author: BoaedmaN, J.: Bocees, J.:

text:
    ABRAHAM V. DE WITT and others, as Executors, etc., of JOHN T. COOPER, Deceased, Plaintiffs, v. ANGELICA S. COOPER and others, Defendants.

      What, constitutes a tenancy for life — who bound to make ordinary repairs and pay taxes.

    A testator, by bis will, gave to his widow his dwelling-house and stable, and a country seat, so long as she should use and occupy the same, and, after giving certain legacies and annuities, gave, devised and bequeathed “all my (his) estate, both real and personal, whatsoever and wheresoever situated” (but subject to the payment of the said legacies and annuities), to his trustees, “in trust to receive the rents, issues and profits thereof; and after paying all taxes, assessments and repairs, insurance premiums and the expenses of executing this trust,” directed them to pay an annuity of ¡¡j¡10,000 to his widow, and apply the surplus as therein otherwise provided. His trustees were also authorized to make alterations and repairs “ to any of my (his) property,” and to repair or rebuild any that might be destroyed by fire or the elements.

      Held, that the gift of “ all my estate, both real and personal,” to the trustees covered only the property not otherwise expressly disposed of, and did not include the dwelling-house and country seat, and that the provision requiring the trustees to pay the taxes, etc., did not apply to them.
    That the widow had an estate for life in the dwelling-house and country seat, and was bound to make ordinary repairs thereto and pay the taxes thereon.
    SubmissioN of a controversy, without action, under section 1279 of the Code of Civil Procedure, upon an agreed state of facts touching the construction of certain clauses in the will of John Taylor Cooper, deceased.

      Samuel Hand and O. T. F. Sjjoor, for the plaintiffs.

      II. W. Peclcham, for the defendant Angelica S. Cooper.
   BoaedmaN, J.:

By the terms of Mr. Cooper’s will ho first gaye to his wife a life estate in his Albany dwelling-house and his country house, known as Guy park. In a later clause of his will he gave all his estate, real and personal, whatsoever and wheresoever situated, .to his trustees therein named, to receive the rents, issues and profits thereof, and after paying all taxes, assessments and repairs, insurance premiums, and the expenses 6f executing this trust, and said legacies and annuities as above given, to apply the same as follows : $7,000 to his wife annually, and “ the balance of said net rents, issues and profits” to other persons named. Mrs. Cooper, by her counsel, contends that this gift of all his real and personal estate includes the two residences, out of which a life estate is carved for her, and, as a consequence, that the trustees under the will are bound to pay all taxes, assessments, repairs and insurance premiums upon the two residences aforesaid, owned by her. It is conceded that, by the general rule, the tenant for life must pay the ordinary taxes and repairs. If any other rule shall be applied in this case, it will be due to express directions of the testator, by which it shall be indicated it was his intent that Mrs. Cooper should be exempted from such payments, and that they should be paid out of the residue of his estate .by his trustees. If the clause by which all his estate is given to trustees is so repugnant to the prior clause by which a life estate is given to Mrs. Cooper of the two residences and lots, then the life estate cannot stand. But this ’ rule is never applied, except when the two clauses are irreconcilable. In this case they are not even inconsistent, because Mrs. Cooper’s life estate is referred to and, in effect, excepted from the gift of all his estate.

The plain and evident intent of the will is to give Mrs. Cooper an ordinary life estate in the city house and lot and in the country residence, and that all the rest of his real estate shall go to the trustees, out of which, with the personal property, rents, issues and profits shall be derived for the payment of legacies and annuities. If all the estate were devised to the trustees, Mrs. Cooper would have no life estate, and tile trustees would be required to lease the two residences so as to obtain therefor the income which they, as trustees, are to receive and apply under the terms of the devise to them. The testator evidently intended to give to his trustees in trust all of his real estate, not thereinbe-fore disposed of, and that intent is plainly enough expressed in the will. Whether that gives the trustees any estate or interest in the city and country house and lands given to Mrs. Cooper for life, or whether as to the remainder in them he' died intestate, it is not now necessary to decide.

