text:
    VICTOR JEROME HOYT and others, Respondents, v. ANSON B. HOYT and others, Appellants.

      Legacy — when charged on real estate —power of sale — what not an execution of.

    A testator by the first clause of his will directed the payment of all his just debts; by the second he gave §1,500 to each of certain legatees therein named; and by the third he gave and devised “ all the rest residue and remainder of my (his) real and personal estate to ” persons therein named.

      Held, that the legacies given by the second clause were charged upon the real estate.
    By a codicil Ms wife was authorized to sell and dispose of any or all of the real estate, subj ect to the approval of each and every of Ms heirs surviving at the time of the sale. The personal estate was not sufficient for the payment of the legacies. The plaintiffs, legatees and grandcMldren of the testator, joined with the widow and other heirs in a deed of conveyance of all the real estate to one of said heirs, and also executed another deed in which they approved and ratified' the conveyance. They were induced so to do by the representation, that it was necessary to execute the papers in order to obtain funds for the payment of the legacies. No consideration was given by the grantee, and at the time of its execution none was expressed in the instrument, though one was subsequently inserted.

      Held, that the conveyance was not a proper execution of the power of sale, and that plaintiffs might bring an action to have it set aside.
    Conveyances were subsequently made by the grantee, and mortgages given by her and her grantees. The attorney for the mortgagees knew the purpose for which the deeds were given, and that there had been no valid execution of the power of sale.

      Held, that the mortgagees were chargeable with notice of these facts, 'and that the mortgages were invalid in so far as plaintiffs’ rights were concerned.

      Held, further, that as at the time of the conveyance the plaintiffs had no estate in. the lands which could be conveyed by grant, and as the deeds, though containing words of release, .were'not intended to operate as a release, they were wholly inoperative to discharge the x>laintiffs’ lien.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    One Bolding Hoyt died leaving a will, which, provided, among other things, as follows :
    First. I order and direct that all my just debts be paid.
    Second. I give and devise to my grandchildren Jerome Hojd, Montraville Hoyt and Peter Van Schruyver Hoyt, children of my son William, the sum $1,500 each, to be paid to them upon arriving at the age of twenty-one years, respectively. * * *

      Third. I give and devise all the rest, residue and remainder of my real and personal estate to my beloved wife Bebecca, to be used and enjoyed by her during the term' óf her natural life, and from and immediately after her decease I give and devise the same as follows: * * *
    By a codicil thereto he directed “That my said wife, Bebecca, may at any time during her lifetime sell and dispose of any or all of my real estate, giving and granting unto my said wife full power and authority to execute and deliver to the purchaser or purchasers thereof the proper instruments in writing for the conveyance of the same in law, provided, nevertheless, and upon the express condition that such sale or sales shall be subject to the approval of each and every of the heirs of my said estate surviving at the time of such sale or sales as aforesaid.”
    This action was brought by the plaintiffs, legatees named in the second clause of the will, to have certain conveyances made by them set aside, and to have their legacies satisfied out of the real estate of the testator.
    The justice, before whom the action was tried, found among things that Hoyt died seized of real estate, in the city of Yonkers, particularly described in the complaint in this action. That his personal estate was entirely inadequate to pay his debts, and to pay the testamentary legacies to plaintiffs given in and by said will; that the plaintiffs are the legatees named in the said will; they are each of the age of twenty-one years and upwards; they are the grandchildren of the testator, and three of the persons described in the said will and codicil as heirs ; that in or about the month of January, in the year 1875, the plaintiffs were induced, by representations made to them by Noah B. Hoyt on behalf of the defendants Adelia Emiline Hoyt, Anson B. Hoyt, William G. Ackerman and said Noah B. Hoyt, to, and they did sign, execute and acknowledge a certain instrument in writing, bearing date the 9th day of January, 1875, recorded in the office of the register of the comity of Westchester on the 5th day of March, 1875, 'which said deed or conveyance purported to be made by Bebecca Hoyt of the first part, Adelia Emeline Hoyt of the second part, and Anson B. Hoyt, Noah B. Hoyt, George W. Hoyt, Adelia Emeline Hoyt, Jerome Hoyt, Montraville Hoyt and Peter V. Hoyt of the third part; the said Rebecca Hoyt being the -widow of said Belding Hoyt, and the other parties, with the exception of the plaintiffs, being children of the said Belding Hoyt, and which instrument in writing purported to convey to the said Adelia Emeline Hoyt of the second part all the real estate of which the said Belding Hoyt died seized in the county of Westchester ; and which deed contained a clause by which these plaintiffs ratified and approved, and in all respects confirmed the said conveyance and consented to the making thereof; and that simultaneously and induced by the same representations the said plaintiffs also executed a certain other instrument in writing, bearing date the 9th day of January, 1875, executed between the same parties as the instrument last-mentioned (and other persons, being the wives of some of the parties thereto), recorded in the office of the register aforesaid, on the 5th of March, 1875, by which the same premises were conveyed to the said Adelia Emeline Hoyt; that at the time of the signing, execution and delivery of the two instruments last aforesaid by the said plaintiffs, neither of said instruments expressed on its face any consideration whatever ; no pecuniary consideration was mentioned therein; but after such execution, and without the privity of the plaintiffs, or either of them, the sum of $75,000 was inserted in said instrument in writing, first herein mentioned as the consideration thereof; that the representations so made to the said plaintiffs to induce them to execute said instruments in writing were : That by signing and executing the same the said Anson B. Hoyt and William Q. Ackerman, executors as aforesaid, would be in a situation by which they could obtain funds for the payment of the legacies aforesaid, and that the said legacies could not be paid without these plaintiffs executing said papers ; that unless said representations had been made to the plaintiffs they would not have signed and executed said deeds, and that the said representations were made, to lead them to believe that by executing said papers they would receive the amount of their legacies ; that no sale of the premises aforesaid was ever made under the power of sale contained in the codicil aforesaid, and that no other conveyance was made of said premises, excepting the two instruments in writing before mentioned, by which the power of sale contained in said codicil was attempted to be exercised ; that immediately after the execution of the two instruments in writing herein set forth, the said Adelia Emeline Hoyt made and executed, under her hand and seal, four certain deeds or instruments in writing by which she conveyed portions of the said lands to certain of the parties to the joint conveyance and to one Ackerman ; that Ackerman held a mortgage given by one of the heirs-at-law upon his interest in the estate, and that certain other mortgages were given by the grantees of the said Adelia Emeline Hoyt; that the said mortgages were negotiated by, and the transactions in relation to the loans thereby seemed were all had and made with the attorney and counsel who drew and prepared all the instruments in writing by which the premises of said Belding Hoyt, or any portion thereof, were conveyed, or purported so to be, as hereinbefore mentioned, and the said party was the agent of the mortgagees, making the loans as •aforesaid, and had notice of all the conveyances aforesaid, and •of the contents of the will of the said Belding Hoyt.
    The justice found as conclusions of law, that by the will of the said Belding Hoyt he intended that the legacies given thereby to the plaintiffs should be a charge upon all his real estate ; and that by said will said legacies were charged upon said real estate; and that the power of sale, given in and by said codicil, was intended for the purpose of providing a fund out of which said legacies should be paid; that said power of sale has never been executed; that all the lands of the said Belding Hoyt, of which Belding Hoyt died seized remain charged with the payment of the amounts so due to the respective plaintiffs on the legacies so given to them, together with the interest thereon from a period of one year from the time of the granting of the letters testamentary upon said will; that all the conveyances and all the mortgages hereinbefore mentioned are subject to the prior lien or incumbrance of said legacies, and that such lien attaches upon all said lands, before and in preference to any of the conveyances or mortgages herein-before mentioned; that the whole of the premises of which said Belding Hoyt died seized should be sold together by, or under the direction of David Verplanck, who was thereby appointed a referee to make the sale, and out of the proceeds to satisfy the amount still unpaid for principal and interest on said legacies, and the costs and allowances of the plaintiffs in this action ; and also to pay out of the said proceeds the amount due to the defendants, Edward D. G. Prime and Harriette S. Davidson on the three several bonds and mortgages held by them respectively.

      O. Frost, R. W. Van Pelt and Platt. H. Filis, and Filis & Sweny, for the appellants.

      Davidson & Prime, W. L. Gowdry and John S. Fawrence, for the respondents.
   Gilbert, J.:

The questions which we have to decide are: First. "Whether the legacies were a charge upon the real estate devised; and, Second. Whether that real estate was discharged of the legacies by the conveyances dated January 9, 1875. The plaintiff’s are the-children of a deceased child of the testator. The gifts made by him are contained in the second and third clauses of his will. By the second, the testator gave and devised to each of the plaintiff’s a legacy of $1,500. By the third, he gave and devised “ all the rest, residue and remainder” of his real and personal estate to his wife for life, with remainders in specified shares to his. children.

