas vs. Warren was colore officii and void within the statute which provides, tbat no sheriff or other officer shall take any bond, obligation or security by color of his office in any other case or manner than such as are provided by law, and any such bond, obligation, or security taken otherwise than as herein directed, shall be void — 2 R. S., 286, § 59.

This undertaking was in the form prescribed by section 187 of the old Code, but was made after the Code of Civil Procedure went into effect, by which the terms of the undertaking required in a case like that in which this one was taken, was so changed as to omit the provision that the arrested defendant should “ at all times render himself amenable to the process of the court during the pendency of the action “in which the order of arrest issued. (§ 575, sub. 3.) Those words were not properly embraced in the undertaking in question. Andif in any view which canlegit-imately be taken of those words in such a case, they in terms impose any burden upon the person arrested, for the protection of his sureties, not within the authorized provision of the instrument, it was wholly void, and can furnish no support for the relief of the plaintiff in this action. Cook v. Freidenthal, 80 N. Y., 202. Toles v. Adee, 84 N. Y., 222.

This undertaking contains the terms provided by the statute for it. And in such case if the additional words employed may be treated as surplusage merely, the instrument will not be void.

And that depends upon the question whether any use, if valid, could be made of the extra provision in any event as against the principal named in it, or to charge his sureties to any extent otherwise than the omission of such provision would permit. The provision that the .principal would “ at all times render himself amenable to the process of the court” as directed by the old Code, was what was required as equitable bail, of a party taken in custody on writ of ne exeat. The legal and practical effect of this was, that the arrested defendant would render himself amenable to process to enforce performances of any decree that might be rendered against him. Gleason v. Bisby; Clarke, 551; Dunham v. Jackson, 1 Paige, 629; Mitchell v. Bunch, 2 id., 606; McNamara v. Dwyer, 7 id., 239.

It is difficult to see in this extra phrase any legitimate import, as implied to the action at law in which the undertaking was made, not embraced within the provisions required by the statute. Code Civ. Pro. § 575, sub. 3.

It was evidently inserted in the old code in view of the purpose of the commissioners to abolish the writ of ne exeat, and in their expectation and belief that such would be the effect of the legislative adoption of their work. And that they therefore designed to make the provisions for arrest and bail, applicable to actions for both legal and equitable relief. The weight of authority upon the conflict of decisions, is that the writ was not abolished by that code. And it may in that view be' said that the particular provision in question in its purpose and effect was nugatory. It is not apparent, nor am I able to see that the use of these unauthorized words of the undertaking can have any possible import in an action at law, other than such as would be furnished by their exclusion from the instrument. No requirement within the provisions of the undertaking other than that arising out of the liability established by the judgment seems to have been possible in the action in which it was taken. That was an action for the recovery of money only, and the order of ■arrest was supported by the charge of fraudulent appropriation ■of money by Warren, the defendant therein.

The provision of the undertaking that he would render himself amenable to such process as might be issued to enforce the judgment, was all that was applicable in that action, or which to any extent characterized the nature of the obligation assumed by the instrument executed by the sureties.

It would have been otherwise if it had contained the provision usually inserted in bonds on discharge from arrest on ne exeat, that the defendant would “ not depart from or leave this State without the permission of the court,” but nothing in this undertaking imports any such obligation. It has been suggested that the failure of the defendant to obey a subpoena to appear as a witness in the action, might result in a breach of the terms of the undertaking, but the expression used in it has been one of practical use, and construction in proceedings in courts of equity, and it has not been deemed applicable to any such use, or effectual for any such purpose. It relates only to the process of the court to enforce some decree or judgment in the action, and not to any proceeding taken to compel the- attendance of the defendant as a witness in it for the plaintiff.

The statute rendering void unauthorized securities taken by public officers, is applied with much strictness. And in Barnard v. Viele (21 Wendell, 88), NelsON, Ch. J., remarked that a bond was void, although the legal effect of that there in question, and that authorized seemed to be substantially the same ; but it will be observed that there the bond differed in its terms from that prescribed by law, while here, the required terms are adopted; and the only question arises upon the effect of the additional provision inserted in the undertaking. It seems to add nothing to the statutory obligation assumed, and is therefore mere surplusage, and does not vitiate the legal quality of the instrument.

The contention to the like effect in Cook v. Freudenthal, supra, was overcome by the fact that there was a possible con-, tingency in an action of the character of that one, that an execution might issue against the body of the defendant upon the judgment; hence the unauthorized provision of the undertaking rendered it void. But there was no suggestion by the court in that case that its provision to the effect that the defendant would be amenable to the process of the court, added anything in terms to its effect, other than its relation to the enforcement of the judgment of the court. My conclusion is that the undertaking in question was not taken colore officii; and that it was valid.