Of the property which' the trustees became vested under the will, they had the management and control for the purpose of deriving rents, issues and profits. But of Mrs. Cooper’s life estates and of the lands from which such life estates were taken, the trustees could have no control during her life, and hence a direction to apply the rents, etc., of such lands would be absurd.

' The subsequent direction of the testator, in regard to payment of taxes, observes the same distinction. It is a direction to the trustees to pay the taxes on the property given to them by the will, in a particular manner, by specified times. Neither that nor any other clause in the will clearly indicates an intention of the testator, that Mrs. Cooper should not be required to pay taxes and make repairs in the ordinary manner required by law of life tenants. It will not suffice that a plausible construction of words and sentences might lead to such a conclusion, but the intent must be reasonably certain, and the language clear enough to justify a disregard of the general rule. (Lawrence v. Holden, 3 Bradf., 142.)

We conclude, therefore, that Mrs. Cooper is legally bound to pay all ordinary taxes and make all ordinary repairs. As to extraordinary assessments and permanent improvements the burden should doubtless be apportioned between the tenant for life and the remainderman. (Peck v. Sherwood, 56 N. Y., 615; Cairns v. Chabert, 3 Edw. Ch., 312.) The same is true in regard to insurance, though no reason is seen why each party may not insure on his or her» own account such interest as he or she may possess, or leave the same uninsured at pleasure.

Judgment is ordered for a construction of the will in accordance with the foregoing opinion, with costs of both parties to be paid out of the estate ; the form of judgment, in case of disagreement, to be settled by BoaedmaN, J.

Bocees, J. concurred ; LearNed, P. J., not acting.

Bocees, J.:

On reading the will and codicils as an entirety, it appears very manifestly, I think, that the testator intended to place Mrs. Cooper, on and after his decease, in a position entirely independent of the executors and trustees, as to her right to use and enjoy the property given to her, including the $10,000 annuity. Evidently it was intended that she should be in no way dependent upon them, or subject at all to their supervision or dictation as to such property. So she was given an annuity of $10,000 absolutely, to be paid to-ller in quarter-yearly payments. This aggregate sum was to be her own property, to be used, employed and enjoyed by her in accordance with her own wishes and purposes. The executors and trustees had no charge over it or duty in regard to it, except to make payment of it as directed in quarter-yearly payments.

The testator also gave Mrs. Cooper the coach horses, coach, barouche, double sleigh, and the harness and equipage thereto belonging. This property, like the annuity, became her absolute property ; and it may be here noted that he also gave her, absolutely, script for stock or bonds to the amount of $5,000. He also gave her his household furniture, silverware, platedware, library, statuary, pictures, prints and household effects, of every kind, for and during her life. He also gave her the dwelling-house No. 134, on State street, Albany, with the stables and coach house m the roar, so long as she should occupy the premises ; and also his country seat “ Guy park,” with the household furniture, etc., for life, provided she should use and occupy the same as a country scat.

The devises and bequests to Mrs. Cooper were expressed in clear and apt words to give her absolute and unqualified rights of property. She was vested with the entire title to part, and with what was in law, at her election, a life estate in the remainder of wbat was bestowed upon her by the will. There was no trust estate created to be held by a trustee for her benefit. Whatever rights of property were devised and bequeathed to her were given absolutely, for her sole use and subject only to her control.

