author: Barrett, J.

text:
    Gibson W. Fairman, App’lt, v. Charles B. Brush, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Referee—Code Crv. Peo., §§ 1022, 1023.
    The court, at special term, has power, in the interest of justice, to remit his findings to a referee with directions to make them more definite and certain by adding to them.
    2. Same—Findings.
    Where a broker brings an action to recover commissions, alleging that ■he made some eight sales, a finding by a referee that plaintiff was employed in “ individual instances, in some of which he was not fully paid,” is too indefinite.
    Plaintiff brought this action against defendant as executor of John McLaren, deceased, claiming commissions under an alleged agreement with testator, whereby plaintiff was to have commissions on all sales procured by him, some eight in number. The referee to whom the case was sent found that he was employed by decedent in “ individual instances,” in some of which he was not fully paid for all the services; and this appeal was brought from an order of special term denying a motion to send the case back to the referee to make his findings of fact sufficiently definite to enable the appellant to present the point actually decided.

      Theodore B. Gates, for app’lt; B. Estes, for resp’ts.
   Barrett, J.

—There is nothing in §§ 1022 and 1023 of the Code of Civil Procedure which deprives the court of power to require proper findings. These sections undoubtedly change the former practice, whereby findings originally insufficient in form or indefinite in substance might be clarified upon the settlement of the case. This was all that was decided in Gormerly v. McGlynn, 84 N. Y., 284, where the revisors’ note to § 1023 was referred to, and their view was seemingly approved that the method of proceeding by motion to compel findings where the referee refuses to make them at all has not been abolished.

Cases where the power in question has been denied have proceeded either upon a misapprehension of what was decided in Gormerly v. McGlynn or upon a too narrow view of what was contemplated by §§ 1022 and 1023.

We have no doubt that the special term has power in the interest of justice to add to the findings made by it, and we think it equally clear that the court may remit his findings to a referee for a similar purpose. We so held in Schultheis v. McInerny; Law Journal, April 22, 1891; 37 N. Y. State Rep., 537,and we no see reason for altering the opinion there pronounced. This is a power which is so far inherent that it would require an express prohibition to deprive the court of its exercise. It is analogous to the power always exercised by the court over its judgments, records and proceedings in the interest of justice.

In the present case the application should have been granted. The finding that the plaintiff rendered services for the testator which the latter paid in full is .too indefinite to raise the questions presentedi The referee should have found specifically on each of the items of the plaintiff’s demand, and then he should have specifically found the amount paid.

The order should be reversed, with costs, and the motion granted.

Van Brunt, P. J., and Patterson, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    William D. Mackey et al., App’lts, v. Benjamin Rausch et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Wager contracts.
    Even though contracts are made under the rules of the Coffee Exchange, which require the actual delivery of the merchandise, if the jury find that no merchandise was to he delivered, but only the differences settled for, there is an intention to make a wager contract; and the rules of the Exchange would not make it otherwise.
    3. Same—Evidence—Possession or commodity sold.
    Where the only question submitted to the jury was whether they were satisfied from the evidence that the form of a contract of sale was resorted to for a mere cover for betting on the future price of the commodity agreed to be sold, the question as to whether either of these parties had the merchandise in possession at the time of making the contract was entirely immaterial.
    Appeal from judgment entered -on the verdict of a jury, and dismissing the plaintiffs' complaint, and from an order denying motion made upon the minutes for a new trial.

      Charles B. Hubbell, for app’lts; Benj. Rausch, for resp’ts.
   Van Brunt, P. J.

—This action was brought against one Hugh Littlejohn to recover upon a promissory note made by him to the order óf the plaintiffs, who were copartners doing business as coffee brokers upon the Hew York Coffee Exchange. Said Littlejohn admitted in his answer the making of the note and set up various defenses, the only one of which relied upon on the trial was that the note was given in payment of losses incurred in transactions which were bets and wagers, and void under the statutes of the state.

It appeared from the evidence in the case that the losses had been incurred in speculations in options in coffee for future delivery, and the defendants, upon the trial, gave evidence which, it is claimed, tend to show that there was no intention upon the part of the parties that there should be actual transactions, and that the form of contracts of sale and purchase were resorted to as a mere cover for betting on the future price of the commodity agreed to be bought and sold; and that that was the real meaning of the transactions between the parties, and that no actual sale or purchase was intended.

Upon the part of the plaintiffs contradictory testimony was given, and the case was submitted to the jury under a charge from ¿the judge that it was incumbent upon the defendants to make out this defense, otherwise the plaintiffs were entitled to the judgment which they sought. The jury rendered a verdict in favor of the defendants, as assumed by the counsel for the ¡fiaintiffs, although there is no evidence of that fact contained in the judgment roll as printed in the case, and from the judgment entered upon such verdict this appeal is taken. The' principal grounds' urged upon this appeal are, that the court erred in not granting the plaintiffs’ motion for a direction of a verdict at the close of the defendants’ case, and in denying plaintiffs’ motion for a new trial upon the ground that the verdict was against the weight of evidence.

It is undoubtedly true that there appear to be contradictions in the defendant’s testimony, he having first testified that nothing was ever said about the possession of the coffee, nor did he ever state to them that he had no coffee to sell, and that nothing was ever said about the possession or actual delivery of the coffee, and that he subsequently stated in his examination that the plaintiff told him it was not necessary to deliver the coffee, but that it was necessary to pay fifty cents a bag margin, and that the transaction would be settled, the difference between purchase and sale price.

It is also true that the plaintiff denied having had any such conversation with the defendant and testified that he never told Littlejohn that he was willing that transactions should be made in which no delivery of coffee was contemplated; and that they were prepared, at any time, to deliver the coffee if called upon to do it,, and that coffee was not delivered to him because he did not pay the money to receive it, but closed the account by ordering its sale; that they never had any understanding with Littlejohn, directly or indirectly, that this transaction should not contemplate a delivery of the coffee.

This presented a question of fact which was to be determined upon the evidence of Mackey & Littlejohn, and the other evidence in the case, by the jury, and this question was submitted to the jury by the learned court with proper instructions, that the burden of proof was upon the defendant to establish the defense.

Tbe jury having chosen to believe the statement of the defendant, and having drawn the inference therefrom, which they had the right to do, that it was the intention of both these parties that there should be no actual transactions but simply a settlement of differences, the case is brought within the decision declaring such contracts to be wager contracts, and not enforceable at law.

It is true that it is claimed by the plaintiffs that these contracts were made under the rules of the exchange, and these required the actual delivery of the merchandise.

But if it was the understanding of the parties, as the jury have found, that no merchandise was to be delivered but only the differences settled for, then there was an intention to make a wager contract, and the rules of the exchange would not make it otherwise.

It is urged that it was error to admit the question asked of Littlejohn, whether at the time the coffee was sold for him he had any coffee, and the question asked the plaintiff whether at the time he made certain sales he had the coffee in his hands.

It certainly would not have been error to have excluded it, but we fail to see, in the way in which the case was submitted to the jury and the questions they were called upon to pass upon, the plaintiff suffered any injury, because the jury were instructed that contracts for future delivery where a party was not in possession of the merchandise was a perfectly valid contract. The only question submitted to the jury was whether they were satisfied from the evidence that the form of a contract of sale was resorted to for a mere cover for betting on the future price of the commodity agreed to be sold.

Therefore, the question as to whether either of these parties had the merchandise in possession at the time this contract was made was entirely immaterial. The jury was so instructed, and it was not pretended that they were required under the circumstances to have the possession of the merchandise, the subject matter of the contracts, in order that the contracts should be legal.

We see no reason for disturbing the verdict of the jury, and the judgment and order should be affirmed, with costs.

Daniels, J., concurs.


text:
    In the Matter of the Probate of the Will of Samuel B. Peck, Dec’d.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Surrogate’s court—Appeal—Findings—Code Crv. Pro., § 2545.
    The appellant from a decision of the surrogate must procure to he filed by that officer such findings of fact as will present the questions which he desires to argue.

      Appeal from the decree of the surrogate admitting to probate a certain paper writing purporting to be the last will and testament of Samuel B. Peck, deceased.

      John J. Adams, for app’lt; James D. Bell, for resp’t
   Barrett, J.

—The record discloses a failure to comply with that part of § 2545 of the Code of Civil Procedure which' provides that upon the trial of an issue of fact “the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law.” Thus we have nothing-before us except the testimony, the decree and the notice of appeal. It has been repeatedly held that this plain language of § 2545 cannot be disregarded, and that the appellant must procure such findings as will present the questions which he d'esires to argue. Angevine v. Jackson, 103 N. Y., 470; 3 N. Y. State Rep., 643; In re Hood, 104 N. Y., 103; 5 N. Y. State Rep., 501; In the Matter of Falls, 29 N. Y. State Rep , 759. In Hewlett v. Elmer, 103 N. Y., 164; 3 N. Y. State Rep., 1, it was said that by this § 2545 the practice upon a trial by the surrogate of an issue of fact, and preparation of papers upon which an appeal should be heard, was assimilated to the proceedings upon and after trial by the court without a jury.

“ The purpose,” said Finch, J., in Angevine v. Jackson, supra, “ was to- assimilate the practice upon appeals from a surrogate’s decree in the prescribed cases to that which regulated appeals from a judgment rendered by the court or a referee, and to substitute a system which would point out specific errors, and evolve the exact questions intended to be reviewed.” The authority of these cases with regard to the" necessity for a decision by the surrogate, stating separately the facts found and the conclusions of law, has never been questioned. Indeed it could not well be questioned while the language which we have quoted from § 2545 remains unrepealed.