The proceedings which preceded and led to this action so far as material are, that Alice Douglas brought an action against William T. Warren, in which an order of arrest was issued, and Warren was arrested by the plaintiff, then sheriff of Erie county. And the defendants made the undertaking before mentioned which was received by the plaintiff, and Warren was .discharged. The bail was accepted to, and they failed to justify. A judgment was recovered against Warren in that action. And an execution against his property having been returned -unsatisfied, and one against his person returned not found, an action was brought by Douglas against this plaintiff, in which a .recovery was had, and sustained after a long litigation, which is isomewhat represented by the report of it in 25 Hun, 262; reversed 88 N. Y., 611; 30 Hun, 649; affirmed 96 N. Y., 626. The liability of the plaintiff was as bail, which relation he assumed when the sureties in the undertaking failed to justify. Code Civil Procedure, 587. And they became liable to him for all the damages he should sustain by reason of such omission. Id., § 589.

The purpose of this action is to recover such damages. It is .contended on the part of the defense that the liability of the plaintiff as bail, was occasioned by his own fault, or neglect to protect himself, which his duty to the defendants required him to do in their behalf; and that for his failure to do so they were -relieved from liability to him. It appears that the reason why Warren was not found and taken in the execution issued against his person, was because he had been taken to the Inebriate Asylum at Binghamton, by virtue of an order to that effect, -.made by the county judge of Erie county.

That order seems to have been void, and was so treated by the trial court. The action against the plaintiff was commenced April 10th, 1879, and on the 14th of that month, the plaintiff as .such sheriff, caused the return of Warren into his custody, and might have retained him in his custody, and exoneration have .been obtained by the sheriff as such bail, prior to April 80th, 1879, as his time t'o answer the complaint did not until then expire. Id., §§ 591-595.

On the 15th of April, and while Warren was in such custody, the defendants sought to make a formal surrender of him to the sheriff. .And if it was in their power to do so, it would have been ;au effectual relief for them; but their relation as bail,by reason of tbeir failure to justify had terminated, and did not exist at the time of such attempted surrender, and it was therefore ineffectual as such. Clapp v. Schutt, 44 N. Y., 104. The plaintiff did not continue the retention of Warren in his custody, but on the 24th of April, he accepted an undertaking in behalf of the judgment debtor, and discharged him, caused his re-arrest on the 28th of the month by the coroner, and on the next day he was again set at liberty on giving with sureties another undertaking, both of which were in the form of that first before mentioned. This arrest was evidently caused with a view to the exoneration of the sheriff as bail; and an application was by him made to the court, and the order granting it was reversed. 19 Hun, 1. And after the plaintiff’s term of office expired, and in February 1880, he surrendered Warren to the sheriff, by whom he was taken into custody, and again moved for his exoneration as bail, and the order then granting his application was also reversed. 21 Hun, 320, 82 N. Y., 572. The opportunity of the plaintiff to obtain as matter of right his exoneration as bail, was lost by the discharge of Warren from custody after he was placed there in April, 1879.

The taking of the undertakings thereafter received, was without authority of law, and the discharge of the judgment debtor thereupon permitted, is treated as an escape. And of this defendants complain, and allege such release from custody as matter of defense. It cannot well be claimed that the failure of the plaintiff to keep the debtor in custody was caused by any bad faith on the part of the plaintiff, or with any view to charge the defendants with liability. They denied to themselves the right and privileges of'bail, when they refused or neglected to justify.

The plaintiff owed to them good faith, but no active duty to protect them against the consequences of such omission on their part. It is not therefore a defense for them that he may, by a different course of proceeding than that taken by him, have protected himself and them against liability. When the defendants made the undertaking and he accepted it, the judgment debtor was entitled to his discharge from custody. Code Civ. Pro., § 573; Arteaga v. Conner, 88 N. Y., 403.

And it was only after he by force, of the statute, became bail, that the sheriff was permitted to surrender or take him into custody. At the time he became such the defendants ceased to have any rights or privileges as bail. And their liability became his indemnity for the damages that he might legitimately sustain as the consequence of the relation imposed upon him. The fact that the plaintiff misjudged or was illy advised of his legal rights, and therefore failed to observe and resort to the remedies which may have been available to relieve him from his liability as bail, does not constitute a defense for the defendant without tbe support of bad faitb on bis part toward tbem, which does not appear to be a feature in the case.

As the case is now viewed, the plaintiff was entitled to recover. The amount of damages was a question of some controversy upon the evidence, and in the contention of the parties. None of the exceptions having relation to the measure and amount of the damages, or raising any other question on the trial, seem to have been well taken.

The judgment and order should be affirmed.

Smith, P. J., concurs; Babkeb, J., dissents.

Barker J.,

dissenting.