Nor is there anything in other or subsequent provisions of the will which works any change, as regards Mrs. Cooper’s rights of property thereunder. The original will, with the codicils, must be read together as one entire instrument. Then let the codicils be incorporated into the original will preceding that portion of it which creates and declares the trust, and thus read, it will be seen that the testator gave the use of two pieces of real property to Mrs. Cooper (dependent upon her election as to occupancy); also an annuity of $10,000 ; and also stock or bonds to the amount of $5,000. He also gave several annuities to other persons, and made some bequests of money and specific articles of property ; all, however, being absolute and unqualified gifts. Thus, as regards the two pieces of real property, there was carved out an estate to Mrs. Cooper for life, at her election as to occupancy. So after making the provisions above referred to, the testator disposed of the remainder of his property, comprising the great bulk of it, as follows : “I give, devise and bequeath all my estate, both real and personal, whatsoever and wheresoever situated, * * * but subject to the payment of the above annuities, * * * and * * * legacies, if not lapsed * * # and subject to the use above given to my wife, unto” (the trustees named) “in trust to receive the rents, issues and profits thereof; ” then follow specified directions as to the application of them, and as to the ultimate disposition of the trust estate. It seems quite plain, I think, that the testator intended to preserve to Mrs. Cooper her rights of' property, separate and distinct from the body of his estate, which was given in trust to the trustees named. Such is the fair and true import of the language employed by him in declaring his purpose in the will.

Mrs. Cooper then was life tenant of the two pieces of real property, the use of which was devised to her, dependent upon her election to occupy them. Having elected to occupy, and accepted the use of the property, the burden of ordinary taxation and needful repairs for its present use must fall upon her. Such is the settled doctrine of the law, in the absence of express direction casting the burden elsewhere. (Parkinson v. Parkinson, 2 Bradf., 77-79; Lawrence v. Holden, 3 id., 142; Cairns v. Chabert, 3 Edw. Ch., 312; Peck v. Sherwood, 56 N. Y., 615; Lansing v. Lansing, 45 Barb., 182; Moseley v. Marshall, 22 N. Y., 200; Deraismes v. Deraismes, 72 id., 154.) These cases hold that there must be some express provision to disturb this settled rule. We do not find in Mr. Cooper’s will any declared purpose or intent to cast the burden of taxation and repairs, as regards the estate devised to Mrs. Cooper, upon the trust estate, and not upon the life tenant. As before stated the testator gave Mrs. Cooper absolute rights of property. It was the remainder of his property, other than that devised to Mrs. Cooper and bequeathed absolutely, that he put in trust in the hands of trustees. As to this trust property the trustees were to receive the rents, issues and profits thereof, and after paying all taxes, assessments, repairs and insurance premiums, etc., then to apply the same as there directed. The testator here had reference to the trust property. From the rents, issues and profits thereof the trustees were to satisfy the taxes and assessments to be levied thereon, and the expenses for repairs and insurance which might be necessary for its protection. Not only is there no express provision changing the rule of law above stated, but it is quite manifest that the estate given Mrs. Cooper was not intended to be under the care or supervision of the trustees for any purpose whatever. True, the testator authorized his trustees to lease “ my real estate,” * * * “ and to make alterations and repairs to any of my property as to them may seem meet, and to repair and rebuild ” in case of destruction or injury by the elements, but evidently such provision had reference only to the property held in trust. So, too, when the testator directed that “ all taxes ” on his city property should be paid prior to the first of January, so that “my estate” may have the benefit of the deductions allowed for prompt payment, and imposed this duty on his trustees, he evidently intended all taxes assessed upon the trust property. Certainly there was no duty expressly cast upon the trustees, save as to the property put in trust in their hands.

In conclusion, we are of the opinion that the claims of Mrs. Cooper, to be relieved from the taxes assessed upon the two pieces of real estate, the use whereof was given to her by the will, and from expenses for necessary repairs thereon for its present use, are not well founded ; and as regards the question as to premiums for insurance, unless she can arrange with the trustees for an * apportionment of the sum necessary to meet that expense, she must, if she desires insurance, secure it on her own interest in the property.

The plaintiffs, executors and truste.es are entitled to judgment in their favor on the questions submitted to the court, and all the parties, plaintiffs and defendants should have their taxable costs' from the estate.