The necessity for such findings is expressly recognized in Burger v. Burger, 111 N. Y., 523 ; 20 N. Y. State Rep., 105, where the doctrine of Angevine v. Jackson was modified, but only as to the requirement of exceptions to findings of fact as to which there is a conflict of evidence. When the learned court there speaks of an appeal from the decision of the surrogate on the facts as well as the law, reference is undoubtedly had to the “ decision ” defined by § 2545.

The opinion of Andrews, J., throughout discusses the necessity of exceptions to findings of fact as distinguished from conclusions of law, and the result of this late decision is to assimilate the practice on appeals from a surrogate’s decree still more closely to that which governs in ordinary litigation. It follow that the present decree was irregular, not having been based upon a proper11 decision.” The remedy, however, was by motion to set it aside for the irregularity suggested or to propose findings and except to a refusal to pass upon them. The appellant is not, therefore, in a position on the present appeal to obtain a proper review of what was actually decided. The point is expressly taken by the respondent and cannot be ignored. We can afford the appellant, therefore, no relief upon the record as it stands. But as the responsibility is not wholly the appellant’s and as there seems to.have been some misunderstanding with regard to the practice, we feel justified in following the course adopted by the learned general term of the fourth department in the Matter of Falls, supra. That course will enable the parties to apply to the surrogate for a decision in writing such as we have pointed out. Upon a proper record being then made up, the appeal can he re-submitted, without further formalities if the parties agree.

Case sent back for such action and proceeding as counsel may deem advisable.

Van Brunt, P. J., and Patterson, J., concur.


author: Per Curiam.

text:
    In the Matter of the Probate of Will of Virginia P. Kaufman.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Surrogate’s court—Appeal—Findings must be filed.
    The provisions of § 2545 of the Code as to the filing of findings of fact by the surrogate before appeal brought are mandatory and cannot be disregarded.
    Appeal from surrogate’s decree of New York county refusing probate to the alleged will of Virginia P. Kaufman, deceased.

      Louis Marshall and Adolph L. Sanger, for app’lt; Wise & Lichtenstein, for resp’t
   Per Curiam.

—At the present term of the court we had occasion to consider the question of the necessity of a surrogate making findings of fact in probate cases. In the Matter of Samuel B. Peck, deceased, it was decided that the provisions of § 2545 of the Code were mandatory and could not be disregarded.

In the present proceeding it appears from the record that the surrogate was expressly asked to make findings of fact, which he refused to do, making a record of his refusal, to which a formal exception was taken; and under the ruling we have made, above-cited, In the Matter of Peck, it is clear the refusal of the surrogate to make any findings was erroneous, and, therefore, the decree must be reversed.

Van Brunt, P. J., Barrett and Patterson. JJ.. concur.


text:
    Levi P. Morton et al., Resp’ts, v. Charles P. Palmer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Judgment—Action on—Code Crv. Pbo., § 1913.
    Code Civ. Pro., § 1913, forbidding the maintenance of an action between the original parties to a judgment of a court of record, has no application to a judgment recovered in the circuit court of the United States.
    Appeal from order of special term, New York county, overruling demurrer as frivolous and directing judgment for the plaintiff, and from the judgment entered thereon.

      Forster & Speir, for app’lt; Robinson, Bright, Biddle & Ward, for resp’ts.
   Van Brunt, P. J.

—We see no reason for interfering with the order made by the court below. The rule is well settled that a, party has a right to sue on any cause of action which he holds, and any statutory exception to that right must be definitely expressed.

The only statutory restriction to which our attention has been called, and which we have been able to find, is § 1913 of the Code, which applies only to judgments rendered in a court of record in this state. This clearly has no application to a judgment recovered in the circuit court of the United States, as has been distinctly held in the case of the Goodyear Dental Vulcanite Co. v. Frisselle, 22 Hun, 174.

The judgment and order should be affirmed, with costs.

Patterson, J., concurs.


text:
    Dunlap’s Cable News Company, App’lt, v. David M. Stone, as Pres’t of the N. Y. Associated Press, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Injunction.
    An unincorporated association engaged in the business of collecting and furnishing news to the newspapers.will not, at the instance of a foreign corporation organized for the same purpose, be restrained by injunction from enforcing a by-law that its members shall not take news from other news agencies.
    Plaintiffs, incorporated under tne laws of New Jersey for the purpose of collecting and furnishing news to newspapers, brought an action against defendant, an unincorporated association carrying on the same business in the state of New York.
    The defendant had a by-law forbidding any of its members from entering into any arrangement for taking news from any other news agencies, and plaintiff asked that the defendant and said New York Associated Press, its officers, agents or servants, and each of them, be enjoined “ from addressing any communications or letters to any newspapers, their publishers or editors, threatening to withdraw, and also from withdrawing, the services of said New York Associated Press to said newspapers in case they continue to avail themselves of the services of this plaintiff; and that they further be directed to withdraw and countermand such as have already been sent; and that the New York Associated Press be further enjoined from enforcing, or attempting to enforce, in any mode or manner whatsoever, the said by-law in any way unlawfully interfering with the business of this plaintiff. ”
    The special term denied plaintiffs’ motion for an injunction pendente lite and they brought this appeal.

      Nathan Bijur, for app’lt; A. G. McDonald, fo resp’t
   Barrett, J.

—The plaintiff’s application amounted to nothing more nor less than an attempt to restrain the defendants from transacting their lawful business in their own way, lest in doing so the plaintiff’s rival business should be injured or diminished. The defendant’s have a perfect right to limit the sale of the news which they collect to those who contract to deal exclusively with them. They are private individuals, dealing, it is true, with a large public, but governed by no corporate duty or statutory obligation. They certainly owe no duty to the plaintiff, which is a foreign corporation attempting to compete with them, and with whom they have no privity or relations of any kind..

When one of the defendant’s customers comes forward as a suitor it will be time enough to consider whether such customer can with impunity violate his contract, and while dealing with the plaintiff demand a continuance of the defendant’s services. It certainly is an extraordinary demand on the part of a competitor that the defendants be enjoined from enforcing their agreements with their customers, or from refusing to accept new customers without the ordinary limitation as to exclusive dealing. The plaintiff has no standing to maintain such an action, and its complaint is devoid of equity. It may be added that the injunction sought was almost in the precise terms of the prayer for relief, and the granting of it would have been equivalent to final judgment before trial. Such an injunction is only granted in an extreme case and where the right is absolutely clear. No such case has here been presented, but rather the reverse. The application for an injunction pendente lite was, therefore, without merit, and was properly refused.

The order appealed from should be affirmed, with costs. ‘

Patterson J., concurs.


text:
    Hermann Passavant et al., Resp’ts, v. George S. Bowdoin, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Assignment fob benefit of creditors—Parties to action to recover MONETS PAID TO PREFERRED CREDITORS UNDER VOID ASSIGNMENT.
    Where a judgment has been granted setting aside an assignment as ' having been made in fraud of creditors and appointing a receiver, the assignee therein is a necessary party defendant in a subsequent action to reach moneys paid to preferred creditors under such void assignment.
    3. Same.
    Such subsequent action must be brought in the name of the receiver appointed under the judgment creditors’ action to set aside the assignment, and not in the name of the creditors themselves.
    Appeal from interlocutory judgment granted at special term, New York county, overruling demurrer to the amended complaint.
    G. E. Tracy, for app’lt; John J. Adams, for resp’ts.
   Van Brunt, P. J.

—The complaint alleges the recovery of separate judgments against the late firm of Halstead, Haines & Go., and the issuance and return of execution unsatisfied; and that the debts for which the judgments were recovered existed prior to the 12th of July, 1884, upon which day the said firm of Halstead, Haines & Co. made an assignment for the benefit of their creditors to one Lewis May, who accepted the trust, and that in May, 1888, one Samuel Goldberg was duly substituted as assignee in place of Lewis May; that by the terms of the general assignment said assignee was directed to pay a large number of preferred debts, amongst which was a large claim of the defendants, composing the firm of Drexel, Morgan k Co., amounting to the sum of $32,500; that said assignee, May, under and by virtue of the assignment, paid to the defendants said sum of $32,500 directed by the assignment out of the proceeds of the property.

The complaint further alleged that the said assignment was made by the firm of Halstead, Haines k Co., with intent to hinder, delay and defraud creditors; and that after the return of the plaintiffs’ executions unsatisfied as aforesaid, actions were immediately thereafter commenced by them in the supreme court against the said firm of Halstead, Haines k Co., and their assignee May, to set aside the said general assignment; and that in said actions, which were duly tried, decrees were duly recovered and entered by the plaintiffs in December, 1888, setting aside the said general assignment as having been made with intent to hinder, delay and defraud said creditors; and that in and by said decree a receiver was appointed, and it was decreed that out' of the moneys and property belonging to said firm of Halstead, Haines k Co., which came into the hands of said receiver, the plaintiffs’ judgment, with interest and costs, was to be paid; that said decree is in full force and effect; but by reason of other and prior liens created by the filing of other bills of complaint to set aside said assignment by other creditors and decrees rendered thereon in favor of the plaintiff, there are not sufficient funds in the hands of such receiver with which to pay the plaintiffs’ judgment.

And the complaint further alleges that the plaintiffs, by virtue of said decree, are entitled to recover from the defendants, the firm of Drexel, Morgan k Co., the amount received by them under the preference in said assignment, and' to have such money applied in satisfaction of the plaintiffs’ judgments set forth herein and mentioned in said decree.