If the first question was res integra, the argument made on behalf of the defendants might possibly prevail. But at this late day, I think that there ought not to be a serious question upon the subject in the mind of any person. The words, “rest, residue and. remainder ” in a devise of real and personal estate, have been for a long period interpreted to mean that which is left of both realty and personalty, after what has been given before has been deducted. There have been contrary decisions ; but the decided preponderance of authority is on the side of such construction. (Greville v. Browne, 7 H. of L. Ca., 689; Lupton v. Lupton, 2 Johns. Ch., 623; Shulters v. Johnson, 38 Barb., 80; Reynolds v. Reynolds, 16 N. Y., 257.) Here the real and personal estate are united together in one gift, and that gift is only of the rest, residue, and remainder” thereof — that is to say, after paying the legacies,, no matter how, the donee shall have the property discharged of the same. The general rule that the personal estate is the fund •out of which the legacies are to be paid does not govern the case. If they are so paid very well. If they are not paid they remain a charge upon the whole estate. As was said m Grenville v. Browne (supra), “it is considered that the whole is one moss — that part of that mass is represented by legacies, and that what is afterwards given is given minus what has been before given, and given, therefore, subject to the prior gift.” The direction to pay debts does not affect this question in any way. The only effect is to give priority to creditors over all legatees and devisees — creditors would have had such priority if no direction to pay debts liad been inserted in the will.

With respect to the second question, my answer must be in the negative. The first deed made on the 9th of January, 1875, purqiorts to have been made in execution of a naked power of sale, rmaccompanied by any trust or duty granted to the testator’s widow by the codicil to his will; but in fact there was no execution of the power, for the transaction had not even the semblance of a sale. It was a mere contrivance to vest the estate of the devisees in the> grantee for the more convenient management and disposition of it. The assent of the plaintiffs thereto was asked and obtained on the ground that it was necessary, because the power of sale was granted upon condition that the sale should be approved by each and every of the heirs of the testator. Such .was the fact. The deed referred to, conveyed the lands devised to Adelia E. 'Hoyt, one of the devisees, but it expressed no consideration. A second deed was executed bearing the same date and acknowledged on the same day, namely March 5, 1875, which conveyed the same lands to the same grantee. The grantors in the last deed are the widow and devisees of the testator, together with the wives of such of the men as were married, and the plaintiffs. This deed was made for the same purpose as the first. It was made without consideration and no consideration is expressed therein. The signatures of the plaintiffs to both deeds were obtained solely upon the representation that it was necessary that they should execute said deeds in order to obtain payment of their legacies, because the codicil required their, approval as well as 'that of the testator’s children, of any sale of the real estate devised. The evidence shows very clearly that a discharge of the lands from the legacies was not sought, and that that object was not in the contemplation of any of the parties to the deeds. They, no doubt, supposed that the legacies were not a charge upon the lands. The facts stated are sufficient to prevent the operation of the deeds or either of them as a discharge of the lands from the legacies, except as against bona fide purchasers. Adelia E. Hoyt, the grantee in both deeds, is not such a purchaser nor are her grantees, for they were all participants in both transactions.

I am also of opinion that the mortgagees before the court have acquired no rights superior to those of the plaintiffs, even assuming that such mortgagees are not affected with notice of the representations which induced the plaintiffs to unite in the deeds. For each of them is chargeable with notice that the deeds were made without consideration. Moreover the plaintiffs had no estate in the lands conveyed. The conveyances operated as grants, and passed no greater estate or interest than the plaintiffs possessed, and as they possessed no estate none passed from them. (1 R. S., 739, §§ 142,143.) The charge upon the lands in their favor was neither a jus in re nor a jus ad rem. It was a mere lien. That could. be discharged only by an instrument which operated as a release. Although the deeds contain words of release, yet they were inserted as words of conveyance for the purpose of passing the legal estate only. They were not intended to discharge an equitable lien, and they cannot therefore have that effect. (1 R. S., 748, § 2; Power v. Lester, 23 N. Y., 527; Gillig v. Maass, 28 id., 198, 210.) Tne transaction was wholly inappropriate for that purpose Ackerman, one of the mortgagees, was an actual participant in the transactions, and knew all about them. The attorney for the other mortgagees knew the purpose for which the deeds were made, and that there had been no valid execution of the power of sale contained in the' codicil, and that the deeds were made without consideration, and that the respective parties thereto did not intend that the charge in favor of the plaintiffs should be discharged. The mortgagees are chargeable with notice of all the facts which came to the knowledge of their attorney while acting in their behalf. The fact that he also acted for the mortgagors makes no difference. (Story Eq. Jur.; Redfield, §§ 397, 408 n.; Holland v. Hart, 40 L. J. Ch., 701; Ingalls v. Morgan, 6 Seld., 184; Gray v. Green, 12 Hun, 598.) The will itself afforded notice of the charge, and the facts of which their attorney had notice are sufficient to preclude all claim on their part that the deeds were intended to operate as a discharge. (Harris v. Fly, 7 Paige, 427.)

Nor are the plaintiffs estopped from setting up the charge. They had no intention of influencing the mortgagees or either of them, nor were the mortgagees in fact influenced by their signatures to the deeds, beyond the effect which it was intended such acts should have, namely, a formal approval of the sale to one of the devisees.

The judgment should be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS DRAPER, Appellant, v. ROBERT A. PINKERTON, Respondent.

      Warrant of rendition, of fugitive from, justice— the count cannot inquire into the truth of the facts recited in it— The governor cannot inquire as to the t/ruth of the charge.

    Where a warrant is issued by the governor for the rendition of a fugitive from justice, the court cannot go behind the warrant and inquire into the truth of the facts recited in it.
    The governor, in determining that the act of Congress has been complied with, has no jurisdiction to inquire into the truth of the charges made, or to look outside of the papers presented, to determine whether or not the person demanded is a fugitive from justice.
    The fact that the person has committed a crime in another State, and that he has been found in this State, establishes conclusively that he is a fugitive from justice.

      /Semble, that when the rendition warrant is accompanied by the papers on which it issued, tlie question as to tlie sufficiency of those papers, as a cornpliance with the act of Congress, is before the court.
    Certiorari to review an order made at Special Term, upon the return to a writ of habeas corpus, remanding the relator to the custody of the sheriff. The relator was arrested under the following warrant:
    State op New York, Executive Chamber, ) Lucius Robinson, Governor of the State of New York. )

      To the sheriff of the county of Neio York, and the sheriff's constables and other peace officers of the several counties in the said State.

    Whereas, It has been represented to me by the governor of the State of Massachusetts that John Leary, James Brady, James Draper and James Grier stand charged with the crime of breaking and entering the Northampton National Bank, and stealing the moneys thereof, committed in the county of Hampshire in said State, and that they have fled from justice in that State and have taken refuge in the State of Now York; and the said governor of Massachusetts having, in pursuance of the Constitution and laws of the United States, demanded of mo that I shall cause the said John Leary, James Brady, James Draper and James Grier to be arrested and delivered to Robert A. Pinkerton, who is duly authorized to receive them into his custody, and convey them back to the said State of Massachusetts ; and
    Whereas, The said representation and demand is accompanied by a copy of this indictment, whereby the said John Leary, James Brady, James Draper and James Grier are charged with the said crime, and with having fled from said State and taken réfuge in the State of New York, which is certified by the said governor of Massachusetts to be duly authenticated, you are therefore required to arrest and secure the said John Leary, James Brady, James Draper and James Grier wherever they may be found within the State, and to deliver them into the custody of the said Robert A. Pinkerton, to be taken back to said State from which they fled, pursuant to the said requisition.
    Given under my hand and the privy seal of the State, at the city of Albany, this twenty-eighth day of June, in the [l. s.] year of our Lord one thousand eight hundred and seventy-seven.
    By the governor,
    L. ROBINSON.
    Edward Migg-ael,

      Acting Private Secretary.

      Samuel D. Morris and Charles W. Broolee, for the relator, appellant.

      Winchester Britton, for the respondent.
   Gilbert, J.:

To justify the issuing of a warrant of rendition of a fugitive from justice, it must appear, First. That a demand of him as a fugitive from justice has been made by the executive authority of the State where the crime charged was committed. Second. Such demand must be accompanied by the copy of an indictment found, or an affidavit made before a magistrate of said State, charging the person so demanded with having committed treason, felony or other crime; and, Third. Such copy must be certified as authentic by such executive authority. (U. S. Const., art. 4, § 2; U. S. R. S., § 5278.) All this was done in the case before us, as appears from the recitals in the rendition warrant under which the relator was arrested. The court cannot go behind such warrant and inquire into the truth of the facts recited in it. When the rendition warrant is accompanied by the papers on which it issued, the sufficiency of those papers as a compliance with the act of Congress no doubt is before the court, and such papers may be examined for the purpose of determining that question. If the papers are insufficient the prisoner is entitled to be discharged, because the warrant has been issued in a case not authorized by law. But where the papers presented to the governor do not accompany the warrant, such a question cannot arise, for the court has not the means of compelling a production of the papers. The only matters to be determined in the latter case are the sufficiency and'regularity of the warrant, and those must be determined by what is stated in the warrant itself. The decisions of the courts of this State upon this subject appear to be quite uniform (In re Clark, 9 Wend., 212; Soloman’s Case, 1 Abb. [N. S.], 347; People ex rel. Connors v. Reilley, 11 Hun, 89; People ex rel. Lawrence v. Brady, 56 N. Y., 182), and they rest, as it seems to me, upon sound principle. The writ of habeas corpus cannot properly perform the functions of a certiorari or a writ of error.