On appeal from a judgment of the superior court of Buffalo entered upon a verdict, and from an order of that court denying the defendant’s motion for a new trial, founded upon the minutes; the action and proceedings were certified into this court pursuant to section 273 of the Code of Civil Procedure. The defendants became bail for one Warren upon his arrest in a civil action and the plaintiff having excepted to such bail and they having failed to justify, the plaintiff, as sheriff of Erie county, who made the arrest, was charged as bail, he was sued as such and a recovery was had against him which lie paid, thereupon he commenced this action against the defendants to recover the damages which he'had sustained as bail pursuant to section 589 of the Code of Civil Procedure and a recovery was had and a verdict was rendered in the plaintiff’s favor for the sum of $4,778.22.

The plaintiff, as sheriff, arrested one Warren hy virtue of an order of arrest in a civil action wherein one Douglas was the plaintiff and was commanded to hold him to bail in the sum of $1,200. Warren, immediately upon his arrest, presented to the sheriff a bail bond executed by himself and the defendants as his sureties, wherein they jointly and severally agreed “ that Warren should at all times render himself amenable to the process of tire court during the pendency of the action and to such as might be issued to enforce the judgment therein.” The sheriff thereupon discharged Warren from custody. The plaintiff in the action excepted to the sufficiency of the sureties and they failed to justify. Thereafter the plaintiff in that action recovered a judgment against Warren in the sum of $1,243, upon which a body execution was issued to the plaintiff, as sheriff, who returned the same not found.

The sureties having failed to justify, the sheriff became liable to the plaintiff as bail. Code of Civil Procedure sec. 587 Arteaga Connor, 88 N. Y., 403: Clapp v. Schutt, 44 N. Y., 104.

Upon the return of the body execution an action was commenced by Douglas against the sheriff as bail in which he ajipeared and answered, the trial of which resulted in a verdict . against the sheriff upon which judgment was entered for $2,005.38 damages, and $104 costs, which the sheriff paid before the commencement of this action. During the pendency of the action against the sheriff, and after the time to answer had expired, the sheriff moved the court for an exoneration as bail on surrendering Warren into custody. This application was denied. Douglas v. Haberstro, 21 Hun, 320, S. C. 82 N. Y., 572.

The bail taken upon the arrest, unless they justify, or other bail are given and justify, become liable to the sheriff for all damages which he may sustain as bail by reason of such omission. Secs. 587-9. The nature and extent of the sureties, liability over to the sheriff in such a case is clearly defined by provisions of the statute and is measured by the extent of the latter’s liability to the plaintiff in the action. At the time the action was commenced by Douglas against the sheriff as bail his liability was fixed. An execution against the property of Warren having been returned unsatisfied and the sheriff being unable to make an arrest upon the body execution, the extent of his liability as bail was the amount of the judgment recovered against Warren. That liability the sheriff has discharged in full by paying the judgment against himself.

The plaintiff made out a 'prima facie case which entitled him to a verdict on producing the record of the proceedings in the suit against himself if the undertaking executed by Warren and the defendants as his sureties was in due form as required by the statute. On the trial the defendants interposed the objection as against their liability to the sheriff that the undertaking executed by Warren and themselves was not in conformity to the provisions of sec. 575 and is made void by the provisions of sec. 59, chap. 3, title 2, part 3, of the Revised Statutes, which declares, that “ no sheriff or other officer shall take any bonds, obligation or security, by color of his office in any other case or matter than such as are provided by law: and any such bond, obligation or security, taken otherwise than as herein directed shall be void.” Sec. 575 of the Code provides that the defendant on being arrested, may give bail, by delivering to the sheriff a written undertaking in the sum specified in the order of arrest, and where the arrest is made for a cause such as that upon which Warren was arrested the undertaking shall be “that the defendant will, at all times, render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action.” Sec. 561 requires that the order directing the arrest shall state a specified sum in which the defendant is to be held to bail.

The defects of the undertaking which the respondents claim makes the same void as declared by the statute are, firstthat the bond does not state a sum in which the defendant should be held to bail. Second: that it contains an unauthorized provision that the defendant should at all times render himself amenable to the process of the court during a pendency of the action.