The complaint further alleges that Halstead, Haines k ■ Co. colluded with the preferred creditors, including the firm of Drexel, Morgan & Co., whereby said preferred creditors obtained judgment for their alleged claim; and that said Halstead, Haines k Co. were not at any time indebted to Drexel, Morgan & Co. in the sum of $32,500; that the actual amount due was about $25,000; and that the object and design, of the defendant assignors in preferring in said assignment the said Drexel, Morgan k Co., for the sum of $32,500, and of the defendants in receiving payment of the same, was to reserve fof the use and benefit of the assignors, out of said assigned estate, the excess over and above what was justly due to the said defendants in fraud of the non-preferred creditors, including these plaintiffs. And judgment was demanded first that the assignment be declared fraudulent and void as against these plaintiffs and that the payment of such preference to the defendants Drexel, Morgan k Co., be adjudged null and void and that the judgment of said Drexel, Morgan k Co., be adjudged null and void and that plaintiffs have a personal judgment against them for the moment of said judgment, and that Drexel, Morgan & Co., be directed to pay over to the plaintiffs or to their attorney the amount of their preference together with interest thereon to the date of the commencement of this action.

The defendants demurred, to the complaint upon the ground that the plaintiffs have no legal capacity to sue in that it appears that one Samuel Goldberg was before the commencement of this action duly appointed assignee and duly qualified and took possession of said property as such assignee; and that the plaintiffs had no legal capacity because of the appointment of the receiver ; and upon the ground of 'the misjoinder of parties plaintiff in that all the plaintiffs have not a united interest; on the ground of defect of parties in that neither the plaintiff nor the receiver are made parties, and on the ground of misjoinder of causes of action, and that the complaint does not state facts sufficient to constitute a cause of action.

It seems to be clear that there is a defect of parties. The plaintiffs seek to have a decree declaring the assignment void. The assignee or substituted assignee are necessary parties to such an action. It is claimed, however, that neither the assignee nor the substituted assignee are necessary parties, because they have already a judgment declaring the assignment void. But even if that is the fact the substituted assignee has the right to contradict that allegation, and it is possible he may be able to prove that they have no such judgment.

But if the plaintiffs have such a judgment then they cannot bring this action based upon the same judgments which formed the basis of that decree to again have the assignment set aside. And as far as their complaint is concerned,seeking to get a decree setting aside this assignment, upon its face it establishes no cause of action, it appearing that they have already obtained such relief on behalf of the very judgments upon which this action is based. It further appears that for the protection of this very judgment, in the action in which the decree was entered declaring this assignment to be null and void, they have had a receiver appointed of all the assigned estate.

Our attention has not been called to any principle by which a judgment creditor after having set aside an assignment upon the ground of fraud can maintain an action as such judgment creditor for the purpose of collecting the assets belonging to the estate, a receiver thereof upon behalf of such judgment creditor having .been appointed.

It is claimed that the receiver appointed in the plaintiffs’ former action was appointed simply for the purpose of securing satisfaction of the plaintiffs’ judgment out of such funds as regained in his hands as receiver in former suits.

We fail to find any allegation in the complaint limiting'the appointment of the receiver in the manner stated. Such receiver was undoubtedly appointed of the assigned estate, not only of the money in hand but of the assets of the estate which he might reduce to possession.

Many authorities are cited by the learned counsel for the respondents to show that a receiver does not take the legal title to the property of which he is appointed receiver, but it will be found upon examination that all those cases are adjudications respecting the powers of receivers appointed pendente lite, mere custodians of the estate until the decree, and not receivers appointed by a final decree who are to collect the estate, reduce the same to possession and out of the funds thus received pay the judgment in the action in which the receiver was appointed.

Attention is called also the case of Gere v. Dibble, 17 How., 31; Porter v. Williams, 9 N. Y., 142, and Bennett v. McGuire, 5 Lans., 187, which established the proposition that it had not up to that time been held that a judgment creditor could not maintain an action to set aside a fraudulent assignment after the appointment of a receiver in another action.

These cases have no application to the case at bar. The receiver in question has been appointed for the protection of the very judgment which forms the basis of this suit. As has already been ■shown, these plaintiffs cannot maintain this action to set aside the assignment, because they have already a decree to that effect and a receiver appointed in that aption.

While it may be true that in an action to set aside an assignment, judgment may be included against fraudulent preference creditors for the recoupment of the amount collected upon their preference, yet after a receiver has been appointed in an action to set aside the assignment, who has been clothed with the title to all the assets of the estate and with the authority to collect such assets by the very nature of his appointment, it is difficult to see how the creditor upon whose behalf the receiver has been appointed can intervene and seize upon some part of the estate.

As already stated, he cannot maintain an action to set aside the assignment, because that it is already done, and under the guise of an action to set aside the assignment, he is seeking to seize upon the assets of the firm of which a receiver has been appointed.

I think, therefore, that the demurrer was well taken, and that the judgment should be reversed, with costs in this court and in the court below, with leave to the plaintiffs to amend upon payment of the costs of appeal and of demurrer.

Daniels, J;, concurs.


text:
    Patrick J. Burke, Resp’t, v. The New York, N. H. & H. R. Co., App’lt.

      (New York, Superior Court, General Term,

      Filed May 4, 1891.)

    Answer—Defense—Separate statement.
    In an action brought against a railroad company to recover the penalty prescribed by chapter 185 of the Laws of 1857, for charging more than the legal fare, a portion of the answer was “ defendant reserving the objection that this action cannot be maintained by reason of the fact that the summons herein was not served upon the defendant by an officer authorized by law to collect an exección issued out of said superoir court, answers the complaint,” etc. Held, that a motion to strike out this portion of the answer, or, in the alternative, to amend it by stating unequivocally whether or not it was intended as a defense, and, if so, to separately state and number it, should be granted; for, if not issuable matter, it ought to be stricken out, and if issuable and relied upon as a defense, it. should be pleaded as such, and stated and numbered separately.
    Appeal from special term.
    Action against a railroad company to recover the penalty prescribed by Laws of 1857, chap. 185, for charging excessive fare.
    Defendant answered that “The defendant above named, by Page & Taft, its attorneys, reserving the objection that this action cannot be maintained, by reason of the fact that the summons herein was not served upon the defendant by an officer authorized by law to collect on execution issued out of the said superior court of the city of Mew York, and without prejudice, by appearing to defend to its right to insist upon the objection, answers the complaint herein, etc.”
    Plaintiff moved for an order striking out as irrelevant the above portion of the answer, or for an order requiring the defendant to make its answer more definite and certain by stating unequivocally whether or not it intends the words recited above as a defense, and if so, that it be stated as a defense and numbered separately.
    The motion was granted by Freedman, J., in the following ' opinion:
    “ If the objection sought to be reserved by the answer, and which is therein set forth before the statement of the first defense, does not consist of issuable matter, it ought to be stricken out. If it is intended to be issuable matter, and relied upon as a defense, it should be pleaded as such, and stated and numbered separately, so that the plaintiff, if he shall see fit, may test its sufficiency by motion or demurrer. Upon due consideration" of the pleadings, I have come to the conclusion that the motion to strike out should be granted, with ten dollars costs, unless the defendant within twenty days amend the answer by specifically pleading the matter referred to as a defense, and by separately stating and numbering such defense, and pay the said costs.”

      Page & Taft, for app’lt; Henry Wehle, for resp’t
   Per Curiam.

—The order is affirmed, with ten dollars costs, upon the opinion delivered at special term.

Sedgwick, Ch. J., and McAdam, J., concur.


author: Freedman, J. Sedgwick, Ch. J.

text:
    George P. Delisser, App’lt, v. The New York, N. H. & H. R. R. Co., Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Service of summons in penalty action—Motion to set aside—Contents OF AFFIDAVIT.
    "Where, in an action to recover a penalty or forfeiture given by a statute, the summons was served on the defendant without a copy of the complaint, and no reference to the statute giving the penalty indorsed on the copy of the summons served, and a motion is made to set the service aside, Held, that the moving affidavit must state the source of the information and grounds of belief as to the object of the action.

      2. Sams—Must show what complaint was.
    The affidavit would have still been defective if it did give the source and did not show what the complaint was, or the nature of some proceeding which would legally determine the nature of the action.'
    Appeal from order made at special term ^setting aside the summons in this action and all proceedings therein.

      Henry Wehle, for app’lt; Page & Taft, for resp’t.
   Freedman, J.

—The summons having been served on the defendant and no copy of the complaint having been served with it, the defendant appeared for the sole purpose of moving, and did move, to set aside the service of the summons on the ground that this is an action to recover a penalty or forfeiture given by a statute, that a copy of the complaint was not delivered to the defendant with the copy of the summons served, and that there was not endorsed upon the said copy of the summons a reference to the statute giving said penalty as required by § 1897 of the Code.

The motion was founded on the copy of the summons served, andón an affidavit of one of. the attorneys of the defendant, to the effect that he is informed and believes that this action is to recover a penalty under the provisions of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.

The defendant pursued the proper practice, and if the affidavit had sufficiently stated the sources of the information of the attorney and the grounds of his belief, the defendant would have been entitled to have the service of the summons set aside as prayed for. But the sources of such information and the grounds of such belief were not disclosed.

The affidavit contained nothing beyond the bare statement that the affiant was so informed and so believed. It, therefore, contained no competent evidence upon which the process of the court, which was regular upon its face, could be set aside, and the plaintiff was not called upon to deny, under oath, something which had not been sufficiently shown.

Moreover, the order as made is too broad. It sets aside “ the summons in this action and all proceedings therein.” It is only the service of the summons that can be set aside upon the presentation of the proper proof.