The duty of the governor of this State to issue the rendition warrant was imperative. Having performed the quasi judicial function of determining that the act of Congress had been complied with by the governor of Massachusetts, the remaining part of his duty was ministerial only. Nor did the performance of such duty depend upon the truth of the charge, in other words upon the guilt or innocence of the person demanded. An inquiry upon that subject would have been wholly irrelevant. The governor is vested with no jurisdiction to determine the questions that would arise upon such an inquiry. (56 N. Y., supra.) Nor can he inquire, aliunde the papers presented to him, whether the person demanded is a fugitive from justice. The gist of the proceeding is the apprehension of a person in this State, for a crime which he is charged with having committed in Massachusetts. The charge that he committed a crime in that State, coupled with the fact that he is found in this State, is conclusive upon the question whether he is a fugitive from justice. For when a crime is committed in Massachusetts, and the person accused of that crime is not in that State, but is elsewhere, he is of necessity a fugitive from justice. He may have left his home in New York, committed a crime in Massachusetts, and then immediately returned to his home. Nevertheless in such a case, if he is not a fugitive from the territory of Massachusetts, he is one from its justice, and I think that the fact that he is found in another State is sufficient evidence that he has fled from the State where he committed the-crime. No exception to the sufficiency of such proof in this case exists, for the fugitive (assuming that he is the person named in the warrant) is the relator now before the court. In Adams' Case (7 Law Reporter, 386) a citizen of Ohio committed a crime in New York and returned home. He was subsequently surrendered, from Ohio on the demand of the governor of this State as a fugitive from justice. Having been brought up before Vanderpoel, J., of the Superior Court, in the city of New York on habeas corpus, it was claimed that he had not fled from this State, but the justice (the full court sitting with him) held otherwise. A similar decision was made by the Supreme Court of Massachusetts in Kingsbury's Case (106 Mass., 227). Such, it seems to me, is a correct exposition of the law, for if the rule were otherwise the. purpose of the constitutional provision on this subject would be frustrated to a great degree, and the several States would be mere-sanctuaries for the protection of criminals who had committed, crimes in another State.

The only remaining question relates to the identity of the-prisoner. He is called in the rendition warrant James Draper.. That is the name by which he is indicted. There is evidence that, his real Christian name is Thomas, but taking the whole evidence,, we think it was correctly determined that he is the person intended,, whatever his real Christian name may be.

The order must be affirmed, with costs and disbursements.

Barnard, P. J.. and Dykman, J., concurred.

Order affirmed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE BAY STATE SHOE AND LEATHER COMPANY, Respondent, v. THOMAS McLEAN and others, Assessors, and JOHN HOAG, Supervisor of the Town of Ossining, in the County of Westchester, Appellants.

      Foreign corporations — assessments against — chapter 37 of 1S55.
    Since the passage of chapter 37 of the Laws of 1855, the property of a foreign, corporation, doing business within this State, can no longer be assessed to the agent or trustee in whose possession it may be found, but must be assessed to the corporation itself, in the town or ward where the principal office or place for transacting its financial concerns is situated.
    Certiorari to review an assessment, made upon the property ■of the relator.
    The relator is a foreign corporation, created under and by virtue of the laws of Massachusetts, and having its principal 11 office for transacting the financial concerns of the company ” at 93 Chambers street and 73 Reade street, in the city of New York'. It owns ■certain materials and machinery situated within the precincts of the State prison at Sing Sing, in the town of Ossining, county of Westchester, used for the manufacture of boots and shoes by the labor of convicts in said prison, and such materials and machinery are there temporarily for that purpose. The boots and shoes so manufactured are the property of the relator, which has no other personal property in said town. The assessors of the town of Ossining assessed this property as against one Thomas Hapgood, ■claiming that said Hapgood was the agent of said corporation, the relator. The form of said assessment is as follows :
    “ Hapgood, Thos., for property in his possession as agent for the Bay State Shoe and Leather Company, stock and machinery, .$16,000."
    After completing the assessment-roll, notice was duly given of the time and place for the review of said assessments. At the proper time and place, the relator appeared by attorney, and asked that the assessment against its property be stricken from the roil, -on the ground that it was improperly made, and was illegal and void. This application was denied. The relator then procured a writ of certiorari to review the action of the assessors. To this, writ return was made that the roll had been duly certified and delivered by the assessors to the supervisor. A supplemental writ was then obtained, directed to the supervisor, directing him to produce the record and assessment-roll before the court. It was claimed upon the argument that the relator, being a foreign corporation, its property could only be assessed in accordance with section 6 of the article of the Revised Statutes, relating to “the place in which property is to be assessed ” (R. S. [6th ed.J, vol. 1„ p. 935); whereas the assessment had been made in the manner-prescribed by section 5 of that article. This view was sustained by the court below, and judgment was rendered declaring the assessment to be illegal, and ordering it to be stricken from the roll. From that judgment this appeal is taken.

      M. L. Cobb, for the appellants.
    Winfield, Leeds <& Morse, for the respondents.
   Gilbert, J.:

Prior to the year 1855, the only way of subjecting the property of foreign corporations to taxation, was to assess it in the name of' the agent or trustee in whose possession it might be found, and in. the town or -ward where he resided. (1 R. S., 389, § 5 as amended, by chapter 176 of the Laws of 1851.) The statute (1R-S., 387, § 1)> rendered all real and personal property within the State liable to> taxation, unless specially exempted by law. But under the system of assessment established, much personal property of non-residents, escaped taxation. For example, the personal property of a nonresident owner in his own possession could not be taxed, and a. single assessment of the personal property of a non-resident corporation within the State could not be made against the corporation by name as in the case of a domestic corporation, but it was necessary to seek such property in the hands of the agents of the?, corporation throughout the State, and assess each parcel in the name of the agent in the town or ward where he resided. To? remedy these evils among others, the Legislature passed chapter 37 of the Laws of 1855, and thereby provided that “ all persons .and associations doing business in the State of New York * * * .shall be assessed and taxed,” not on the tangible property in possession of agents or trustees, but “ on all sums invested in any manner in said business the same as if they were residents of this State,” and they further provided that the tax should be collected from the property belonging to the persons or associations assessed. The changes in the law wrought by this statute are quite apparent. (1.) The subject of taxation is the capital invested in business and not the property in the hands of agents. The latter is by necessary implication excluded from liability to taxation, for if it were not the unjust burden of double taxation would be imposed. (2.) The mode of levying the tax is assimulated to that in respect to resident •taxpayers — that is to say if a non-resident individual is to be •taxed it must be done, not in the town or ward where the personal property happens to be, but in the town or ward where he-is at the time doing business, and if a foreign corporation in the town or ward where the principal office or place for transacting its financial •concerns shall be. (1 E. S., 389, §§ 5-6.) Such is the plain import of the statute, for the only way of taxing the property of .a non-resident mdividual, in the same manner as if he were a resi•dent, is to treat his place of business as his residence pro hac vice, .and the only way of executing the statute of 1855, in respect to ■foreign corporations, is to apply the rule which is prescribed by "the other statute relative to domestic corporations above cited.

I am of opinion, therefore, that the decision at Special Term is •correct. (Hoyt v. The Com’s of Taxes, 23 N. Y., 232; The Parker Mills v. The Same, id., 242; British Com. Life Ins. Co. v. Com’s, 31 id., 32; S. C, 1 Keyes, 303.) We think the remedy adopted to correct the error of the assessors was the proper one.

The order must be affirmed.

Present — Barnard, P. J. and Gilbert, J.; Dykman, J. not Bitting.

Order affirmed, with costs and disbursements.


text:
    DELOS D. PIER, Appellant v. GEORGE GEORGE, Respondent.

      Chapter 333 of 1853, not repealed by chapter 510 of 1875.
    Chapter 510 of 1875, amending and re-enacting section 12 of chapter 40 of 1848, did not repeal or in any way affect chapter 333’ of 1853, and the amount of cash paid in, and the amount of stock issued for personal property transferred to a corporation created under the act of 1848, must still be separately specified in the annual report made and filed by the trustees thereof.
    Motion for reargument. The action was brought to enforce a personal liability against the defendant as trustee of a manufacturing corporation, for a failure to file a proper report as required by chapter 40 of 1848, and chapter 333 of 1853.
    The plaintiff appealed from a judgment dismissing his complaint and a new trial was granted, the case being reported in 14 Hun at page 568.
    The motion was made upon the ground “ that the court in the decision heretofore rendered overlooked the rule or principle of law that, after the repeal of a penal statute, no action can be maintained for penalties incurred under it, while it was in force, where no action had been commenced to recover such penalty before the repeal of the act, it being conceded in said opinion, as was claimed, that the twelfth section of the general manufacturing law of 1848, giving a right' of action against trustees for failure to make and file the annual report thereby required, is a penal statute, and that chapter 510 of the Laws of 1875 repealed that ]3ortion of said section which was inserted therein by chapter 333 of the Laws of 1853, and for an infringement of or non-compliance with which this action was brought, the action having been commenced after the passage of the act of 1875.”