The omission to state in the body of the undertaking that the parties thereto were bound in the sum specified in the order of arrest is not, in our opinion, fatal to its validity; on the ground that it is an incomplete instrument. In determining its validity so far as this objection is concerned, we think the order of arrest may be read in connection with the undertaking and the sureties liability in an action against them, would be limited to the sum mentioned therein. In the recitals set forth in the undertaking it is stated that the order of arrest required the sheriff to hold Warren to bail in the sum of $1,200. The argument of the appellant’s counsel Is that without inserting in the undertaking the sum mentioned in the order of arrest, so as to limit the obligor’s liability to that specified sum, they would be liable by the terms of the undertaking to the whole amount of the judgment if it should exceed the sum mentioned in the order of arrest. We'think the position is unsound and that such a construction cannot be reasonably placed upon that instrument. Section 187 of the old Code, which relates to the form of the undertaking, did not require that the same should be in a specified sum and the provision was inserted in section 575 of the present Code so as to remove all doubt as to the extent of the sureties, liability in an action upon their undertaking. It has never been held in an action against the sureties upon an undertaking where a specified sum was not named, that the sureties were liable for the whole amount of the judgment if the same should exceed the amount mentioned in the order of arrest. If the sureties, by the terms of their undertaking, became obligated to pay the judgment which should be rendered in the action, although it should exceed the sum of $1,200, the sum mentioned in the order of arrest, then, in our opinion, it would be void under the statute, as unauthorized by law and exacted by the sheriff by color of his office. Toles v. Adee, 84 N. Y., 222. The second objection presents a more serious question. The undertaking was executed January 7, 1879. At that time section 575 of the present Code was in operation as a substitute for section 187 of the old Code, and the provision of the undertaking that Warren should be amenable to the process of the court during a pendency of the action was unauthorized. Section 187 of the Code of Procedure did contain a requirement that the bail bond should contain a provision of the nature and effect of the one found in the undertaking now under consideration. An undertaking with a similar provision may be demanded of the defendant under the present Code as a condition of his discharge from arrest, but not where the cause of the arrest was such as the one upon which Warren’s arrest was founded. The order of arrest was granted by a judge at chambers and required that Warren be held to bail in the sum of §1,200. He was entitled to a discharge from custody on complying with sub-division 3, section 575, which requires that an undertaking be executed by himself and two sureties conditioned, that he would at all times render himself amenable to any mandate which might issue to enforce a final judgment against him. By section 548 the writ of ne exeat was abolished. Under the provisions of sub-division 4 of section 550, an order of arrest may be granted in a class of cases where, under the old Chancery practice, a writ of ne exeat might issue. But an order of arrest in that class of cases can only be issued on special application to the court. Section 551. When the order of arrest must be granted by the court an understanding may be dispensed with altogether, or if one is required its conditions may be prescribed by the court. Section 560. And if no directions are set forth in the order of the court directing the arrest, then the defendant may be discharged from custody on complying with subd. 1 of section 575. The condition of amenability to the process of the court during the pendency of the action inserted in this undertaking is the same in substance as was usually required on granting a writ of ne exeat under the old practice and the same as is now generally demanded in like eases under the provisions of the present Code. 1st. Barb. Ch. Pr., 654.

It is claimed, beyond all doubt, that the provision of the undertaking executed by the defendants as sureties for Warren that he would “at all times render himself amenable to the process of the court during the pendency of the action ” was wholly unauthorized. It was an onerous condition, and if strictly observed by Warren would have required him to remain at all times, pending the action, within the jurisdiction of the court. The object of the statute in providing the terms and conditions upon which a party under arrest shall be entitled to his discharge was to prevent the exaction of unreasonable or oppressive bail and to leave nothing to the discretion of the officer executing the process.

The sum mentioned in the order of arrest limits the power of the officer, and if he exacts a greater sum to be inserted in the bond or any other condition not authorized by law, the instrument comes within the condemnation of the statute and is void.

In giving a construction to this statute the courts have been uniform in holding sheriffs and other officers who are authorized to take bail from parties in their custody, to a strict compliance with the statute authorizing the giving of bail by parties under arrest. Shaw v. Tobias, 5 Comst., 188; Winter v. Kinney, 1 Comst., 367; Barnard v. Viele, 21 Wend., 88; Webber v. Blunt, 19. Wend., 188; Acker v. Burrall, 21 id. 607; Decker v. Judson, 16 N. Y., 439.

Tbe more recent decisions- on tbe subject are directly in point and may be followed in disposing of this case, as the facts in the cases referred to are not materially different. In Cook v. Friedenthal, 80 N. Y., 202; where the action was replevin an order of arrest was granted and by the provisions of the statute then in force the defendant was entitled to his discharge from custody on giving an undertaking with two sureties, to the effect “ that they are bound in double the value of the property as stated in the affidavit of the plaintiffs for the delivery thereof to the plaintiffs, if such delivery be adjudged, and for the payment to them of such sum as may for any cause he recovered against the defendant.” Code, sections 187-189. The defendant, with his sureties, executed an undertaking, which, among other things, contained a provision, that he would at all times render himself amenable to the process of the court during the pendency of the action. It was held that the undertaking was void as having been taken colore officii for the reason that it bound the sureties for the amenability of the defendant to process in ’ the action during its pendency, an obligation unauthorized by the statute under which the undertaking was given and which could not be required from the defendant as a condition of his release from imprisonment, and that the insertion of the unauthorized condition of the bond brought the case within the provisions of the statute, declaring void unauthorized bonds.