The order appealed from should be reversed, with ten dollars costs and disbursementSj and the motion in the court below denied, with ten dollars costs, with leave to the defendant, upon payment of such costs, to renew the motion upon further proof.

Sedgwick, CL J., and Me Adam, J., concur.

Sedgwick, Ch. J.

—I concur with Judge Freedman in the principle upon which he has proceeded in his opinion but think there should be an absolute reversal. My ground for this view is, that the only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only evidence of what is the object of the action. Ro amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, or, if it be properly made, change it. The same remark is true in view of the provision that a judgment be taken by default when complaint is not served with the summons. The object of the action is then first ascertained by the-proceedings upon application to the court.

While it is true» that the affidavit was without efféct inasmuch as it averred the object of the action upon information and belief without giving the source of information, I think it would have been defective if it did give the source and did not show what the complaint was or the nature of some proceeding which would legally determine the nature of the action.

The authorities show that it is not too late for a defendant so-situated to move as soon as the proceedings of the action show the object of the suit.

The order appealed from should be reversed, with ten dollars: costs, and the motion below denied, with ten dollars costs.

" McAdam, J., concurs.


author: Freedman, J.

text:
    Alfred Blewitt, Appl’ts, v. William H. Boorum et al., Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Evidence—Pabol—Deliveby op instrument under seal.
    _ The rule prohibiting parol evidence as to a qualified or conditional delivery of a contract under seal is confined to instruments in which the delivery constitutes or involves the transfer of the possession of land.
    Appeal from a judgment, after a trial at special term, dismissing the plaintiff’s complaint, with costs.

      Isaac N. Miller, for app’lt; Putney, Bishop & Slade, (James L. Bishop, of counsel), for resp’ts.
   Freedman, J.

-There is no certificate or statement that the case contains all -the evidence. The facts, therefore, are not open for review and only questions of law can be considered.

The contract sued on was made by William A. Bussell and the plaintiff, as parties of the first part, and the defendants as parties of the second part. By it the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell and use a certain invention covered by a patent, issued to Bussell during the term of the patent'; and as consideration for such grant the parties of the second part (the defendants) agreed to manufacture the patented article and to pay to each of the parties of the first part the sum of two and one-half cents on each binder as royalty. The agreement was executed by all the parties under their respective hands and seals, and it was actually delivered to the plaintiff.

The answer admits the making of the contract sued on, and alleges as a defense that it was agreed between the parties at the time of the making of the contract that the same was to take effect as to the plaintiff only when he should have acquired a one-half interest in the patent by performance of a certain agreement, that he (the plaintiff) had made with Bussell, the other party of the first part to the contract in suit, whereby the plaintiff was to acquire from Bussell a one-half interest in the patent; that the plaintiff never carried out such agreement with Bussell, never acquired a half interest from Bussell, and subsequently abandoned all attempt to obtain an interest in such patent and relinquished and transferred to Bussell all his right, title and interest under the contract.

At the trial there was no controversy as to the actual delivery of the contract, or a copy of it, to the plaintiff, but the defendants offered to prove the oral agreement between the parties, as above stated, and that the plaintiff had failed to require from Bussell a one-half interest in the patent.

The plaintiff duly objected to such evidence as inadmissible, but the court overruled the objection and reviewed the evidence, to which ruling the plaintiff duly excepted. Upon the evidence thus received, the court found, as a fact, that at the time of the execution of the contract sued upon, it was expressly agreed between the parties thereto that the same was not to take effect as a contract until the plaintiff should have acquired a one-lialf interest in the patented improvement and letters patent, in pursuance of the agreement between plaintiff and Bussell, and that the plaintiff did not, at any time, acquire such half interest.

The court also found, as a fact, that the contract was never delivered to the plaintiff as a subsisting legal obligation. These findings are fatal to plaintiff’s case, if the evidence upon which they rest was admissible, and the only question presented, therefore, is whether or not it was error to receive such evidence.

It is settled in this state this if a deed is delivered to a party or his authorized agent, and not to a stranger, it is absolute, and parol evidence of conditions qualifying the delivery is inadmissible. Worrall v. Munn, 1 Seld., 229, and cases there cited.

It is also settled that parol evidence is admissible to show that a written paper, not under seal, which in form is a complete contract of which there had been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition resting in parol. Reynolds v. Robinson, 18 N. Y. State Rep., 235; Harnikell v. N. Y. Life Ins. Co., 111 N. Y., 390; 19 N. Y. State Rep., 98.

It remains to be seen what the rule is, as to an instrument under seal, which is not a deed, and does not relate to the transfer of the possession of land.

Upon this point great confusion exists in the books. Formerly the tendency undoubtedly was to distinguish generally between sealed and unsealed instruments. Of late the tendency has been to disregard the distinction between sealed and unsealed instruments whenever it can be done without a violation of some settled principle of law. The precise point now under consideration has never been put at rest. In Dietz v. Farish, 79 N. Y., 520, Church, Ch J., even says, with reference to a deed:

“ The court, in Kider v. Keith, 109 E. C. L. R., 34, announced the well established rule. It said: There is no doubt in point el law that where by express declaration, or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some oontemplated event should have happened, the deed is not a complete and perfect deed until that event has happened.”

A review of all the cases to which our attention has been called upon this point, would serve no useful purpose. Suffice it to say that a careful analysis of them with reference to the state of facts peculiar to each, shows that the confusion which does exist arises not so much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects parol evidence qualifying the delivery, has been almost exclusively in cases of instruments under seal in which the delivery of the" instrument constituted or involved a symbolic transfer of the possession of land. After due consideration of all that has been urged on both sides, I am of the opinion that the rule prohibiting parol evidence as to a qualified or conditional delivery should be confined to the class of instruments last referred to, and that it should not be extended generally to all executory contracts under seal. If this view is sound, the evidence in this case was properly admitted, and the exceptions taken by the plaintiff are untenable.

The judgment should be affirmed, with costs.

Truax and McAdam, JJ., concur.


text:
    Benjamin Fitch, App’lt, v. Paul J. Armour, Resp’t

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Trial—Issue—Admission—Question for jury.
    At the close of the evidence plaintiffs counsel said to the court that he thought the only question that could possibly go to the jury was whether a nuisance was maintained or allowed to exist by plaintiff. Held, that this was an admission that the case embraced such an issue, and, as there was proper evidence on the subject, the defendant was entitled to go to the jury upon it.

      2. Landlord and tenant—-Flats—Pipes used in common—Repairs.
    A landlord is bound to keep in condition whatever pipes are used in common between the occupants of the several flats of a tenement.
    3 Same—Provision as to default—Diligence in reletting,
    Where a lease provided that in case of any default in any of the covenants the landlord might resume possession of the premises and relet the same for the remainder of the term at the best rent he could obtain for the account of the tenant, who shall make good any deficiency, Held, that if the rent was not collected by any neglect of the landlord the tenant was to be credited with it.
    4. Same—Wrongful discrimination—Liability.
    In such case the landlord cannot discriminate against a person who offers to take a lease without sufficient reason, and should he do so, he will be obliged to credit the tenant with the rent which he might have obtained.
    Appeal by plaintiff from judgment entered on verdict ior defendant and from order denying plaintiff’s motion for new trial made upon the minutes.

      Abram Kling, for app’lt; C. Bainbridge Smith, for resp’t.
   Per Curiam.

—The action was by the plaintiff as landlord to recover from the defendant as tenant upon the covenants of a written lease. It is not expedient to state in detail the defense as it appeared by the answer. Certain objections are taken on the appeal to the sufficiency of the answer to uphold certain defenses on which the defendant in fact prevailed on the trial, and in its omission to set up affirmative matter of which on the trial the defendant had the benefit.

In the course of the testimony no objection was taken on the ground of the insufficiency of the answer and when the case went to.the jury there was no objection and no allusion was made to that subject.

The premises let were one floor in a house, the other floors of which were let to separate tenants. Where .the evidence was in the plaintiff’s counsel said to the court, that he thought that the only question that could possibly go to the jury is, as to whether the landlord maintained or allowed to exist on the premises and outside of the premises occupied by the defendant and over which the landlord has exclusive control, anything which would amount either to a nuisance or which would interfere with the beneficial enjoyment by the tenant of the premises. This was not an admission by plaintiff’s counsel that such question should be put to the jury, because it was made on a motion for a direction for a verdict in plaintiff’s favor. But it was an admission that the case embraced such an issue and as there was proper evidence on the subject the defendant was entitled to go to the jury, upon it.

The court made a proper charge on the subject, the plaintiff excepting only to a part of the charge, which was that the landlord was bound to keep in condition whatever pipes were used in common between the occupants of this flat and the occupants of the flats above; in other words such as were not solely within the control and in the sole use of the occupant of this flat, such pipes the landlord was in duty bound to keep-in repair. This charge it supported by Tallman v. Murphy, 120 N. Y., 352; 31 N. Y. State Rep., 483. .

As the jury found for the defendant, there would be no use of going farther if there had not been other issues left to them which may have been determined by them in favor of defendant, irrespective of the question of eviction. The lease provided that in case of any default in any of the covenants, the landlord might resume possession of the premises and relet the same for the remainder of the term at the best rent he could obtain for the account of the tenant, who shall make good any deficiency. After the defendant had left the premises, the plaintiff leased- a part of them to Lyman & Young for the sum of $300. They had not paid this rent, and the judge charged that if that rent was not collected by any neglect of the plaintiff, the defendant was to be credited with it The charge was correct, as under the cited provision the plaintiff was acting on account of the defendant and was bound to use due diligence in renting and collecting rents.