BoakdiiaN, J., concurred.

Judgment for plaintiffs in accordance with opinion; costs of both parties to be paid out of estate; order to be settled by Boardman, J.


source: Caselaw Access Project

author: Bocees, J.: LeaRNed, P. J.:

license: Public Domain

text:
    RYNEAR VAN GIESEN, Appellant, v. SAMUEL BRIDGFORD, Respondent.

      Letters of administration — when refused — When an estate will be presumed to havebeensettled, after along lapseoftime— Term “instituted heir” intheeivil law — duties of such an heir.

    In an application to the surrogate of the county of Albany for letters of administration, -with the will annexed, of Anneke Jantz Bogardus, deceased, it was alleged- and admitted that she died in 1663, within the county of Albany.

      Held, that the letters could not be issued on the ground that the deceased was an inhabitant of the county of Albany, as it was not shown that she was an inhabitant of that county at or immediately prior to her death; nor could they be issued on the ground that she died within the county, leaving- assets therein, as it was not shown that she was a non-inhabitant of the State.
    The deceased died in 1663, and this application was made in 1878. Held, that, in such a case, where proceedings are instituted centuries after the occurrences which they are intended to revive took place, with a view to the disturbance of rights of property, long supposed to have been settled, a full compliance with all formalities should be required, and the party prosecuting such proceedings should be held to the strictest rules and requirements of the law.

      By hei' will the testatrix nominated and instituted “ as hoi' sole and universal heirs, her children,” naming- them. Held, that at the time of her death the civil law, as modified by the laws and usages of Holland prevailed in this State, and that by that system the execution of the will devolved ujion the “instituted heir,” without the issue of any letters testamentary to him or to any person as an executor or administrator with the will annexed.
    Appeal from a decree of the surrogate of the county of Albany, denying an application of the appellant for letters of administration with the will annexed of Annoke Jantz Bogardus, deceased.

      J. J. Perry, for the appellant.

      O. T. F. Spoor, for the respondent.
   Bocees, J.:

This is an appeal from the decree of the surrogate of Albany county, denying the application of the appellant for letters of administration, with the will annexed, of Annoke Jantz Bogardus, deceased. The applicant for letters, present appellant, a resident of the State of New Jersey, presented his petition to the surrogate of Albany-county, wherein he represented that he was a child of the seventh generation, and the nearest of kin now living of the deceased Annoke Jantz Bogardus, and heir to her estate, and entitled to share in the distribution thereof; that said Anneke died in March, 1663, at (then) Port Orange, in the present county of Albany, leaving a last will and testament of both real and personal estate ; that such will was filed and proved as the law then required, and yet remains of record in the county of Albany, and that a copy thereof was annexed to the petition; that no executor was named therein ; that at the time of her death the deceased vras seized and possessed of both real and personal property situated in said county, of which personal property there yet remains a family Bible and other chattels undivided; and that no administration of the estate had ever been had. The appellant also named in his petition various persons living, next of kin and heirs-at-law of the deceased, obtained a citation, and, on its return, asked for letters of administration, with the will annexed, to be granted to him. Accompanying the petition to tbe surrogate was an affidavit of the appellant, stating that he was a lineal descendant and heir-at-law of the deceased ; that none of her lineal descendants, except one whose position did not bar the appellant's claim, had made wills, and that with said exception the lineal ancestors of the appellant had all died intestate ; and, further, that no letters of administration had been granted on the estate of the deceased under her will or otherwise to his knowledge.

The respondent appeared in the surrogate’s court on the return of the citation; sot up that he was a lineal descendant of the deceased; that there was no personal property of the deceased undisposed of under the will; that all title thereto was gone from lapse of time ; and he denied that the appellant had any interest in the inheritance claimed by him; and generally denied the jurisdiction of the court in the premises.