The unauthorized provision cannot be rejected as surplusage upon the ground that in no event could Warren have been subjected to any process of the court during the pendency of the action and consequently no liability could arise undér tins clause of the undertaking. Warren was a competent witness for the plaintiff in that suit and she might have subpoenaed him as a witness to testify in her behalf, and if he had failed to attend and gone beyond the jurisdiction of the court then the sureties would have been liable in an action by the terms of the undertaking. It was not, therefore, an undertaking by the sureties for a liability on their part on the occurrence of an impossible contingency.

In Toles v. Adee, 84 N. Y., 222, the order of arrest required the sheriff to arrest the defendant and to hold him to bail in the sum of one thousand dollars. The sheriff received an undertaking from the defendant in the sum of two thousand dollars and discharged him from arrest. The court, in its opinion, held that the bond was void as beingunauthorized by the statute and referred to the case of Cook v. Friedenthal with approval and :also remarked : The fact that under our practice the bail taken by the sheriff on discharging a prisoner from arrest, stands in some sense both as bail to the action and bail for the sheriff does not, we think, at all affect the application of the statute making void obligations taken colore officii, when tbe undertaking contains conditions not prescribed by law, nor is it, as we conceive, in the power of the plaintiff afterward to adopt the act of the sheriff and thereby avoid the effect of the illegality. Such a principle, if admitted, would defeat the purpose of the statute . . . courts justly regard with great jealousy all departure by officers holding prisoners under arrest from the strict line of duty. The undertaking in this case bound the surety in double the sum authorized by the order of arrest, and if the undertaking was to be regarded as taken by the sheriff in his official character and in the exercise of his official authority it must, both upon principle and authority, be held to be void. But the court in its final disposition of the case held that in view of the other facts disclosed by the case that it was in effect a special agreement between the parties themselves and not an undertaking exacted by the sheriff in his official capacity as a condition of the defendant’s release. And for that reason the same was valid.

The condition of amenability to the process of the court during the pendency of the action is positive and unqualified, onerous in its character and is a provision additional to those required by the statute, and we think is condemned as void by the letter and the spirit of the statute prohibiting officers from taking a bond in any other case or manner than such as are provided by law. The People v. Meighan, 1 Hill, 298.

By the common law an agreement good in part and void in part might be enforced as to the parts which were good and valid. But this statute condemns the whole instrument and changes the common law rule on the subject. If the statute had failed to so declare, it would not have accomplished the purpose intended.

If we are correct in the views expressed as to the invalidity of the undertaking the error is fundamental and is .at the base of the plaintiff’s alleged cause of action and prevents a recovery in any event. It is therefore unnecessary to consider the other points presented by the appellants.

If it be true, as the evidence tended to show, that the defendants requested the sheriff to defend the suit brought against him as bail and that they would pay the costs of such defense in case of a recovery against him, it does not estop them from asserting that they never became liable under the statute for the reason that the bail bond signed by them was void. If the defendants never incurred any legal liability by reason of the execution of the undertaking, then it would seem to follow as a legal conclusion that their promise to pay the costs in the action against the sheriff was without consideration and invalid for that reason.

The judgment and the order should be reversed and a new trial granted, and tbe proceedings remitted to tbe superior court of tbe city of Buffalo.

Bradley, J., read an opinion for affirmance, and

Smith, P. J. concurs.

Haight not sitting.

Judgment affirmed.


text:
    Nelson L. Button, Plff. v. Rathbone, Sard & Co., Deft.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    1. Chattel mortgage — Void ip wot piled as to judgment creditors— Yalid between parties and creditors — 3 Rev. St at., 7 th ed. 2249.
    An action was brought to recover the value of a number of stoves, alleged to have been wrongfully converted by the defendant B. S. and Co. The plaintiff, Button, claimed title to the stoves through a chattel mortgage executed by one Tulley. E. S. and Co., a corporation, claimed title as creditor of Tulley, tbe stoves having been turned over to it in satisfaction of a pre-existing debt. E. S. and Co. took possession of the stoves and removed them, although Button forbade their removal, and at that time informed them of his chattel mortgage, which was not recorded until after such removal. Held, that the mortgage was as between the parties, a valid mortgage of the chattels, but was void because not recorded as a chattel mortgage, except as against creditors and purchasers in good faith. That E. S. and Co. not having a judgment and execution, was not a creditor within the statute and could not attack the mortgage as fraudulent, 3 Eev. Stat. 7th Ed., 2249. (Eeynoldsv. Ellis,) 1KT. Y. State Rep. 786, distinguished.

    2. Same — When creditor can depend possession op goods against MORTGAGEE.
    The statute requiring that E. S. and Co. procure a judgment establishing the validity and amount of their claim before they could proceed by process against the goods, they must have their claims established by a judgment, in order to defend the possession of the goods removed without process after having been forbidden to do so by Button.
    Motion for new trial by tbe defendant on exceptions taken at tbe Monroe circuit and ordered to be beard at tbe general term in tbe first instance.