The court also charged that the defendant should be credited with the amount of rent that would have been payable under a letting which the plaintiff might have made to a lady who offered to take a lease for the remainder of the term. The only reason given by the plaintiff on the trial for not accepting her as tenant was that she was an actress; and although he himself had no , objection to her on that score, he believed that the occupancy might disturb other tenants in the building. He could not foresee in what way, but his impression was that her hours would be naturally late, and he feared, as his tenants were domestic! characters it, might disturb them.

This reason was without substance, for the plaintiff had no! cause to believe the hour would be later than those of other ladies in the ordinary evening pleasures of the city, and were they never; so late, the coming in would not be attended with noise or anything else that might disturb the other occupants upstairs. As! upon the plaintiff’s testimony, this was the only reason, she was to be deemed in all other respects a fit and responsible tenant, whose1 offer it was the duty of the plaintiff to the defendant to accept.

On this subject the plaintiff’s counsel asked the. court to charge; that the plaintiff had "the same right to discriminate as to the character of the tenant he would let into the premises in place of. the defendant, that he had if it were not on defendant’s account., The request was not correct, for if the plaintiff were acting for; himself, he could rightfully discriminate without sufficient reason.

If he acted on account of the defendant, he could rightfully discriminate only for sufficient reason.

The plaintiff also asked the court to charge that, if plaintiff was - of opinion that to rent these premises to an actress would lower n their character or standard, or would be objected to by the other1 tenants, he was justified in declining to rent

The first part of the request was inapplicable to the facts of'! the case, as the plaintiff had not refused on that ground. As to ^ the second part a mere opinion, not supported by a reason for the1 opinion, would not be sufficient ground for rejection, as be was acting for defendant as well as for himself. This is especially! true when no enquiry, which might be made easily of the tenants, was made of them.

The judgment and order should be affirmed, with costs. Sedgwick, CL J., Freedman and McAdam, JJ., concur. 1


author: McAdam, J. Sedgwick, Oh. J.

text:
    William B. Duncan, Jr., Resp’t, v. The China Mutual Insurance Company, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)
    Insubance—Mabine—Sale of vessel—Tbansfeb of policy—Pabties.
    In an action to recover upon a policy of insurance issued by defendant i upon the steamship Samana, it appeared that the defendant, hy its policy, agreed thg,t in case the steamship Samana was lost at sea, it would pay to the Samana Steamship Company, on account of whom it might concern, 1 the sum of $5,000, and that any change of interest in the vessel should not affect the validity of the policy. While the policy was in force, the ; vessel was sold to the Banana Steamship Company and lost at sea; that at the time of the sale, it was agreed that the Banana Company was to have , the benefit of the seller’s policies of insurance;'that it mortgaged the ship 1 to plaintiff to hold in trust, and transferred to him the policy as security for the Samana Company. The Samana Company made an assignment of | its rights to the plaintiff. Held, that by the terms of the policy, the vendee became a party concerned, and the action was properly conducted in the name of the plaintiff as assigneee of the Samana Company, for the benefit of the Banana Company, to the extent of its interest.
    The action is upon a policy of insurance issued by the defendant July 28, 1888, upon the steamship “ Samana,” which then belonged to the Steamship Samana Company. The plaintiff owned all the stock of this company, except a nominal amount of twenty-five dollars, which was held by five persons to satisfy some requirement of the English law. He was the managing owner, and, for practical purposes, the company. The vessel was valued in the policy at $45,000. The amount insured by the defendant was $5,000.
    In October, 1888, the company, through Mr. Duncan, made a contract with one Colville to sell the Samana for $41,000 to a company to be formed by Colville. Part of the price, $12,500, was paid in cash; the balance, $28,500, was secured by a mortgage.
    This contract further provided that the policies then existing upon the steamer should be held for a certain time for the benefit of the vendee, and that the vendee should pay the unearned premiums up to this time, and thereafter should itself take out policies.
    The agreement is annexed to the proofs of loss. The telegrams annexed thereto show that the vendee agreed to pay the unearned premiums on the policies on the Samana down to December 3, 1888. Mr. Duncan testified that the policy in suit was in his possession from its date until December 3, 1888, and that it was expressly agreed that he should continue to hold the policies as security for the mortgage.
    A company was formed by Colville, known as the Banana Steamship Co. The steamer was conveyed to this company, and it executed a mortgage to the plaintiff for the unpaid balance of the purchase money. Duncan testified that this was in fact the consideration for the mortgage, although in the printed form of the mortgage it is expressed to be given to secure a considerable sum of money due from the Banana Steamship Company to the plaintiff.
    The steamship “ Samana ” sailed from Hew York, Hovember 22, 1888, bound for Aux Cayes, in the West Indies. She has never since been heard from.
    The testimony of Captain Eraser and Captain Klinsel was taken on the trial in support of the proposition that the Samana was lost before December 3, 1888. The judge submitted to the jury the question whether the vessel was lost before the 3d of December, and they found that she was. At the time this proof was offered, the evidence of Eustace and Hughes had not been taken. Their testimony shows conclusively that the proposed agreement to cancel the policy in suit from and after December 3, 1888, at noon, was never made. The plaintiff declined to assent to the condition on which alone the defendant was willing to cancel the policy, and it never was cancelled. This proof rendered the evidence of the captain unnecessary. For it was conceded by the defendant that the vessel was lost at sea within the year covered by the policy.
    Upon the conclusion of the evidence, the defendant’s counsel requested the trial judge to charge the jury:
    I. The' plaintiff having sold the steamship insured, the extent of his insurable interest in the vessel was the amount of the unpaid purchase money, to wit: $28,500.
    II. That without consent of the underwriters, the policy issued to the Steamship Samana Co. could not he extended to .cover any interest of the Banana Steamship Co. in the vessel insured by any agreement between that company and the Steamship Samana Company.
    III. The Steamship Samana Co. having parted with a portion of its interest in the insured vessel, the loss which it has suffered is but a partial loss.
    IY. The amount recoverable under the defendant’s policy is to be ascertained by the following proportions: As $41,000 is to $28,000 (the unpaid purchase money represented by the mortgage), so is $5,000 (the amount insured by the policy), to the amount recoverable, namely, $3,475 50.
    The trial judge declined to charge either of the four propositions, and the defendant’s counsel excepted. Only one question was submitted to the jury, and that for a special verdict, to wit: “Was the steamship ‘Samana’ lost at sea by or in consequence of any of the perils insured against by the policy in suit before the 3d of December, 1888.” The jury found “that the vessel was lost prior to that date.” Upon the coming in of this special finding, the court directed the jury to find a general verdict in favor of the plaintiff for $5,644.92, the amount of the policy and interest, to which direction the defendant also excepted. The defendant then moved for a new trial, which was denied, and from the judgment and order denying the application for a new trial the appeal is taken.
    North, Ward & Wagstaff, (J. Langdon Ward, of counsel), for app’lt; Wheeler, Cortis and Godkin, (Everett P. Wheeler, of counsel), for resp’t.
   McAdam, J.

—The contract was one of indemnity, and the defendant, by its valued policy, agreed that in case the steamship “ Samana ” was lost at sea it would pay to the Samana Steamship Company, on account of whom it might concern, the sum of $5,000. The loss occurred within the lifetime of the policy, and under its provisions the obligation to pay became complete.

The meaning and intention of the parties is apparent. The policy insures “ W. B. Duncan, Jr., on account of whom it may concern, in case of loss, to be paid * * * to Steamship Samana Company, Limited.” At the end of the policy is the following clause:

“ It is agreed that any change of interest in the vessel hereby insured shall not affect the validity of this policy.”

This contemplated the possibility that happened. While the policy was in force, the Samana Steamship Co. sold the steamer to the Banana Steamship Co. for $41,000, in payment for which it received $12,500 in cash and a consideration money mortgage, in the name of the plaintiff, its managing agent, for the balance of the unpaid purchase money, which mortgage by virtue of the plaintiff’s relations to the Samana Steamship Co. was held by him in trust for it. Contemporaneously with the execution of these papers, another agreement was executed by which the Banana Company was to have the benefit of the seller’s policies of insurance. These instruments are to be construed together as if all were contained within one. Marsh v. Dodge, 66 N. Y., 537. Their operation and effect were to create the change of interest contemplated by the special provision of the policy, and to make the Banana Company, so far as it became interested in the property, one of those to whom the policy concerned, and its provisions extended. The loss was to be paid to the Samana Steamship Company, and the money when received by it was to be divided among those concerned, according to their respective interests.

The principles relating to marine policies differ essentially from those affecting fire insurance. A marine policy has a somewhat wider scope than that which is generally attributed to it, and extends beyond the person by whom it is effected, to all who derive from him subsequently, by a purchase which includes the insurance as well as the property. See cases collated in 2 Am. Loading Cases by Hare & Wallace, 5th ed., pp. 883, 884. It was said in Carroll v. The Marine Ins. Co., 8 Mass., 515, that the underwriter was entitled to notice of the transfer prior to the loss. But this doctrine is at variance with the authorities which establish that the right to transfer the benefit of a marine policy to a purchaser of tíre property may be exercised without the knowledge or concurrence of the insurers. 2 Am. Leading Cases, supra. The same rule was declared in Hitchcock v. North Western Ins. Co., 26 N. Y., 68, and see Henshaw v. Mutual S. I. Co., 2 Blatchf., 99; Hooper v. Robinson, 98 U. S., 528, and incidentally, Waring v. Indemnity F. I. Co., 45 N. Y., 606 ; Clinton v. Hope Ins. Co., id., 454; Cromwell v. Brooklyn F. I. Co., 44 id., 42; Savage v. Howard I. Co., 52 id., 502. The special provision in reference to change of interest- was inserted in view of the rule stated, and to dispense with any notice of the change, even if notice would have otherwise been necessary.