      Ojiarles J3. JSearle, for the appellant.

      B. A. Brewster, for the respondent.
   Gilbert, J.:

The amendment of section 12 of the act of 1848 made by the act of 1875, chapter 510, did not repeal or in any manner affect the provisions of the act of 1853, chapter 333. The latter act never formed a part of said section twelve, but is an independent enactment. Consequently the omission to re-enact the provisions contained in the aqt of 1§53, relating to reports of stock issued in payment for property purchased, did not abrogate or repeal the same. The case of Moore v. Munsert (49 N. Y., 332) does not countenance such a doctrine as that. By the act of 1875 the provisions of said section 12 in respect to the contents of the annual report were re-enacted without the change of a word. Such provisions continued in force, not from the time of the re-enactment of them, but from the passage of the original act of which they formed a part. (Ely v. Holton, 15 N. Y., 595.) The act of 1853 is an additional enactment. An amendment of one will not affect the other, unless it introduces provisions which conflict with the latter. That is not the case here. The law on this subject has not been changed in the least. The judgment was properly reversed (Whitney Arms Co. v. Barlow, 63 N. Y., 66), and the motion for a re-argument must be denied, with ten dollars costs and disbursements.

Dykman, J., concurred; Barnard, P. J., not sitting.

Motion for reargument denied.


text:
    MILO M. BELDING and others, Respondents, v. JOSEPH M. FLOYD, Appellant, Impleaded with FREDERIC S. RICE and THEODORE T. JOHNSON.

      Insurance — liability of the president of a company for false representation made by its agents.

    "Where the president of an insurance company, knowing that the statutory prerequisites to its organization have not heen complied with, issues and signs policies and places them in the hands of agents, who, to his knowledge, induce people to take them by representing that the laws authorizing the company to transact business have been complied with, he is guilty of a fraud, and an action lies against him to recover back the money so paid.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court, without a jury.

      W. B. Putney, for the respondents.

      Thomas Darlington, for the appellants.
   Gilbert, J.:

This is an action to recover back money fraudulently obtained under the following circumstances: An insurance company was organized in 1868. It was prohibited by law from commencing business until $50,000 of its capital stock had’ been subscribed and paid in, and until it had deposited $100,000, invested in certain securities prescribed, with the superintendent .of the insurance department of this State. The defendant became president of said company, and in 1875 issued policies of insurance in the name' of said company and subscribed theOsame as president. These policies were placed in the hands of an agent, who induced the plaintiff, by representing that the laws authorizing the company to commence business had been complied with, to take four of said policies and pay the premiums thereon. The representation was false, and the defendant knew, when he issued the policies, that agents of the company were engaged in soliciting risks for the company, and that the conditions aforesaid had not been performed. The plaintiff had judgment, and the defendant has appealed therefrom.

I am quite sure that the judgment should be affirmed. The money of the plaintiff was obtained by a gross fraud. • The defendant, by issuing the policies and placing them in the hands of an agent who was. engaged in soliciting risks, showed a direct participation in the fraud. It would be a reproach to the law to exempt him from liability, because he did not personally receive the money obtained. Such a rule would exhonerate confederates of persons who pass counterfeit money, and indeed accomplices of every sort. The rule of law is otherwise. When money has been fraudulently obtained the law implies a promise to repay it on the part of every person implicated in the fraud. The person defrauded may waive the tort and sue for money had and received. It cannot be necessary to cite authorities to sustain these propositions. (But see 4 Wait’s Actions and Defences, 474.)

The judgment must be affirmed, with costs. 0

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    JOHN HENRY, Respondent, v. DANIEL M. DALEY, Appellant.

      Swety — cannot set up defences personal to his principal.

    In an action to recover the amount provided to be paid by a contract of sale, brought by the vendor against the surety for the vendee, the surety cannot counter-claim damages for a breach of warranty by the vendor, or set up that the contract was procured through fraud; such defences are personal to the vendee.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover the amount agreed to be paid for the transfer by the plaintiff’s assignor to one Bloomer (for whom the defendant was surety,) of a certain milk business in the city of Poughkeepsie. Among other defences the defendant set up that the plaintiff’s assignor induced said Bloomer to enter into the contract by making certain false representations as to the extent of the business, and also alleged that the plaintiff’s assignor had made a certain warranty as to the extent of such business, which was false.

      J. 8. Van Cleef, for the appellant.

      Wm. R. Woodin, for the respondent.
   Gilbert, J.:

On the 4th of April, 1878, one Bloomer and the assignor of the plaintiff entered into a mutual contract under seal, whereby the former sold to the latter “a milk route” in Poughkeepsie, with the good will thereof, and certain chattels connected therewith, and guaranteed that on said milk route he had been and was selling 150 quarts of milk per day, and he agreed not to sell or be interested in selling sweet milk in Poughkeepsie while Bloomer remained in business. In consideration thereof Bloomer agreed to purchase said property, aiid to pay $100 in cash on the 25th of said April, and $100 by a good endorsed note, payable in three months. The defendant on said 4th of April became surety for the faithful performance of Bloomer’s covenant. Thereupon the contract was executed by the plaintiff’s assignor by-turning over to Bloomer the milk route and chattels sold, so far as appears, and he has remained in the enjoyment thereof ever since.

The defendant sets up as a defence certain items which might constitute a set-off in favor of Bloomer, and also that Bloomer was induced to enter into the contract by the fraudulent representation of the plaintiff’s assignor that 150 quarts of milk per day were sold on said milk route, and by deceit practiced by said assignor to make him believe that said representation was true. The question is whether the defence is available to the defendant. I always supposed, and I am still of opinion, that such a defence is personal to the principal, and that it is not available in behalf of the surety. (Comstock v. Ames, 3 Keyes, 357.) Fraud-does not render the contract void, but it is voidable only at the election of the party defrauded. If he elects to avoid the contract he can do so only on the condition of returning whatever he has received under it. If he elects not to avoid it he may sue for bis damages occasioned by the fraud. (Lindsley v. Ferguson, 49 N. Y., 623.) In this case it is not averred that either Bloomer or the defendant has returned or offered to return anything which the former received under the contract, or that Bloomer has made any claim for damages on account of the fraud. The defendant cannot do either. The property received by Bloomer belongs to him and not to the defendant, nor could the latter maintain an action for the damages occasioned by the fraud, for the reason that he is not the party defrauded. (3 Keyes, supra.) The damages are not due to him. Bloomer’s damages may be greatly in excess-of the defendant’s liability. The defendant could be allowed them as a defence or a counter-claim, only upon some principle that would make the recovery of them by him a bar to any future-action or counter-claim by Bloomer for such -damages. The defendant might thus bar a large claim in favor of Bloomer by canceling a small one" against himself. These considerations, I think, show that this defence was properly excluded, and that the presence of Bloomer, as a party, would be necessary in any action to make it available to the defendant. The same principle would, be applicable if the defence should be regarded as a counter-claim, for damages, occasioned by the breach of the vendor’s warranty. Indeed, no counter-claim exists, except it be for damages-due to-the defendant. (Code of Civ. Proc., § 501, et seq.) The cases, when the surety has been permitted to set up as a defence matters, personal to his principals are- such as show that the contract never-had a valid existence, or that the liability created by it has been, extinguished in whole or in part. (Gillespie v. Torrance, 25 N. Y., 306; Lasher v. Williamson, 55 id., 619; Putnam v. Schuyler, 4 Hun, 166.)

The defences not based on fraud were, I think, causes of action in favor of the plaintiff, which arose independently of the contract. If so, they are not a legal defence in favor of the defendant.

The judgment must be affirmed, with costs.

Dxkman; J., concurred; - Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    MARTIN H. CADY, Appellant, v. GEORGE H. JENNINGS and SARAH M. JENNINGS, Respondents.

      Bond and mortgage — when void for want of consideration.

    A bond, and mortgage executed, with the name of the mortgagee in blank, was . delivered to Bancroft, to raise money for a company with which the mortgagor was connected. Bancroft, having theretofore received money belonging to plaintiff, sent to him a worthless check of the conrpany for the amount, and then, having told him that the check would not be paid, induced him to take the bond and mortgage therefor.
    In an action to foreclose the mortgage, held, that the mortgage was wholly without consideration as to the mortgagor, and that he was entitled to avail himself of that defence.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee. The action was brought to foreclose a mortgage. ■