Upon the matters thus presented proofs were submitted to the ’ court. It was admitted by the respondent that the decedent died in the present county of Albany in 1663. The will was also put in evidence by which the testatrix declared her children and descendants, naming them, “her sole and universal heirs,” “and to them gave and bequeathed ” all her real estate, chattels, credits, money, gold and silver coined and uncoined, jewels, clothes, linen, woolen, household furniture, and all property whatsoever, without reserve or restriction of any kind, to be disposed of' after her decease, and divided by them in equal shares, to do with the same their own will and pleasure, without any hindrance whatsoever; but with a reservation and reservations (1) that her first four born children should have 1,000 guilders,” to be paid them out of the proceeds of a certain farm situated on Manhattan Island ; ” (2) that Jan Itodofson should have “a bed and milch cow;” (3) that Jonas and Peter Bogardus should have a house and lot, “ therein described, with a bed and milch cow each ; ” (4) and that five persons (named) should have each a silver mug ; all of which donations were to be provided for out of the first moneys received ; and afterwards the remainder of the property to be divided and shared as aforesaid.”

The appellant also put in evidence the confirmation of a grant of about sixty-two acres, situated on the island of Manhattan, to “ the children and heirs ” of the deceased “in their possession and enjoyment,” for which (as was recited therein) said Anneke liad theretofore a patent “from the late Dutch Govenor, Peter Stuyvesant.” The patent was dated July 4, 1654, and the confirmation to the children and heirs of the deceased bore date March 27, 1667. The appellant also put in evidence the confirmation of a grant of about 130 acres to the same “ children and heirs,” and “in their possession and enjoyment,” situated near “Mespats mills ; ” for which (as was recited therein) said Anneke had theretofore a patent. The patent bore date November 26, 1652, and the confirmation March 27, 1667. The appellant also put in evidence a like confirmation of a patent to the same “ ye heirs of ye said Annetie Bogardus, deceased, in their possession ” of a lot near Fort Albany •— the patent, as recited therein, bore date April 23, 1652, and the confirmation July 10, 1667. The appellant also put in evidence a grant of a lot “in the village of Beverwyck” from Annetien Bogardus to David Pocterson Schuyler, dated December 22, 1660. The appellant also read in evidence a bill of sale (so called) of a lot of land from the children and heirs-at-law of said Annetins Bogardus to Dirk Wesselse, dated June 21, 1663, which lot was described as their deceased mother’s house and lot, # * * the same that-she occupied to the clay of her death.” This paper seems to have been executed in duplicate, and the respondent put the counterpart of it in evidence. The respondent also put in evidence the grant from said children and heirs to said Dirk Wesselse of the lot described in said bill of sale (so called), made pursuant thereto ; Avhich grant bears date July 17, 27, 1667. The appellant also put in evidence a grant of a lot situated in Albany, theretofore known as Beverwyck, from David Peterson Schuyler to Wouter Albertson, Vandor Wythoff, dated September 1, 1665, in which it was recited that the premises came to the grantor through or under Annetie Bogardus. The appellant also examined, as a witness, orally, Harriet J. Van Natten, who testified that her ancestors on her mother’s side were Bogardus, that a family Bible and some small rings came to her mother by her ancestors; that she had the rings which her mother told her came to her from her grandmother; that her mother, who died at an advanced age, told her that the ear-rings came down from the Bogardus family, and that the Bible came the same way ; that the Bible was handed down from Peter Bogardus, who was a son of Anneke Jantz Bogardus ; and that her mother said the Bible was once owned by Anneke, deceased. The Bible and ear-rings were produced by the witness in court; and the Bible was shown to be worth from fifteen to twenty dollars.

The foregoing is substantially a statement of the proceedings before the surrogate who, thereupon, denied the appellant’s application for letters of administration with the will annexed.