- The phrase “ whom it may concern ” is a technical one, and applies only to those who are in contemplation of the parties making the contract. Phillips on Ins., § 383; 1 Duer on Ins., 167, § 14; Hooper v. Robinson, 98 U. S., 528; Crosby v. N. Y. M. I. Co., 5 Bosw., 377. In case of a change of interest in the property and policy, the transferee becomes a party concerned within the meaning of the contract for the introduction of a new party by transfer of interest was authorized by terms of the policy, and was, therefore, within the contemplation of the parties as fully as if the transferee had been a party in interest at the time the policy was issued. In marine insurance, the character of the risk, the value of the property and amount insured are the main

considerations for the insurer; to whom the money is to go in case of loss, is of little consequence, so long as it is paid to a person authorized to receive it. The policy fixed the value of the vessel at $45,000, and being a total loss, the defendant is liable for its proportionate amount, $5,000, and there is nothing in the case which mitigates or reduces it. 1 Arnould on Ins., 321. The Samana Steamship Company made an oral assignment to the plaintiff of its rights in the premises, and "subsequently the company made a written transfer thereof to one Barnes, and he in turn made a similar transfer to the plaintiff. These writings were executed after suit brought, but were only in confirmation of what had been orally done before, so that like any other ratification it related back to the time when the act was done which it was intended to confirm. These facts clearly established the plaintiff’s right to the insurance money, for whom it might concern. The defendant did not plead the non-joinder of the Samana Steamship Company as a party plaintiff, and the transfer aforesaid concludes it as effectually as if it were before the court.

There was also a failure to plead the non-joinder of the Banana Company, but its presence as a party was unnecessary.

The action was properly conducted in the name of the plaintiff, as assignee of the Samana Steamship Company, for the benefit of the Banana Company to the extent of its interest. Powles v. Innes, 11 M. & W., 10; Wakefield v. Martin, 3 Mass., 558; Earl v. Shaw, 1 Johns. Cas., 313 ; Sparkes v. Marshall, 2 Bing. N. C., 761. The only effect of naming Duncan in the policy was to recognize him as the principal or agent to whom the insurer could look as the responsible creditor for the premium. 1 Arnould on Ins., 165. If he had any interest in the subject matter insured, he was sufficiently covered by the general phrase “ whom it may concern,” and did not require to be especially named. The case was carefully tried ; the exceptions to the admission of evidence, and to the refusals to charge the jury, are without merit. The evidence sustains the verdict, and the motion for a new trial was properly denied.

It follows that the judgment, as well as the order denying the motion for a new trial, must be affirmed, with costs.

Sedgwick, Oh. J.

—I agree with Judge McAdam, but would like to say that in my judgment the right of the Banana Company, as represented by the plaintiff, is not based upon its being intended as a party designated by "the phrase in the policy, “ on account of whom it may concern,” but rests upon the terms of the agreement for the sale by which the policy was to be held for their benefit, and as collateral security for the payment of the mortgage of the purchase. This, of course, assumes that an assignee by absolute transfer can recover according to his interest at time of loss.

Judgment affirmed, with costs.

Truax, J., concurs.


author: McAdam, J.

text:
    Mary E. Bradley, App’lt, v. Isaac Walker, Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Married women—Conveyance—Covenant—Acknowledgment
    A covenant was signed by defendant’s grantors and others, in 1846, whereby they agreed to reserve an open space in front of certain lots, and not build thereon. One of the grantors was a married woman, and the covenant was not acknowledged by her separate and apart from her husband, as was then required by 1 Rev. Stat., 758, § 10, for all conveyances by married women. Held, that the covenant was not a conveyance within the statutory meaning of the term, and that defendants could be enjoined from building upon the reserved space.
    Appeal from an order made at special term, February 9, 1891, vacating an ex parte injunction theretofore obtained forbidding the violation of a covenant, and denying an application to continue said injunction pendente lite.

    The covenant was signed by the defendant’s grantors and others, .and they thereby agreed to reserve an open space in front of certain lots and not build thereon.
    The court below conceded that the merits were with the appellant, but vacated the injunction on a question of law, viz. :■ That ■the covenant which was violated having been executed in 1846, br Mrs. Alvord, who was a married woman, although acknowledged by her, was not so acknowledged separate and apartfrom, her husband, and that, therefore, no estate passed and the defendant was not bound by the equity of the covenant.

      G. W. Cotterill, for app’lt; Henry Hoyt, for resp’t.
   McAdam, J.

—The covenant was not a conveyance within the statutory meaning of that term, respecting the acknowledgment ■of conveyances by married women. 1 B S., 758, § 10. It did not purport to grant or convey any estate and none passed or was intended to passed by it.

It is somewhat analogous to the right conferred in McLarney v. Pettigrew, 3 E. D. Smith, 111, in which it was held that an agreement that beams might be inserted in the wall of plaintiff’s house, for the permanent support of the adjoining house, did not •convey an interest in real estate and did not require a writing.

The same principle has been applied to party walls. Bos worth, J., in Maxwell v. East River Bank, 3 Bosw., at p. 146, said: “We regrrd it as settled law, that when the owners of adjoining lots agree, though verbally, that each will erect a building or store on his own lot, and that the dividing wall shall be a party wall, and .shall be used to support the beams and roof of each building, and they build according to such agreement, and with a view to execute it, neither can remove or do anything to impair the ability or sufficiency of such wall so long, at least, as the buildings continue in a condition to subserve in every substantial respect the uses for which they were erected.” The covenant executed by Mr. and Mrs. Alvold and their neighbors indicated no purpose to convey.

Its object is expressed in these words: “ The parties to these presents have agreed with each other to improve their said lots * * * by leaving eight feet * * * on the front thereof as an open space or court.” It was intended to insure uniformity of construction in the entire block, that one might build his house back eight feet, without having the light, air or vision cut off by projecting buildings on either side, and the execution of the plan in consummation of the understanding was all that was necessary to making it binding on those who agreed to it, or their successors in interest or estate.

Such an agreement is a wise and beneficent one, alike beneficial to all the adjoining owners. The agreement was made July 14, 1846, and though the title stood in the name of Mrs. - Alvord, the husband, under then existing laws, had, by virtue of his marital right, the/ms disponendi of the property until his marital relation ceased. He and his wife joined in the execution of the covenant. The record shows a proper acknowledgment by him, but the certificate as to her is not in conformity to the technical requirements of the then existing statute, in regard to the form of acknowlegment required by a married woman. The objection to the defective acknowledgment is personal to her, for she might, at any time, have corrected it, by a new acknowledgment- or deed of confirmation, which, by way of confirmation, would have related back to the time when the act needing ratification was performed. No intervening right or equity prevents this from being done now if it were necessary, but it is not. Mrs. Alvord is still living but has never repudiated the covenant, and does not seek to do so. The houses on the block have .been built over thirty years, and all in conformity to the covenant.

Alonzo A. Alvord, the husband, did not die until 1862, and the houses were therefore erected and the agreement consummated during the life of the husband, whose agreement even regarded as a conveyance, was valid, while he lived, by virtue of his exclusive right of control and of sale. Ewell’s Leading Cases, 478 ; 2 Kent’s Com., 132; Vartie v. Underwood, 18 Barb., 566.

When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge, which, like other charges recognized in equity, becomes effective when declared so by the courts. 2 Bishop on Married Women, § 212. A wife even under the then existing law might by her sole act charge her estate in equity under some circumstances in which she had not the pow;er of conveyance. Id., Story’s Eq. Jur., § 1399, and see cases collated in Voorhies Code of 1859, p. 173. She charged it in this instance. It needed no conveyance or writing to create the easement, even if the right conferred arises to the dignity of that title. The act or consent of those in interest was sufficient. This is established by the case of Tallmadge v. The East River Bank, 2 Duer, 614, aff’d 26 N. Y., 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and it was held binding upon a subsequent grantee with notice, although his legal title was absolute and unrestricted.

This case reviews many authorities and quotes Chancellor Cottenham as saying that where a covenant of this character has been entered into it would be most “ unjust and unconscientious ” not to enforce it.

The opinion also quotes the case of Brewer v. Marshall, 4 C. E. Green, N. J. Eq., 537, wherein the court agrees with Chancellor Cottenham in saying that “ it will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced, create easements or are oía nature to run with the latid.’’

Tallmadge v. East Riven Bank, supra, maintains this doctrine in its strongest aspect In that case Davis exhibited a plan of intended location of lots on St. Mark’s Place, showing that the houses were to be set back eight feet No mention oí this whatever was made in the conveyance. The court held that “ it is to be presumed that they would not have bought and paid their money except upon this assurance. It is to be presumed, that relying upon this assurance they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots under such circumstances and with such assurances, though verbal, bound Davis in equity and good conscience to use and dispose of all the remaining lots, so that the assurances upon which Maxwell and others bought their lots could be kept and fulfilled. This equity attached to the remaining lots so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the ,equity existing between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity.”

And the court further held, that the uniformity of the position of all the houses on St. Mark’s Place was probably sufficient alone to put the defendant on inquiry.” See, also, Maxwell v. East River Bank, 3 Bosw., 124; Perkins v. Coddington, 4 Robf., 647; Greene v. Creighton, 7 R. I., 1.