      William JR. Lynch and John A. Taylor, for the appellant.
    Bancroft, being in possession of the instrument by authority of ■the mortgagor, for the express purpose of getting in his hands the .amount expressed on its face, $7,000 — authority to fill in the blanks, or to do any other act requisite to give validity to the instrument, in furtherance of this general purpose, will be implied. (Van Fita v. Fvenson, 28 Wis., 33; 9 Am., 486; Field v. Stagg, ■52 Mo., 534; 14 Am., 435; Hatch v. Taylor, 10 N. H., 538; Inhabitants of South Berwick v. Huntress, 53 Me., 39;- Gibbs v. Frost, 4 Ala. [N. S.], 720; Bank v. Hammond, 7 Rich., 287; Goundin v. Commander, 6 id., 497; JDuncom v. Hodges, 4 McC., 239.) But, whether the instruments are valid or not, Jennings is estopped from setting up their invalidity against a bona fide holder. (TexiraY. Evans, 1 Anstruther’s Repts., 228; approved in Woolley v. Constant, 4 Johns., 54; Chcmncey v. Arnold, 24 N. Y., 338»; Bank of Buffalo v. Oartm'ight, 22 Wend., 365; Knapp v. Waltby, 13 Wend., 587; McNeill v,' Tenth Nat. Bank Brooklyn, 46 N. Y., 325; Moore v. Metropolitan Bank, 55 id., 41; Drury v. Foster, 2 Wall., 33; Hemmenway v. Muloch Daily Register, Sept. 23, 1878; Judge Lawrence's opinion.) Defendants having placed in the power of their agent an instrument so far executed as to become dangerous as indicia of authority in his hands, to obtain the surrender of the Biddle check for $7,000, the case involves that elementary principle of equity that, when one of two innocent persons must suffer, he should suffer who has contributed to the injury. ( While v. Vermont and Mass. It. JR. Go., 21 How., 578; Garrard v. Haddon, 67 Penn., 82; Ash v. Putnam, 1 Hill, 307.) By his negligent execution of this mortgage, he has enabled Bancroft to mislead plaintiff, and he, and not plaintiff, must bear the loss. (Chitty on Bills, 262-425; Byles on Bills, 323; Montague v. Perkins, 22 Eng. L, & Eq., 516; Griggs v. Hove, 31 Barb., 100.)

      Rufus B. Govoing, for the respondents.
   Gilbert, J.:

The bond and mortgage were made and delivered in blank to one Bancroft, for the purpose of raising money for the use of a manufacturing company with which the mortgagor was connected. That purpose was not accomplished. Neither the mortgagor nor the company received any sum on account of the mortgage. But. Bancroft, having received $7,000 belonging to the plaintiff, which it was his duty to remit immediately, sent him a worthless check of said company, ostensibly for the purpose of making such remittance ; and, on the same day the check was received, Bancroft informed the plaintiff that the check would not be paid, and induced him to take said bond and mortgage in lieu thereof. The name of the plaintiff was inserted therein as obligee and mortgagee, and the instruments were then delivered by Bancroft to the plaintiff.

Assuming that Bancroft had authority to fill up the blanks in the instruments, they were utterly without consideration. The mortgagor received nothing for them from Bancroft, nor from the plaintiff. The plaintiff had no right to assume that Bancroft was authorized to deliver them to him in behalf of the mortgagor under any circumstances, and especially without obtaining the amount thereof in cash, but was bound to inquire of the mortgagor respecting Bancroft’s authority, and the means whereby he acquired possession of the instruments. A payment of the full amount thereof to Bancroft, without the sanction of the mortgagor, would not create a valid consideration for them. A fortiori the delivery of a worthless check to Bancroft did not have that effect.

The bond and mortgage being without consideration, and never having had a legal inception, and the mortgagor having done nothing to disable him from setting up that defence, the judgment should be affirmed, with costs. (Schafer v. Reilley, 50 N. Y., 61.)

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    EDMUND McLOUGHLIN, Plaintiff, v. FRANCIS D. MAHER, Defendant.

      Devise — estate of devisees — when a good title can be conveyed by.

    A testator by his will devised the residue of his estate to his.children, and then provided as to the share devised to one daughter, “that in case of her death without issue, that then and in that case such share shall go to my surviving ( children.” The daughter survived the testator, and had children born before his death. The daughter and the other children of the testator joined in a conveyance of a portion of the residuary estate.

      Be Id, that the children of the daughter took no estate in the lands.
    That the daughter took an estate in fee with a contingent limitation over.
    That even if she took a life estate only, the remainder or future expectant estate was not in her children, but in the surviving children of the testator and was alienable by them.
    That a conveyance by the daughter and the other children of the testator passed a good title.
    . Semble, that the words “in case of her death without issue” referred to the death of the daughter in the life time of the testator.
    Controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure.

      The plaintiff, as vendor, seeks to compel the specific performance by the defendant, as vendee, of a contract for the sale of real estate. The defendant claims that the title of the plaintiff is not perfect, and refuses to accept the same.
    John Douglass died seized of the premises in question, leaving a ■will. He left a widow and eight children, one.daughter and seven sons, his only heirs-at-law. By the will, after sundry specific devises and bequests in favor of his widow, he provided as follows :
    “ Sixth. I give, devise and bequeath all the rest and residue of my estate, both real and personal, to my children, share and share alike. In case any one of my children shall die in my life-time, leaving issue or descendants, I direct that his or her share shall not lapse, but shall pass to such issue or descendants.
    “ Eighth. It is my desire and I hereby direct that the share of my estate hereby devised and bequeathed to my daughter Jane Amelia, wife of Henry De Forest, of the city of New York, be taken and held by her free from any control of her husband, and that in case of her death without issue that then and in that case such share shall go to my surviving children.”
    The said Jane A. De Forest is still living, and has children, born before the testator’s death.
    The widow and devisees of John Douglass made amicable partition by deed of his residuary real estate, and certain lauds in New York were allotted and conveyed to Mrs. Do Forest, and the premises in question were allotted and conveyed to William O. Douglass, one of the sons, who conveyed the same to the plaintiff.
    The objection of the defendant to the title is that Mrs. De Forest took under the* will of her father, only a life estate in one undivided eighth part of the premises, with remainder to her issue, and in default of issue to her surviving brothers, and that the children of Mrs. De Forest, not having' joined in the partition deeds, had certain interests in the premises which did not pass under the deed to William O. Douglass.

      Bachetts & Lang, for the plaintiff

      Theodore F. Jackson, for the defendant.
   Gilbert, J.:

By the sixth clause of the will an absolute estate in fee was devised to Mrs. De Forest. By the eighth clause that estate was changed into a fee with a contingent limitation over, whereby the estate was devised to the brothers of Mrs. De Forest on her death Avithout issue. (1 R. S., 725, § 27.) It is probable that the testator referred to the death of Mrs. De Forest in his own life-time. (Kelly v. Kelly, 61 N. Y., 47; Livingston v. Greene, 52 id., 118.) But if he did not, the eighth clause is not repugnant to the sixth. (Norris v. Beyea, 13 N. Y., 273, Gilman v. Reddingion, 24 id., 10; Guernsey v. Guernsey, 36 id., 267.) ItAVOuldbe a perversion of the manifest intention of the testator to convert his gifts to his children into a life estate to his daughter with remainder to her brothers, for by the words of the will the gift over of Mrs. De Forest’s share could take effect only in the event of her demise without issue. If she left issue the fee devised to her would descend to such issue. To construe the avíII as vesting her with a life estate only Avould necessarily impute to the testator the intention to disinherit her children for the benefit of her brothers, to Avhom he had by the same Avill given an equal share of his estate. Such a construction would be Avholly unwarranted. But the only effect of changing the estate of Mrs. De Forest into one for life Avould be to make the brothers remaindermen instead of executory devisees. The estates under the will Avould then be a fife estate in Mrs. De Forest, and a remainder in her brothers. The children of Mrs. De Forest could in no event take any estate under the will in the lands devised to their mother.

It is not disputed that Mrs. De Forest and her brothers have conveyed the lands in controversy, and that the estate so conveyed has become vested in the defendant. If the will gave a fee to Mrs. De Forest that has passed to the defendant. If it gave to her a fife estate, and either a remainder or a future expectant estate to her brothers, the defendant has acquired all of the estates so devised. For an expectant estate is devisable in the same manner as an estate in possession. (1 R. S., 725, § 35.)

In every point of view, we think that a good title has been tendered to the defendant, and that he should be compelled to compíete His purchase. (Freeborn v. Wagner, 49 Barb., 43; S. C., 4 Keyes, 27.)

Judgment accordingly, with costs.

Dykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment for plaintiff on submitted case, with costs.


author: Gilbert, J. : Dykman, J.,

text:
    HENRY R. FOOTE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      What justifies a conviction of obtaining money by false pretences.

    Plaintiff in error purchased books of the value of 5500, giving to the seller his. check on a bank of Pennsylvania, dated on the day of the sale, June fifteenth, and payable July sixth. He stated that he was rather short at the time, and was frightened that there was not money enough to j)ay the check. In fact he had no money, and kept no account at the bank named.

      Held, that he was properly convicted of obtaining goods by false pretences. (Dykman, J., dissenting.)
    Writ of error to the Court of Sessions of Queens county, to review the conviction of the plaintiff in error of obtaining goods, by false pretences.

      Thomas 8. Moore, for the plaintiff' in error.

      Benj. W. Downing (district attorney), for the people.
   Gilbert, J. :

The important question is whether the evidence is sufficient to sustain the indictment. In determining that question it must be assumed that the jury gave full credence to the testimony of the prosecutor, for we have no power to review a conviction except for errors of law.

The plaintiff in error was charged in the indictment witli having obtained books of the value of $510 by the false and fraudulent pretence, among others, that his check on a bank in Pennsylvania, which he gave in payment for the books, was a, good and available order, and that he kept an account in said bank.