      Horace Me Gruiré, for plff ; Gr. L. Stedman, for deft.
   Haight, J.

Tbis action Avas brought to recover tbe value of a number of stoves, alleged to have been wrongfully converted by tbe defendent. Tbe plaintiff claimed title to the stoves, through a chattel mortgage executed by one Tulley. The defendant, a corporation, claimed title as a creditor of Tulley, tbe stoves having been turned out to it in satisfaction of a pre-existing debt. The defendant took possession of the stoves, and removed them to tbe city of Albany. Tbe plaintiff forbade their removal and at that time informed the defendant’s agent of bis chattel mortgage. The chattel mortgage Avas not filed until after such removal. Tbe defendant’s claim bad never been reduced to judgment. Tbe parties having agreed that tbe value of tbe property was $850, at tbe conclusion of the evidence the court directed a verdict in favor of tbe plaintiff for that amount.

It is now claimed, first, that tbe chattel mortgage was absolutely void, as against the defendant, the creditor of the mortgagor, in possession of the property before the mortgage was filed; second, that the court erred in refusing to allow the defendant to show that the mortgage was fraudulent.

The statute provides that a mortgage or conveyance intended to operate as a mortgage of goods and. chattels which shall not be accompanied by immediate delivery, etc., shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers, and mortgagees in good faith, unless the mortgage or a true copy thereof, shall be filed as directed by the statute (3 R. S., 7 Ed., 2249).

The question necessarily turns upon the construction of this statute. In the case of Southard v. Benner, 72 N. Y., 424, AlleN J., in delivering the opinion of the court, says: “ A creditor at large cannot assail an assignment or other transfer of property by the debtor as frandulent against creditors, but must first establish his debt by the judgment of a court of competent jurisdiction, and either acquire a lien upon the specific property or be in a situation to perfect a lien thereon, and subject it to the payment of his judgment upon the removal of the obstacle presented by the fraudulent assignment or transfer.” And after referring to the. statute he again proceeds saying, “ The term ‘ creditors,’ as used in the statute, includes all persons who are creditors of the vendor or assignor at any time, whilst the goods remain in his possession or under his control. 2 R. S., 136, sections 5, 6. A creditor by simple contract is within the protection of the statute as much as a creditor by judgment, but until he has a judgment and a lien, or a right to a lien upon the specific property, he is not in a condition to assert his rights by action as a creditor.” [See also Thompson v. Van Vechten, 27 N. Y., 568; Stewart v. Beale, 7 Hun. 405; same case affirmed, 68 N. Y., 629; The Manufacturers, National Bank v. Rober, 19 Weekly Digest, 476; Niagara County National Bank v. Lord, 33 Hun, 557. 564.]

But it is contended on the part of the defendant that it is not proceeding to seize and take into its possession the mortgaged propertjq that it is simply defending the possession previously acquired, and that to defend such possession it is not necessary that it should be a judgment creditor. We are, however, inclined to the view that no such distinction exists in the defendant’s favor. The fact that it took possession of the goods and removed them, without process, after having been forbidden so to do by the plaintiff, does not improve or strengthen its position, or make defenses available that did not previously exist. Had the plaintiff forcibly resisted the taking of the goods, the defendant would have had to proceed by process or else violate the public peace. If it was required to first procure a judgment establishing the validity and amount of its claim before it could proceed by process against the goods, it would seem to follow tbat it should have its claim established by a judgment, in order to defend the possession of the goods.

In the case of Jones v. Graham, 77 N. Y., 628, the plaintiff claimed under a mortgage upon an engine, boiler, saw-mill, planer, belts, saws, tables and other machinery. The mortgage was not filed as a chattel mortgage. The defendant claimed under the two subsequent mortgages which were filed, one of which was given to hinder, delay and defraud creditors, and the other was given to secure a pre-existing debt. The defendant removed the planer from the mill and converted it to his own use. It was held that the plaintiffs were entitled to recover; that the mortgage to Jones was, as between the parties, a valid mortgage of the chattels therein mentioned and was void because not recorded as a chattel mortgage only as against creditors and purchasers in good faith; that the defendant not having a judgment and execution was not a creditor within the statute, etc. This case appears to be squarely in point and we think must control the question under consideration. The defendant not having a judgment is not in position to claim the benefit of the statute and could not attack the mortgage as fraudulent.

Our attention has been called to the case of Reynolds v. Ellis, 34 Hun, 47. In that case we held that a lease containing a mortgage clause, which was not filed in accordance with the provisions of the statutes, was void as against an assignee for the benefit of creditors. This case has recently been affirmed in the court of appeals. 2 N. Y. State, Rep., 786. Danfoeth, J., in delivering the opinion of the court, says: “ The defendant (the assignee) represents creditors and may treat as void all claims made in fraud of their rights. Laws of 1858, chapter 314. He has greater power for this purpose than the creditor himself. The creditor can assert no right until by judgment and execution he has a lien, or a right to a lien, upon the specific property, but in favor of an assignee for his benefit, the legislature having substituted a statutory right in place of these conditions.” This distinction may also serve to harmonize the authorities cited by the defendant’s counsel bearing upon the question of attaching creditors where the sheriff is proceeding under special power given by the statute.