One of the leading cases on this subject is Whitney v. Union Railway Company, 11 Gray (Mass.), 364, where the same opinion is held in the following language :

“ In like manner, 7>y taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the mode of occupation and use of the estate granted, the purchaser is bound in equity to fulfill such agreements with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land."

The authorities, however, in this state, go so far as to hold that these covenants run with the land, and, without an .assignment of the covenants, are enforcible, and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brouwer v. Jones, 23 Barb., 153.

One of the ground upon which this right is put, is “ when it appears by a fair interpretation of the words of a grant, that it was the intent of the parties to create or reserve a right in the nature of a servitude or easement, in the property granted, for 'the benefit of other land owned by the grantor, such grant will be deemed appurtenant to the land of the grantor, and binding.’! Whitney v. Union R. R. Co., 11 Gray, 365; Hills v. Miller, 3 Paige,. 455.

“Cresswell, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement, than an operative ease- ’ ment in favor of tenement itself.” Washburn on Real Prop., 4th1 ed., 649.

On the general doctrine of the above cases, this court ordered a projection of the Burlington flats (in the same street) to be removed. DuBois v. Darling, 44 N. Y. Supr., 436.

And a defendant was enjoined from maintaining a tenement, house. Amerman v. Dean, 57 N. Y. Supr., 175; 26 N. Y. State Rep., 165.

This doctrine has been somewhat extensively referred to by usr not merely to illustrate the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity, ánd are enforced as a matter of strict justice.

Injunctions in this class of cases are granted almost as of course, upon proof of a breach of the covenant 3 Pom. Eq. Jurisp., p. 3722, § 134; Bispham Prin. of Eq., p. 514, § 461, and see Steward v. Winters, 4 Sandf., 587.

The Alvords compelled all the other property owners to build on the line, and held them to the agreement; and it is now claimed by their remote grantee that, although he had notice oí the covenant, and knew of the prior equity, he can disregard it and build out to the line of the street, and exclude the adjoining owners from light, air and vision on the technical ground that Mrs. Alvord was incompetent to contract, and that her husband’s power of control terminated with his death in 1862, and hence, whatever vitality the covenant ever had, ceased at that time.

In other words, that notwithstanding the facts (1) that the covenant may have been valid in 1846; (2) that Mr. and Mrs. Alvord sold the property in 1857 with reference to it, and without repudiation ; (3) that the covenant had been fully executed by the erection of buildings in conformity to its terms over' thirty years ago, yet in consequence of Mr. Alvord’s death in 1862, the covenant was spent and is now inoperative. No logical reasons have been advanced to support such an extraordinary claim, and our attention has not been called to any direct authority which sustains the proposition stated.

The defendant bought with knowledge of the covenant and took.subject to it 2 Pom. Eq. Juris., 14; Hodge v. Sloan, 107 N. Y., 245, 250; 11 N. Y. State Rep., 770; Trustees of Columbia College v. Lynch, 70 N. Y., 450. It was binding on the Alvords and is certainly valid as to him, a remote grantee charged with notice of the prior equity. Id. We are next called upon to consider the objection urged by the defendant, that ten feet of'

the front of the building is not affected by the covenant. This triangular piece was purchased by Susan .Alvord, Fovember 23, 1853, to straighten the line of her lot, and the whole parcel was sold together as one lot, April 1, 1857, and it was built upon during that year, in conformity to the requirements of the covenant, and thus the entire structure is brought within its provisions by the principles declared in Tallmadge v. The East River Bk., supra. The point, as to change of character of the neighborhood, is equally without merit. Where the use of land is restricted to private residences, and changes in the neighborhood unfit the property for that use, this circumstance may operate to defeat the covenant in that regard. Trustees of Columbia College v. Thacher, 87 N. Y., 311. The necessity presented for relaxing the rule in that case does not exist here. The covenant is of a different character, and falls within the principles decided in Lattimer v. Livermore, 6 Daly, 505; aff’d 72 N. Y., 174, in which it was held that a covenant for the enjoyment of light, air and vision, was not discharged by a mere change of neighborhood, as there was no reason why an adjoining property owner by that circumstance should have less of either than his covenant called for.

The plaintiff established her right to equitable relief by injunction, and it was error to vacate the temporary writ. The order appealed from must, therefore, be reversed, and the application to continue the injunction granted, with costs.

Sedgwick, Oh. J., and Freedman, J., concur


text:
    The Fifth Avenue National Bank, Resp’t, v. Samuel W. Parker, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Pbomissoby note—Discount—Bona fide pubchaseb.
    A bank discounted a note for the indorsers, parties not keeping an account in the bank, five days before its maturity, and having no notice of any infirmity in their claim against the maker; the note not being paid at maturity, the bank brought an action against the maker, omitting to sue the indorsers at their request. Held, that the bank was a bona fide purchaser of the note, and might recover against the maker.
    Appeal by defendant from judgment entered on verdict against Mm.

      T. M. Tyng, for app’lt; Charles Donohue, for resp’t
   Per Curiam.

—The action was against the defendant as maker of a promissory note. The payee, - after endorsing the note, had transferred it to the plaintiff. The only question upon the trial was and upon the appeal is, whether the plaintiff were incontrovertibly shown to have been a bona fide purchaser of the note.

The defendant’s counsel did not claim that the jury should pass upon the credibility of the witnesses who testified to the circumstances of the discounting of the note. These circumstances did not disclose any notice to the plaintiff of any infirmity in the claim of the endorsers against the defendant. The plaintiff gave the face value of the note, less interest to the day of maturity.

Some particular facts on which appellant relies will be noticed.

It is said that plaintiff did not pay money on the faith of the note. The facts are to the contrary. Although the plaintiff’s president was content to take the note, without examination of the defendant’s responsibility as maker, it was not an admissible inference, that he did not intend to rely and did not rely upon the defendant’s liability upon the note. " It was certain that there was no purpose of excluding anything that might be in any contingency security.

‘It is further argued that the note was not taken in the usual course of business. This argument is based in part upon the fact that the note was discounted five days before its maturity. This cannot be an unusual instance. For, when a note is to be discounted will depend upon the desire of the holder to obtain money for it. That desire may arise at the last part as well as at the first part of the running of the paper. The discounter would see nothing suspicious, in the fact that the holder had not wanted money, until the time he applied. But in accordance with the fact, it is said that it was not usual for the bank “ to discount a note five days before maturity, for a party that has not got any account in the bank.” There is no inference from this, that when a person not a depositor applied, for a discount it would be out of the course of business to discount, because such applications were not frequent.

After the discounting of the note, the plaintiff at the request of the endorsers, omitted to sue them but brought this suit against the maker. It is supposed that this would permit a jury to infer in some way, that the plaintiff had discounted the note with notice that the endorsers had no action upon it against the defendant. If, as it has already been said, the plaintiff obtained title, it would not have been of any benefit to the defendant, that he should have been sued jointly with the endorsers. The result in such an action would have been the same as the result in this action, namely, a judgment against the defendant. The fact that the endorsers were not sued indicated a friendly feeling to them. This may have existed at the time of the discount The indulgence of such a feeling would not prevent the plaintiff, gaining a good title free from defenses provided otherwise there was good faith and an absence of notice of defenses.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., and McAdam, J., concur.


text:
    Phebe Pearsall, App’lt, v. Jacob Hirsh et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Aoent—Real estate—Fiduciary relations.
    Plaintiff employed defendant H., by a contract under seal, as her agent, to effect a purchase of certain real estate belonging to defendant F. at a price not to exceed $51,000, and to take a contract of sale in his own name and assign it to her. Held, that I-I., having made all reasonable efforts to purchase the property at the given price and failed, could purchase the property for himself for $53,500, as he had fulfilled the obligation of the contract on his part.
    Appeal by plaintiff from an order sustaining demurrer to complaint, and from interlocutory judgment entered thereon.

      Henry L. Burnett and Edward B. Whitney, for app’lt; Max Stern (Elliot Minor, of counsel), for resp’ts.
   Per Curiam.

—The complaint averred that the defendant Ferguson was and is the owner of a certain described lot; that on, etc., by agreement in writing, bearing date on that day, plaintiff employed the defendant Hirsh as her agent for the purchase of said premises from the defendant Ferguson at a price not to exceed $51,000, and agreed to pay Hirsh for his services in securing a contract of sale from said Ferguson (the same to be taken in his own ñame, to be assigned by him to plaintiff) the sum of $500, etc., and by which said contract, said Hirsh agreed to make all reasonable efforts to purchase said lot of said Ferguson for plaintiff, as above stated.

That thereafter Ferguson entered into a contract under seal to sell the said lot to defendant Grutwillig for $52,500.

That defendant Ghitwillig is personally related to defendant Hirsh, and defendant Hirsh is the real party in interest.

The complaint, after proffering what was equitable on the part of plaintiff, demanded judgment that plaintiff is entitled to an assignment of the contract of sale; that such assignment be made and enjoining the defendants and each of them from conveying the contract or the property.

Possibly it might be enough to determine the demurrer that complaint did not state a cause to consider the conclusive legal effect of the contract of sale to defendant Grutwillig, under such decisions as that of Briggs v. Partridge, 64 N. Y., 357. By those decisions, as matter of law, the only parties having a legal interest in a sealed contract are those that sign it. But as the proposition was not discussed on the argument, it will not be made the ground of the decision here.