The prosecutor testified that he was a dealer in old and rare-books; that on the 15th of June, 1877, he was brought by one D’Arcy to the prisoner and introduced to him ; that the prisoner-said, I will buy your books if you will take my check, and that, he also said it will be paid the sixth of July ; that he had bought, a lot of property and was going to build, and was rather short of money; that the money was in the business, and that he was, frightened that he would not have money enough to pay the. check. The check was given and was dated June twenty-sixth, and payable July 6, '1877. The prisoner had no account in the. bank on which the check was drawn, nor any money therein, nor, so far as appears, in any other bank.

We are of opinion that the testimony presents a palpable case-of obtaining property by false pretences. The giving of the-check was a distinct representation that the prisoner kept an. account in the bank; and his statement that the money was in thebanlc must be taken to have referred to the bank on which the check was drawn, and to have been what the prisoner had on. deposit there. The effect of these statements was not qualified by the prisoner’s promise to pay the check at his office, nor by his-statement that he was frightened that ho would not have money enough to pay the check. The check being on a bank in Pennsylvania, and the prisoner’s office in New York, the promise to-take up the check and to dispense with the presentation of it was-an additional inducement to the prosecutor to part with his books, and his statement that he might not have money enough to pay the check was equivalent to an assertion that he had some money in the bank.

The case was submitted to the jury favorably to the prisoner,, and they must have found that the making the check payable at a, future day was not a mere promise, but that the whole transaction, was a device to cheat. We quite agree with their conclusion up'on the facts, and the conviction is abundantly sustained by the law. (2 Russ. on Cr. [9th Am. ed.], 639 et seq.; Wh. Cr. L., § 2107; Thomas v. People, 34 N. Y., 351; Smith v. The Same, 47 id., 303.)

~Wg have examined the exceptions but have found none that are tenable, or that require comment.

The conviction must be affirmed.

Dykman, J.,

dissenting.

The indictment under which the defendant was convicted ■charges that he falsely pretended that a certain check drawn by Rim on a bank was good and genuine, and available for the payment of the sum mentioned in it, and that he kept an account at "the bank; that the prosecutor believed the false pretences, and was induced by them to deliver to the defendant certain personal property. The pretences are then negatived. The check is as follows :

“No. 148. “Franklin, Verrango Co., Pa., )
“June 16,1877. )
•“ First National Bank of Franklin :
“ Pay to J. Cronin, July 6, 1877, five hundred and ten dollars {$510). HENRY R. FOOTE.”

The defendant was convicted, and we must assume that the testimony of the prosecution was found true by the jury. The prose■cutor testified : “I was brought by a gentleman by the name of D’Arcy, and he told me that he had a customer; Mr. D’Arcy introduced me to him — then Col. Henry R. Foote; he said, says .he, ‘ I will buy your books, if you will take my check ; ’ I will, .say I, take your check, with the understanding if Mr. D’Arcy that informed me that Mr. Foote was a mighty rich man.” This last remark of the witness was not & statement of what he told the ■defendant, but of the reason why he took his check, and hence the remark by the court : “ You need not state that.” The witness continued : “I will take your check, says I; says I, I will take your check ; says he, it will be paid on the sixth day of July.” •Q. “He said it would be paid ? A. Yes ; on the sixth of July, ■says he ; said I, very well.” The court: “He said the money was in the bank ? A. Yes, sir.” On his cross-examination, this witness testified as follows : Q. “ What did he say at the time he gave you the check ? A. He said, I will give you a check upon, my bank, and you can come into my ofiice at any time and I will pay the check. Q. He said you can come into my office at anytime? Yes; that he was short of'money. Q. And he-would, pay the check ? A. Yes, sir. Q. What did he say as to the amount of money ? ■ I understand you to say that he said- he had not money enough to meet the check. ■ Q. Did you not say that on your direct examination ? A. I did. The court: The -question is whether; on your direct examination, you stated that CoL Foote had said that he was ■ afraid he had not money enough in the bank to pay the check ? A. That was the time he was giving me the check. Q. He did say. so ? A. Fie did.”

Here, then, we have • a case where a person having some books, to sell sought the defendant, after being told that he was a customer, and requested him to buy, and the defendant said, “ I will buy, if you will take my check.” This was agreed to, and he> made the purchase, and then drew his check, dated June sixteen,, payable July six, and delivered it, and said at the same time he* had not money enough in the bank to pay it, but that it would-be-, paid on the sixth day of July. The defendant testified that payment of the check was to be made at his office in Now York, and. it is evident that was so, for the prosecutor went there with it for that purpose the day before it was payable, and did not have it presented at the bank until he found he could 'not collect the: money from the defendant. There was no representation by the-defendant that the check was good, or that he had property, or that the money was in the bank. On the contrary, he said it was not. He said he owned some pictures, and that he was going to> build, and the uncontradicted testimony is that both these statements were true. There was no artifice or fraud or deceit used, to induce the sale or the acceptance of the check. On the contrary, he was sought out and requested to make the purchase, and. agreed to do so on condition that his check, payable twenty days: ahead, would be accepted. There is nothing to show any criminal intent, or to carry the case beyond the line of broken .promises and a failure to pay into the regions of criminality, or even fraud.. There was not one single false pretence shown; and, to constitute-this crime, some pretence must be used which is false, and used with intent to perpetrate a fraud.

The offence consists in intentionally and fraudulently inducing the owner to part with his goods, or other things of value,- either by a willful falsehood or by the offender’s assuming a character he does not sustain, or by representing himself to be in a situation which he knows he is not in.” (The People v. Haynes, 11 Wend., 558.) “ To constitute the offence, several things must concur. 'There must be an intent to cheat or defraud some person. For •that purpose, some false pretence must be designedly used, and •the fraud must be accomplished by means of the false pretence.” (The People v. Crissie, 4 Denio, 527.) The proof fails to bring •this case within these requirements.

In the case of The People v. Carl Lesser, recently decided in the Court of Appeals, the check was post dated, and the opinion .says: “If there had been no representation made, except by the delivery of the check, and the prosecution rested wholly on the .allegation that the money was in the bank, the point which the prisoner’s counsel seeks to raise would be good in the case, and the circumstance that the check was post dated would be very material. Under the circumstances, we think that the evidence was sufficient to justify a finding that the prisoner represented that the check was good, and the maker a man of substance, whilé he knew that it was worthless, and was a false token got up for the purpose of defrauding the prosecutor; ” and, on this last .ground, the conviction was affirmed. It cannot be claimed that there was any evidence to justify any such finding in this case. ‘There is not a single circumstance to show that there was any •device to defraud the prosecutor at all. The check given was a genuine one, and amounted only to an undertaking or promise that the money should be in bank to meet it when it became payable, and was accompanied with a declaration that it was not there. The essential .elements of a crime are wanting, and the -conviction should be reversed.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Conviction affirmed.


author: Dykman, J.:

text:
    ELIZA McEWEN, Appellant, v. EUGENE A. BREWSTER, as Executor, etc., and others, Respondents.

      Agreement to pay money out of a trust fund — when not an assignment thereof— Smplus income of cestui que trust — how reached.

    The plaintiff was entitled to receive the interest and income of certain personal property held by the defendant Brewster as executor, during her life. One M. agreed to give plaintiff a home, and support and maintain her in consideration of receiving the income to which she was entitled under the will; in pursuance of which plaintiff gave to him a power of attorney to receive the income from the executor, which has never been revoked.
    In an action by the receiver, appointed in supplementary proceeding instituted on a judgment against M., to recover surplus income in the hands of the executor, held, that neither the agreement nor the power of attorney operated as an assignment of the income to M., and that the receiver was not entitled thereto.
    The surplus income of a cestui que trust cannot be reached by a receiver In supplementary proceedings.
    A judgment-creditor after execution issued and returned unsatisfied may maintain an action therefor.