No other question is presented which we consider it necessary to discuss.

The motion for new trial should be denied and judgment ordered for the plaintiff upon the verdict.

So ordered.

Beadley and Childs, JJ., concur; Angle,!., not sitting.


text:
    The Pfaudler Barm Extracting Bunging Apparatus Co., Resp’t v. James Sargent et. al., Appl’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887).
    1. Costs — Fees paid for stenographer’s minutes are not taxable DISB URSEMENTS.
    Fees paid for a copy of stenographer’s minutes of a trial in an action are not included among the disbursements which may be properly taxed.
    2. Appealjfrom judgment is waiver of right to move for retaxation OF COSTS.
    An appeal from a judgment is a waiver of the right to move for a retaxation of costs.
    Appeal from an order of tbe Monroe special term denying defendant’s motion'for a re-taxation of costs.

      J. & Q. Van Voorhis, for appl’ts; Theodore Bacon for resp’t.
   Haight, J.

After tbe trial of this action the plaintiff procured a copy of the stenographer’s minutes and paid his fees therefor, amounting to $39,45, which sum the clerk taxed as costs in the original judgment. This taxation was approved by the special term, but upon appeal to the general term, the item was disallowed (39 Hun, 192.) An appeal was also taken to the general term from the judgment which was affirmed. On entering the judgment of the general term, plaintiff again presented to the clerk the item for stenographer’s fees, with an affidavit to the effect that the minutes were necessary in order to enable him to propose amendments to the case. The clerk again taxed this item and on motion to the special term for re-taxation, such act was approved and the defendant again appeals to this court.

There is no question in our minds but that the item was improperly taxed by the clerk. There is no pretense that the plaintiff did, or that it was necessary for it to procure two copies of the stenographer’s minutes. The copy that was procured, as we have seen, was procured before the taxing of the costs upon the entry of the original judgment. The question as to whether or not that item was properly taxable has been once determined in this court and the question is consequently res adjudicata. If there was any purpose for which the stenographer’s minutes were necessary when procured, it was the duty of the plaintiff to have shown it upon that hearing.

Again, the fees of the stenographer for a copy of his minutes are not a taxable item of disbursements, even for the purpose of enabling a party to propose amendments to • a case. A party upon trial has the right to take minutes or to procure others to take minutes for him, but his own services in taking the minutes, or the services of the person procured by him to take them, could not be taxed as disbursements under the Code. If a party sees fit to rely upon the stenographer for the minutes of the trial, he may do so, but the amount paid him therefor is not a taxable item of disbursements any more than the amount which he had paid a clerk to keep the minutes would be. [Hamilton v. Butler, 30 How., 36; Spring v. Day, 44 How., 390; Colton v. Simmons, 14 Hun. 75; Provost v. Farrell, 13 Hun, 303-306. The case of Sebley v. Nichols, 32 How., 182, has not been followed or approved.]

But there is a doubt in reference to our power now to grant relief. It appears that the defendant appealed from the judgment entered upon the decision of the general term, to the court of appeals, on the 13th day of May, 1886. That the return upon appeal was filed with the clerk of the court of appeals, May 15th, 1886. That the appeal was noticed for argument by both the appellant and respondent. That on the 22d, day of May, 1886, the motion papers herein were served for a relaxation of costs. In the case of Guckenheimer v. Angevine, 16 Hun, 453, it was held in this court that an appeal from the judgment was a waiver of the right to move for a re-taxation. This decision does not appear to have been reversed or questioned, and we now fail to discover any reason why it should not be followed. For this reason the order appealed from is affirmed, but without costs of this appeal to either party.

So ordered.

Bradley, Angle and Childs JJ. concur.


author: Angle, J.