The defendant Hirsh having become the agent of the plaintiff, would, if there was no limitation by the rest of the contract, have been held to the performance of the obligations of an agent. And it will be assumed that while an agent he could not deal in respect of the property to his own advantage without becoming liable to his principal, the plaintiff. The maxim Legem, enim contractus dat. By the contract, and not because such would have been his duty as agent to purchase for plaintiff, he was to obtain a contract in his own name for the purchase price of $51,000, and assign it to the plaintiff, and to that end to make all reasonable efforts to purchase said lot

By the contract, if Hirsh was unable, by all reasonable efforts, to purchase, to procure a contract at a price of $51,000, he fulfilled the obligation of the contract on his part, and could not be compelled under the contract to assign an agreement for sale for .$>52,000, the terms being that plaintifE would become assignee of; it if it were for $51,000.

If, indeed, Hirsh, through Gutwillig, bought at $52,000, not having made all reasonable efforts to purchase at $51,000, that, 1 perhaps, might justify an action for damages from Hirsh’s breach of the contract. The complaint does not set forth such a cause ; of action.

The allegations of the complaint would not uphold the judgment that is demanded by it. ' 1

Judgment and order affirmed, with costs.

Sedgwick, Oh. J., Freedman and Mcádam. JJ., concur :


text:
    John Priessenger, Resp’t, v. Phebe E. Sharp, et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Vendor and vendee—Failure of title — Recovery of part’’ payment.
    In an action brought to recover back a payment made on the purchase price of real property, together with the expense incurred in examining the title, on the ground of the failure of defendants to give good title, it was shown that a prior owner under whom defendants claimed, had been one of two trustees to whom a mortgage oh the property was given; that it had been assigned by the trustees to him individually, and that he brought an action to foreclose it, and became the purchaser at the sale. Meld, that the title obtained in this way is presumptively voidable at the instance of the beneficiaries of the trust; and any person taking the title from him, takes it with notice of the fact that the mortgage was held by him in trust, and defendants failing to show that in fact this trust created no defect, the title was not marketable.
    '3. Trust—Testamentary—Sale by trustees.
    A will devising real estate in trust for the benefit of a person during his life time, and containing no power of sale, express or implied, which would enable the trustee to convey the title, creates a valid express trust, and any sale or conveyance of the property by the trustee is absolutely void, under chapter 357 of the Laws of 1886.

      3. Judgment—Joint liability—All dependants not served.
    Where the complaint alleged a joint liability on the part of the defendants, and the facts therein set forth not being denied by the answer, are found by the trial judge to be true, judgment may be had against all of the defendants under § 1993 of the Code of Civ., Pro, although only a part of them were served, as § 365 of the Code, prescribing the jurisdiction of the superior courts in proceedings against defendants jointly liable, some of whom reside without the jurisdiction, does not apply.
    Appeal from judgment entered upon the decision and by diTection of a judge at special term, a trial by jury having been waived.

      Thomas J. McKee, (Daniel G. Rollins, of counsel), for app’lts. ; Page & Taft, for resp’t.
   Freedman, J.

—The action was brougnt to recover ■ back so much of the purchase price of real property as was paid by the plaintiff as the purchaser at the time of the sale, together with the expenses incurred by him in examining title, etc., on the ground that the defendants were unable to give a good title to the premises according to their contract.

The plaintiff was entitled to a good marketable title within the rule laid down by the court of appeals in the Methodist Episcopal Church Home v. Thompson, 108 N. Y., 618; 13 N. Y. State Rep., 127 ; and Moore v. Williams, 115 N. Y., 586 ; 26 N. Y. State Rep., 259. He was not bound to show that the title tendered was absolutely bad.

The exceptions disclosed by the record present two questions, viz.:

1. Whether the findings of the trial judge, to the effect that the defendants did not offer to give, and could not give, a good marketable title, are supported by the evidence, in which case the conclusions of law based thereon must be sustained; and

2. Whether the plaintiff can have judgment notwithstanding the fact that the defendant Georgiana A. Rutherford did not appear in this action and was not served with a copy of the summons.

As to the first question:

The record contains no deed or deeds or other documentary evidence from which the actual state ©f the title eould be determined with precision. The question of title seems to have been litigated'principally upon the pleadings.

The sixth paragraph of the complaint is as follows, viz.:

YI. On August 1, 1881, one William Callahan and Ann Callahan, his wife, being then the owner in fee of the above described premises, executed and delivered a mortgage for $1,000 on a part of said premises to William R. Soper and Alfred Soper, as trustees. Said mortgage was recorded in the office of the register of the city and county of Hew York, in Liber 1586 of mortgages at p. 196, on the 2d day of August, 1881. Said mortgage was assigned by the said William R Soper and Alfred Soper as trustees, to the said Alfred Soper, individually. Said Alfred Soper commenced an action to foreclose said mortgage and another mortgage owned by him covering the rest of said premises, and said action was prosecuted to a judgment of foreclosure and sale, and the said Alfred Soper became the purchaser of said premises at said sale, and the referee appointed in said suit executed to him a deed thereof, purporting to convey the title thereto. Subsequently the said Alfred Soper having such title to the said premises as he acquired by the said deed from the said referee and no other title, died September 13-, 1885. He left a will which was duly admitted to probate on the 6th day of October, 1885, by the surrogate of the county of Hew York. Letters of administration with the will annexed, dated October 9, 1885, were duly issued upon the estate of the said Alfred Soper to the defendants Phebe E. Sharp and Ferdinand G. Soper, the sister and brother respectively of said testator, and they duly qualified as such administrators. By his said will the testator devised one-half of all his real estate to the defendant Phebe E. Sharp. The remaining one-half thereof he devised to the said Phebe E. Sharp to hold the same in trust for the benefit of his brother Ferdinand G. Soper during his lifetime and to pay him the interest accruing on the same, and at his decease the defendant Phebe E. .Sharp to use and to hold said real estate for herself or her heirs. The said will gave no power of sale to any executor or administrator or trustee appointed thereunder, nor to any person. That the defendant Georgiana A. Eutherford claims to be seized in fee of an undivided half part of a portion of said premises by virtue of a deed dated December 5, 1888, and recorded in the office of the register of the city and county of ¡New York, February 18, 1889, in Liber 2188 of Deeds at p. 470, which was made to her as grantee by Phebe E. Sharp and Ferdinand G. Soper, individually and as executors with the will annexed of Alfred Soper, deceased.

The answer of the defendants, Phebe E. Sharp and Ferdinand G. Soper, admits these allegations by not denying the saíne, and, in addition, contains the following express admissions, viz.:

II. Defendants admit that on the sale of the premises described in the said complaint, Alfred Soper became the purchaser of the same, and that he received a deed of said premises from the referee appointed to sell the same, conveying the title thereof to him, and that said Alfred Soper died on September 13, 1885, leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of ¡New York on the 6th day of October, 1885, and that letters of administration, with the will annexed, dated October 9, 1885, were duly issued to said defendants, and that they duly qualified.

IIL That said last will and testament of Alfred Soper, after disposing of certain pieces of personal property, devises his property as follows: “ I give unto my sister, Phebe E. Sharp, one-half of my property, both real and personal, for her use and benefit, I give unto my sister, Phebe E. Sharp, the remaining half of my property, she to hold the same in trust for the benefit of my brother, F. G. Soper, during his lifetime, and to pay him the interest accruing on same. At his decease, my sister, Mrs. P. E, Sharp, to use and hold the property for herself or her heirs.”

It, therefore, stands admitted beyond dispute that the mortgage made by Callahan to "William E, Soper and Alfred Soper, as trustees, was assigned by said trustees to one of their number individually, and that the latter foreclosed the mortgage and bought the property at foreclosure in his own name. The title obtained by him in this way is presumptively voidable at the instance of the beneficiaries of the trust under which the trustees held the mortgage, and any person taking the title from him takes it with notice of the fact that the mortgage was held in trust. It was competent, however, for the defendants to show that in fact this trust created no defect. But the burden was upon them to show it. They gave no evidence to that effect. Moreover, the plaintiff gave evidence that at the time fixed for the closing of the title the defendants’ attorney stated that somebody might be interested in that mortgage besides the trustees. Ender the decision of this court in Toole v. McKiernan, 48 N. Y. Supr. Ct. Rep., 163, the title was, therefore, not marketable.

It further appears that the will of Alfred Soper, by devising to the testator’s sister one-half of his real estate, to hold the same in trust for the benefit of Ferdinand G. Soper during his lifetime, and to pay him the interest accruing on same, created a valid express trust belonging to the third class mentioned in § 55 of article 2, title 2 chap. 1, of part II of the Revised Statutes, 1 R S., 728, § 55, and that the will contains no power of sale, either expressed or implied, which enables the trustee to convey title. In such a case the rule is that the trustee cannot destroy the trust by uniting with the beneficiary in a conveyance of the trust property. Chapter 257 of the Laws of 1886, amending § 65 of article 2, title'2, chap. 1, of part II of the Revised Statutes, expressly provides that where the trust is, or shall be, expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees,” in contravention of the trust, shall be absolutely void. The case at bar falls within the prohibition of this statute.

Upon the whole case the learned judge below was fully justified in finding that the defendants did not offer to give, and could not give, a good marketable title.

As to the second question it is sufficient to say that the first, second and third paragraphs of the complaint alleged a joint liability on the part of the defendants, and that the facts therein set forth, not having been denied by the answer, were found by the trial judge to be true. In such a case § 265 of the Code does not apply, but all of the defendants may be proceeded against, although only a part of them were served. Code, § 1932. All that is necessary is that in docketing the judgment the requirements of § 1936 of the Code, and that upon issuing execution the requirements of §§ 1934 and 1935, should be observed.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.