      Campbell v. Fostei• (35 N. Y., 361), followed; Williams v. Thorn (70 id., 270), explained.
    Appeal from a judgment entered upon the report of a referee.
    The money in question (the income of certain trust funds) is claimed by the plaintiff in this action, brought for the recovery thereof from the executor holding the fund; it is also claimed by the defendant Weed, a receiver appointed in supplementary proceedings under a judgment in favor of Caroline Millspaugh against this plaintiff for her board and support, and by the defendant Parmenter, a receiver under a judgment against Newton B. Millspaugh, the husband of Caroline Millspaugh. The referee decided that, the last named receiver was entitled to it. From the referee’s findings it appeared, among other things, that Peter Neafio died leaving a will, which contained the following provisions, to wit;
    That the executor should keep the proceeds of the testator’s personal estate invested during the lives of his wife Margaret and her sister Eliza McEwen, and during the lifetime of the survivor of them, and pay over the interest and income thereof to the said Margaret and Eliza, during their lives in equal shares and to the survivor during her life.
    The plaintiff is the Eliza McEwen above mentioned, and the defendant Eugene A. Brewster is one of the executors named in said will, and now holds the fund derived from said personal property, amounting to $4,000, for the said uses and purposes, and that the widow Margaret died many years since; the said Eliza McEwen is seventy-eight years of age, and is a feeble person, and has no other source of income than that receivable under the provisions of said will.
    The said provision was. made by the said Peter Neafie for her support and maintenance. The plaintiff has boarded with one Newton B. Millspaugh for more than eighteen years past, under the following agreements : Millspaugh was to give her a home, furnish her with clothes and what she should need, and was to take the income under the will for his pay, and about the same time, to wit, on the 26th day of December, 1859, the plaintiff executed to Millspaugh a power of attorney authorizing him to receive the income from the executor. This power of attorney was deposited with Mr. Brewster the executor, and has not .been revoked. The arrangement was communicated to the said executor and he acquiesced in it, and from time to time paid over the income to said N. B. Millspaugh.
    At the time of the commencement of this action, the said plaintiff still resided with said Millspaugh, and he had up to that time furnished and provided her maintenance and support as agreed, and had actually received from the said executor the said income except the sum of $500, which still remains in the hands of the said Brewster, although said Millspaugh had demanded the same; the said income was not any more than a just equivalent for said maintenance.
    One Caroline Millspaugh, the wife of said Newton B. Millspaugh, heretofore brought an action against Eliza McEwen to recover for the same board and maintenance, which is hereinbefore mentioned as having been furnished by said Newton B. Millspaugh, and judgment upon an offer was entered for the same, and proceedings were had thereunder to reach the $500 in the hands of the defendant Brewster, as property in the hands of a third person belonging to the judgment debtor; an injunction order was issued in such proceedings and served on the defendant Breswter, which still remains in full force, and by an order dated March 17, 1877, the defendant Harvey Weed, jr., was duly appointed receiver of the debts, property, etc., of the said Eliza McEwen, and the defendant Brewster was therein restrained from making any disposition of property in his hands 'belonging to said Eliza McEwen. This order was also served on the defendant Brewster and still remains in full force. Such proceedings have heretofore been had in this court that by an order dated the 20th day of September, 1876, the defendant Samuel J. Parmenter was appointed receiver of the debts, property, etc., of the said Newton B. Millspaugh.
    The referee in the present action found as conclusions of law that the balance of the income in question, to wit, the sum of $500 which still remains in the hands of the defendant Brewster, must be regarded as having been received by the plaintiff and applied and paid over to her use, and as having been transferred to said Newton B. Millspaugh, in payment for the support of the said Eliza McEwen, and as so much money in the hands of said Brewster belonging to said Millspaugh; that although the plaintiff could not alienate said income, yet by her acquiescing in and acceptance of board and maintenance under the arrangement above set forth, and in permitting the said Millspaugh to expend the money and do the labor necessary to furnish such maintenance, she is equitably estopped from denying that the said income was applied to her use and has been transferred to, and became the property of said Millspaugh ; that the right and property of the said Millspaugh in the said sum of money passed to said Samuel J. Parmenter as receiver, etc., by virtue of his appointment as such.

      Chas. H. Winfield, for the appellant.

      Howard Thornton for Parmenter, receiver, respondent.
   Dykman, J.:

By his last will and testament, Peter Neafie directed his executors to keep the proceeds of his personal property invested during the lives of his wife and Eliza McEwen, the plaintiff, and during the life-time of the survivor of them, and pay the interest and income therefrom to them, during their joint lives, in equal shares, and to the survivor during her life. The wife of the testator is dead, and Mr. Brewster, as one of the executors, has the fmid invested, and there is now in his hands about $500 óf the accumulated income. This money is claimed by the plaintiff in this action, by the defendant Weed, a receiver appointed in supplementary proceedings under a judgment in favor of Caroline Millspaugh against this plaintiff for her board and maintenance, and by the defendant Parmenter, a receiver under a judgment against Newton B. Millspaugh, the husband of Caroline Millspaugh, and the referee .has decided that the last receiver is entitled to it. This conclusion is based upon the fact found by the referee that Newton B. Millspaugh agreed to give the plaintiff a home, furnish her with clothes and what she should need, and to take the income under the will for his pay; and that, about the same time, the plaintiff gave him a power of attorney to receive the income from the executor, which has never been revoked. The referee further finds, as a legal conclusion, that, by acquiescing in and accepting board and maintenance under this arrangement, the plaintiff is estopped from denying that the income was applied to her use, and has been transferred to and become the property of Millspaugh.

If this fund can now be reached by Parmenter, as receiver, it must be through Millspaugh, and because it belonged to him. It did not belong to him, unless it had been in some way transferred to him. Has that been done ? In the first place, the contract with Millspaugh was nothing more than an agreement to pay him out of this particular fund. That did not amount to an assignment of it. There was no appropriation of the fund, by order upon it or otherwise, by which the executor would have been justified in paying it to the creditor, without the further interference of the plaintiff, and because the fund belonged to the plaintiff, a power of attorney was necessary to authorize the executor to pay the money to Millspaugh for her. She controlled the fund, and could have revoked the power of attorney at any time, and required the payment to be made to her personally.

Certainly the power of attorney did not operate to assign the fund. That only created an agency to draw money belonging to the principal for her, and the acceptance of it was an acknowledgment of that relation, and an admission that the money to be drawn did not belong to the attorney, but was the money of the plaintiff.

The referee fell into an error, and the judgment entered on his report must be reversed, with costs ; but, as there will probably be a new trial, it may be well to indicate our views respecting the ultimate rights of these parties.

A receiver in supplementary proceedings cannot take the interest of a beneficiary in a trust fund, because it is inalienable and cannot maintain an action to reach the surplus income beyond what is required for the support of the debtor. (Campbell v. Foster, 35 N. Y., 361.) In the recent case of Williams v. Thorn (70 N. Y., 270), it was held that an action may be maintained by a judgment creditor, after the returns of an execution unsatisfied, to reach surplus income beyond what is necessary for the suitable support and maintenance of the cestui que trust, and those dependent upon him. The doctrine of Campbell v. Foster on the point .above mentioned is expressly recognized. Neither of these receivers can, therefore, reach this fund. Caroline Millspaugh might reach it by a direct action upon her judgment, after execution returned, but she has commenced no such action.

It follows, therefore, that the plaintiff is entitled to recover in this action.

Judgment reversed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment reversed and new trial granted at circuit, costs to abide event.


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    EDWARD Z. LAWRENCE as Receiver of the American Popular Life Insurance Company, Appellant, v. NATHANIEL CONKLIN and others, Respondents.

      Deed procured by fraud — when a mortgage by a subsequent grantee is void as to the real owner.

    The defendant Conklin, being the owner and in possession of a farm, entered into an agreement to sell it to one Millard on payment of an amount, and at a time-specified therein. Before the time for the said payment Millard fraudulently procured Conklin to execute a deed of the farm, and allow him to take it for the purpose of exhibiting it, he agreeing to make no other use of it until the price was paid. Millard, without paying the purchase-price, conveyed it to Ferguson, who knew that Conklin was in possession, and had not been paid. Subsequently Ferguson conveyed to one Van Tassel, who g&ve back to him a purchase-money mortgage, which he assigned for a valuable consideration to the plaintiff.
    Neither Van Tassel nor the plaintiff made any inquiry of Conklin, who was, at all times, in possession of the farm. In an action to foreclose the mortgage, held, that it was void as to the defendant Conklin.
    Appeal from a judgment in favor of the defendant Conklin, entered upon the trial of this action by the court without a jury. The action was brought for the foreclosure of the mortgage hereinafter mentioned.
    The court found that on the 5th day of August, 1873, the defendant Nathaniel Conklin was the owner in fee and in possession of the lands and premises known as the “ Conklin farm,” which are the same lauds and premises described in the complaint in this action. On the 17th day of July, 1873, the defendant Conklin entered into a written agreement with the defendant Nehemiah Millard to sell and convey to him his said farm on his, Millard’s, paying therefor the sum of $9,000 in money, or securing this amount to said Conklin by mortgage, as particularly mentioned and stated in the-said written agreement. On the said 5th day of August, 1873, and before the time fixed in the said agreement for the execution or delivery of the deed, the defendant Millard came to the defendant Conklin, at his residence, upon his said farm, and requested him to execute the deed of his said farm, called for by the said agreement, to enable' him, the said Millard, to exhibit it. The said Millard, to induce the defendant Conklin to execute such ■deed, and intrust him with the possession thereof, falsely and fraudulently represented and stated to the defendant Conklin that he wanted the possession of the deed simply to exhibit it, and not to use it in any other manner, and would not make any other use of it before paying or securing the purchase-price for said farm, and he falsely assured said Conklin that he would return the said ■deed if he did not pay the purchase-price of the farm or secure the same; that induced by the false and fraudulent representations of the defendant Millard, and believing that he was acting in good faith, the defendant Conklin did, on the said 5th day of August, 1873, execute, in conjunction with his wife, a deed of his said farm to said Millard, and did intrust him with the possession thereof for the sole purpose of exhibiting the same, and not for the purpose or with the intent of transferring thereby the title of his said farm to the said Millard; that the defendant Millard, on ■obtaining the possession of the said deed, for the purpose of cheating and defrauding the defendant Conklin, did, within a few days thereafter, without his, Conklin’s, knowledge or consent, and without paying or seeming, or intending to pay, or secure the purchase-price of said farm, execute a deed of the said farm to. the ■defendant John S. Ferguson, who knew that the defendant Conklin was in the possession of the said farm, and had not been paid any part of the purchase-price agreed to be paid therefor by the defendant Millard; that the defendant Ferguson did not, before receiving his deed from Millard of said farm, or before paying any 2>art of the purchase-money agreed by him to be paid therefor to said Millard, inquire of the said Conklin why he remained in possession of the said farm, nor what his rights thereto were ; that the defendant Ferguson, soon, after he obtained the deed of the said farm from the defendant Millard, made a conveyance thereof to the defendant Ellen Van Tassel, who, in conjunction with her husband, the defendant Isaac G. Van Tassel, executed and delivered to the said Ferguson the mortgage in the complaint mentioned ; that before receiving the deed from the defendant Ferguson, the defendant Ellen Van Tassel did not, nor did her husband, Isaac G. Van Tassel, make any inquiry of the defendant Conklin why he continued in the possession of the farm, nor what his rights were, although they knew he, said Conklin, was in the actual possession of the farm; that at the request of the defendant Ferguson, .and with the knowledge and consent of the defendants Millard and Isaac Gr. Van Tassel, the American Popular Life Insurance Company purchased, for a valuable consideration, the mortgage in the complaint mentioned; that such purchase was made without the knowledge or consent of the defendant Conklin, and without any inquiry on the part of the said insurance company of the said Conklin, why he remained in possession of the farm, nor what his rights were to the same.