I have been particular, and perhaps unnecessarily minute, in detailing the proceedings had before the surrogate, for the purpose of determining precisely how and to what extent the appellant made and established his case. Just what the proof was before the surrogate must be understood, for it is seen that the appellant was put to the proof, on the hearing before that officer, of every material fact giving him standing to demand letters. Usually the facts stated in the sworn petition are to be accepted as sufficient. This is so when those cited fail to appear, and when there is no appearance and no denial of the facts so stated by any one interested in the estate of the deceased. Hero, however, there was an appearance by a party (for anything that appeal’s to the contrary) having an interest in the estate, and holding at least equal rights with those of the appellant. lie might, therefore» put the latter, as he did do, to full proof of all the material facts necessary to be established before the surrogate to entitle him to letters. Such was the position of the parties that, as against the respondent here, the contestant before the surrogate, the appellant was required to fully establish his case. On the record his petition stood wholly denied, and nothing was admitted on the hearing or trial except the death of the decedent at Albany, in 1G(J3. As to the contestant then, did the appellant establish the fact that ho was a lineal descendant, heir-at-law and.next of kin of the deceased ? He so averred in his petition ; but the contestant put this at issue, and there is no proof, outside of the petition, of the alleged fact As against the contestant then this averment of fact was and is unproved.

(2.) While it is alleged and proved that the decedent died in the county of Albany, it is not averred that she was an inhabitant of that county at or immediately preceding her death. The grant to Dirk Wesselse, in describing the lot granted, speaks of it as the same the decedent occupied to the day of her death ; and her will speaks of her as residing in the village of Beverwyck. That she was an inhabitant of Beverwyck at or immediately preceding her decease might, perhaps, be inferred from those recitals, if the recitals were competent evidence of the facts recited. But the fact that the decedent was an inhabitant of the county, if necessary to the plaintiff’s case, should have been ■ alleged in the petition. In a case like this, when proceedings are instituted centuries after the occurrences which they are intended to revive, with a view to the disturbance of rights of property, long supposed to have been settled, it should be required that all formalities bo fully complied with, and the party seeking such disturbance should be held to the strictest rules and requirements of the law. In strictness, the recitals referred to' wore not evidence of the facts recited ; and in strictness the petition should have contained a statement that the decedent was an inhabitant of Bevei-wyck, in the present county of Albany, at or immediately preceding her death. But it is insisted that the decedent, if not an inhabitant of Beverwyck at the time of her decease, died there, leaving assets therein. But, to authorize the issuing of letters in such case, it should be made to appear that the deceased Was a non-inhabitant of the State at the time of the death. The statute is, that letters may be granted when the decedent, not being an inhabitant of the State, shall die in the county, leaving assets therein. The appellant’s application was unsupported in this respect.