text:
    Greene County Bank Resp’t. v. Bank of Batavia and Henry Tarbox as Assignee.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887).
    1. ASSIGNMENT FOR BENEFIT OF CREDITORS — ACTION TO SET ASIDE — WHO MAY BRING.
    Where a general assignment for the benefit of creditors was of the individual property of each member of a firm and gave a preference to the individual creditors of each out of his individual property, and also assigned the partnership property, giving the partnership creditors a preference as to that. Field, a party being a -judgment creditor of one member of the firm individually, and also of the firm might maintain an action to set the assignment aside as fraudulent and void as against creditors.
    2. Same — Parties to action.
    In the ordinary creditor’s action to set aside as fraudulent an assignment in trust for the benefit of creditors the cestuis que trust are not necessary parties, it being an exception to the general rule prevailing in equitable actions which requires that in suits relating to trust property the cestuis aue trust as well as the trustee must be made parties.
    Appeal from interlocutory judgment for plaintiff on overruling demurrer to complaint.
    The action is to set aside an assignment made by James H. Jones and Evelyn F. House, individually and as composing the firm of Jones & House, of their individual and firm property to the defendant Henry F. Tarbox, for tbe purpose of paying their individual and joint debts. The complaint avers the recovery of a judgment by plaintiff in the supreme court against the defendant James H. Jones, its docketing and the issuing of an execution thereon to the proper county, and' its return wholly unsatisfied.
    It also avers the recovery of two judgments in the supreme court by plaintiff against the firm of Jones & House, their docketing, the issuing of executions thereon to the proper. county and the return of such executions wholly unsatisfied.
    It also avers that after contracting the debts on which said judgments were recovered, the said James H. Jones and Evelyn F. House made a general assignment of all their partnership and individual property in trust for the payment of their firm creditors and for the payment of their individual debts, which assignment was recorded Sept. 28th, 1883. That Tarbox has accepted the trust and taken possession of the assigned property : that by reason of preferences in the assignment the plaintiff cannot receive anything thereunder, or collect its said judgments : that the assignment was made with intent to hinder, delay and defraud the creditors of the firm and the creditors of the individual members of the firm. Various acts, facts and particulars extrinsic to the assignment. are alleged as showing fraudulent intent. Other allegations in the complaint are stated in the opinion.
    The defendant Tarbox demurred to the complaint assigning for cause that it appears upon the face thereof that causes of action are improperly joined, viz: a cause of action against defendant James H. Jones, individually, and a cause' of action against him and Evelyn F. House jointly as copartners, which causes of action arise out of and relate to distinct and independent transactions, and each of them does not affect all the parties to the action. The Bank of Batavia assign the same cause of demurrer and also, that the complaint does not state facts sufficient to constitute a cause of action.

      H. F. Tarbox, for appl’ts; N. A. Woodward, for resp’t.
   Angle, J.

The assignment is of the individual property of each member of the firm and gives a preference to the individual creditors of each out of his individual property, it also assigns the partnership property, preferring the partnership creditors as to that. In our opinion an action may be brought to set aside such an assignment for the reasons assigned in this complaint, by either an individual or partnership judgment creditor, and that the plaintiff being judgment creditor of one member of the firm individually and also of the firm, is properly seeking by this action a remedy for the collection of both classes of judgments.

Wait on Fraudulent Conveyances and Creditors Bills sec., 108, and notes; Bradner v. Holland 33 Hun. 290.

Although no case precisely like the present is found, yet these authorities and the cases cited therein contain principles decisive of the present.

This conclusion disposes of the demurrer of the assignee, and the first cause of demurrer assigned by the Bank of Batavia.

The second cause of demurrer by the Bank of Batavia is that the complaint does not state facts sufficient to constitute a cause of action as against that bank. The Bank of Batavia is a preferred creditor for about $18,300, in the aggregate, and the complaint avers that, “ the sum of $10,000 or thereabouts was paid and delivered by said defendant Henry F. Tarbox, as assignee, to said defendant the Bank of Batavia pursuant to such preference expressed in said instrument or assignment, and that the said moneys so paid are retained and kept by the said Bank of Batavia under the claim and pretence that said instrument is valid and that it derives a right thereto under and by virtue thereof.”

The complaint also avers “ that - the said Bank of Batavia and the said Henry F. Tarbox, who is, and was, its vice-president and attorney, fraudulently conspired with the said assignee to procure said assignment to be made in the manner and form aforesaid, knowing the same to be fraudulent in the particulars and for the reasons above stated and with intent to procure an unjust preference.”

While it is abundantly settled that in the ordinary creditor’s action to set aside a fraudulent assignment in trust for the benefit of the creditors the cestuis que trust are not necessary parties, yet, this is an exception to the general rule prevailing in equitable actions which requires that in suits relating to trust property the cestuis que trust as well as the trustee must be made parties. Barb., on Parties, 529.

We are cited to no authorities holding that such cestuis que trust are not proper parties if the plaintiff sees fit to bring them in, nor is it necessary for us to express any opinion on that question.

In view of the above quoted allegations in the complaint, and the praj'er in the demand for judgment, “ that the defendant, the bank of Batavia, be adjudged to account for, and deliver and pay over to the plaintiff or such receiver the moneys and property it has received, or that have been paid over to it by said assignee, or under said assignment,” we think there is no doubt about the propriety of that bank being made a defendant.

The interlocutory judgment appealed from is affirmed with costs of appeal; with leave to withdraw demurrer and to answer on payment of costs of demurrer and of his appeal.

All concur.