      Geo. W. Wingate, for the appellant.

      8. Earl, for the respondent, Conklin.
   Dykman, J.:

If this mortgage can be foreclosed, and a good title can be obtained to the premises under the judgment, then there is opened up an easy way to deprive land owners of them property without compensation, and without their knowledge or assent; and if this scheme succeeds there is no reason why the case should remain long a solitary one, as there are doubtless many persons as confiding and unsuspecting as old Mr. Conklin, and Millard is not the only one of his like, extant. The success of the plaintiff would also show that if the possession of a deed can be obtained by fraud and deception, conveying land to the person receiving it, then the grantee can make a conveyance which will vest a good title, although he had none himself to convey. Here Millard, by false representations, procured the possession of the deed for a specific purpose. It was not delivered to him as a conveyance, and he took nothing under it. Then he made a pretented conveyance of the premises to Ferguson, who knew at least that he had not fulfilled his contract with his grantor. Ferguson, who then made a deed to Ellen Van Tassel, and took back the mortgage in question, which he assigned to the insurance company, who took it subject to all the equities existing between the mortgagor and mortgagee. (Greene v. Warnick, 64 N. Y., 220.) As, therefore, Ferguson took no title from Millard, because he had none to give him, so Ellen Van Tassel took no title from Ferguson because he had none to give her, and as she took no interest in the land under her deed she could create no incumbrance thereon by her mortgage.

It is true the insurance company was an honest holder of the mortgage, and the money so received on the assignment was probably the first that had been realized from the fraudulent scheme ; yet that is not sufficient. As Ferguson could not have enforced this mortgage against either the mortgagee or Conklin, neither can the plaintiff do so, as he occupies the same position. If there had been no fraud in the transaction, and Conklin had voluntarily placed Millard in the position he seemed to occupy, as the grantee in the deed to him, then Conklin would have been responsible for the appearances which he created, and been estopped from denying the title of a bona fide purchase from Millard. But fraud vitiates every transaction into which it enters, and here the fraud was most gross and wicked. An aged man of more than four score years is induced by his lawyer, in whom he had been doubtless accustomed to confide, to execute and deliver to him a deed of conveyance of all he had on earth, for the purpose of exhibition, to facilitate a sale which the old man had been long desirous of making. Instead, however, of answering the trust reposed in him he attempted to convey the property in his own interest, and perpetrated the fraud which had its climax and fulfillment when the money was obtained from the insurance company on the mortgage in question.

Upon such a transaction a court of equity will lay no light hand, but will stamp it with its strong condemnation, wherever or however it may be presented ; and one of the most pleasing duties that the courts perform is to frustrate and prevent the consummation of such schemes of fraud and wrong.

The judgment should be affirmed, with costs.

Present — Gilbert and Dyxman, JJ.; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


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    PETER A. JOHNSON, Respondent, v. CONRAD MYER and CHARLES H. WATSON, Appellants.

      Action against hail — execution against the person — to what county it should he issued.

    A defendant in an action for libel was arrested in Morrisania, Westchester county, where he then resided. Subsequently by an act of the Legislature, Morrisania was annexed to the county of New York. Judgment having been recovered, execution against the property of the defendant was issued to the sheriffs of the counties of New York and Westchester, and upon their return unsatisfied an execution against his person was duly issued to the sheriff of New York, and by him returned to the effect that defendant could not be found.
    In an action against the bail, held, that it was not necessary to issue an execution against the person to the sheriff of Westchester county, as at the tíme of the issuing thereof the defendant did not reside therein.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury,

      F. G. Salmon, for the appellants.

      T. O. Cronin, for the respondent.
   Dykman, J.:

This is an action on a bail bond, given to procure the discharge of the principal from arrest in an action for libel. At the time of the execution of the bond, the principal resided in the town of Morrisania, Westchester county, and the arrest was there made. In January, 1874, the town of Morrisania was annexed to the county of New York by an act of the Legislature. Judgment was obtained in favor of the plaintiff in the main action in March, 1874, which was docketed in the counties of New York and Westchester, and execution against the property of the defendant was issued to the sheriffs of both those counties and returned unsatisfied. An execution was also issued against the person of the defendant to the sheriff of the county of New York, returnable within sixty days after its receipt by the sheriff, to which the sheriff made return that the defendant could not be found. This execution was received by tbe sheriff on the 21st day of May, 1874, and returned by him on the 5th day of June, 1874, which was not less than fifteen days after its receipt. No execution against the person of the principal defendant was issued to the sheriff of Westchester county ; and now it is claimed that no recovery can be had against the bail for that reason. Sections 596 and 597 of the Code of Civil Procedure seem to embody the former provisions of the Revised Statutes on this subject, and to regulate actions against bail on arrest. . ■

These two sections provide substantially that an action cannot be brought against bail, until an execution against the property of the defendant has been issued to the sheriff of the county in which he was arrested, and returned by that sheriff wholly or partially unsatisfied; and an execution against the person of the defendant has been issued to the same sheriff and by him returned not less than fifteen days after its receipt, to the effect that the defendant could not be found within his county.

In this case no execution against the body of the defendant was issued to the sheriff of the county in which he was arrested, and that is relied upon to defeat a recovery. Was that necessary ? All the other requirements of these sections were complied with.

The legislative object, in requiring the issuing of an execution against the body of the defendant to the sheriff of the county in which the arrest was made, was in the interest of the bail to secure his arrest, or a return that he could not be found in the county, as he would usually be arrested in the county of his residence, the presumption would be that he still continued there, and could be arrested and brought in by the same sheriff. This presumption in this case is now overthrown by the act of the Legislature in placing the town of his residence out of the county of his arrest and into the county of New York. His residence was no longer in Westchester county, and an execution to the sheriff of any other county of the State would be as likely to produce the body of the defendant as one "to that county. It would be a mere idle ceremony to procure a return that the defendant could not be found in the county of Westchester. Whereas, an execution to the sheriff of New York county would be likely to reach the body of the defendant because that was then the county of his residence. The issuing an execution to that county complied with the spirit and intention of the law and was a fulfillment of its requirements. It was most likely to produce the body and relieve the bail.

The judgment should be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment affirmed, with costs.


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    JARRET C. HALLENBECK, Respondent, v. COMPANY E, THIRTEENTH REGIMENT, NEW YORK STATE NATIONAL GUARD, Appellant.

      Appeal to County Court — when no imdei-takingt required of the appellant.

    "Where a defendant, against whom a judgment for more than fifty dollars has been recovered in a justice’s court, appeals to the County Court upon questions of law only, no undertaking need be given.
    An undertaking is only required where a new trial is to be had in the County Court, or a stay of execution on the judgment is desired.
    Appeal from an order of the County Court of Kings county, dismissing an appeal from a judgment rendered by a justice of the peace of the city of Brooklyn, against the defendant for ninety-seven dollars and six cents.

      Henry J. Oresta, for the appellant.

      John P. Troy, for the respondent.
   Dykman, J.:

The plaintiff obtained a judgment against the defendant in a court of a justice of the peace for more than fifty dollars, and the defendant apjiealed to the County Court from the judgment, and stated in the notice of appeal that such appeal was taken upon questions of law only. No undertaking was given and a motion was made in the County Court to dismiss the appeal for that reason, which was granted, and now the defendant appeals from that order.

By section 352 of the Code of Procedure no new trial could be had in the appellate court on this appeal. Section 355 of the Code provides that when, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, give security as provided in the next section ; and in all other cases he shall give security if he desires a stay of execution of the judgment. In this action, therefore, as the appellant was not entitled to a new trial in the appellate court security was not necessary for the perfection, of the appeal, and was only necessary to stay the execution of the judgment.

The order dismissing the appeal must therefore be reversed* with ten dollars costs and disbursements.

Barnard, P. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order reversed, with costs and disbursements.