(3.) Nor is it made to appear, as it should be with entire certainty in this case, that the decedent died leaving assets to be administered and yet to be administered upon. The evidence submitted tends strongly to the conclusion that the provisions of the will were fully complied with and carried into effect immediately following the death of the decedent, by the parties in interest in the property. Certainly, there seems to have been a practical observance of its terms and requirements. From the great lapse of time since the death of the party it must be presumed that the first four bom children of the deceased received the, thousand guilders given them; and if further presumption be necessary to the case, then also that it was paid them out of the proceeds of the Manhattan farm. Those proceeds may have been obtained either from its use or from a sale. There is nothing to indicate that its use -would not have produced very speedily the thousand guilders, or that it was not intended that this sum should come from its use. A sale was not directed in the will. But, if the thousand guilders were not paid as directed, the claim therefor was long since gone from lapse of time. The same may be said of the cows and beds, and mugs given to the parties named in the will. These donations being out of the way, or, in the language of the will, “ provided for,” the remainder of the property passed directly and absolutely to the legatees and devisees, for them “to do with the same their-own will and pleasure, without any hinderance whatsoever.” It seems that they did settle and arrange matters to a considerable extent. They accepted confirmations of grants jointly, and proceeded to make grants themselves of the property devised; and, as appears from the grant to Dirk Wesselse, they received from him for the grant 1,000 guilders, being a sum quite sufficient from this source to answer for the cows, beds and silver mugs. There is nothing indicating that the legatees and devisees did not fully and completely administer the estate according to the provisions of the will. That they did so is the fair presumption, as well from the facts proved, as also from the great lapse of time since the devises and bequests took effect. It is urged that there is some property yet remaining to be administered under the will, to wit: The Bible and ear-rings. But, in this respect, the proof wholly fails. There is no sufficient proof that either of these articles were ever the property of the decedent. The statement of the witness’ mother that the Bible was once owned by the deceased does not prove the fact. This was but hearsay ; but, even if it be admitted that the Bible and ear-rings once belonged to the deceased, then there is no proof that they belonged to her at the time of her death. Besides, non constat, but that they came down to the present holder of them from the legatee in the will. As above stated, there is a strong presumption in favor of the assertion that there was a full and complete settlement and division between the devisees and legatees of tbe property disposed of by tbe will, grow-big out of tbe great lapse of time since that instrument took effect. Tbis presumption is strengthened by tbe fact that these parties, immediately after tbe decedent's death, are ¡moved to have taken possession of tbe property and adjusted their rights in regard to it. There is nothing to countervail tbis presumption. From these circumstances it should be now held, in the absence of all proof negativing the conclusion, that the estate of the decedent has long since been fully administered and settled satisfactorily to the beneficiaries named in the will, or to those immediately succeeding them in interest. The decree of the surrogate must be affirmed, with costs.

BoardjiaN, J., concurred.

LeaRNed, P. J.:

I concur in the foregoing opinion of my brother Bocees.

Part of the appellant’s argument rests on the allegation that no letters testamentary, or of administration, are shown ever to have been issued. The appellant overlooks the fact that, at the time of the execution of the will and of the death of the testatrix, the law prevailing was the civil law, as modified by the laws and usages of Holland. (Daly’s Hist. Sketch [1 E. D. Smith], XVIlv XXVI.) By the civil law the execution of the will belonged to the instituted heir ; using that word with its civil law, and not its common law meaning. The person instituted heir (which is the very expression used in this will), succeeded to all the rights and (originally) to all the liabilities of the deceased. It was his duty to pay the legacies and discharge the debts. There was no executor in the meaning of that word in English law. (Inst., b. 2, tit. 19, 20; Domut Civil Law, tit. 1, §§ 1, 8.) Even if the heir took the bene-ficium inveniorii, so as to avoid liability bejmnd what he received, still he was not like an executor who discharges a mere trust without any beneficial interest. (Inst., 2, 19, 6.) Or, to state the matter in another way, just as laud now passes to the common-law heir, or to the devisee, without the intervention of an executor ; so all property passed to the heir of the civil law; and there was no executor. (Vanderlmden Inst., 150, et seq.)

The appellant also argues that, by the terms of the will, it is to be considered a will of personal property; so far as was necessary to pay off legacies. And he cites some decisions on the familiar doctrine of English law as to the conversion of real into personal property. Here, too, the appellant overlooks the fact that that doctrine is one peculiar to English law, and one which arises from the different rules and different rights applied in English law to real and to personal property. No such difference was known to the law, as it existed here, when this will took effect. The rights of succession were the same as to movables and as to immovables. The heir took one class just in the same way in which he took the other. No such doctrine of the conversion of immovables into movables could have had any meaning at that time. It has arisen in English law, because the rules of descent as to immovables, of real property, have partly had a feudal origin.' While the rules of distribution of movables, or personal property,1 have come from another source, and arc sometimes different. Where there was no difference in the succession to, or in the manner of dealing with the two kinds of property, there could be no need of, or sense in, the imaginary conversion of one into the other.

Decree of surrogate affirmed, with costs against appellant. .


author: Bocees, J. : LearNED, P. J.,

text:
    THERON E. BISSELL, Appellant, v. JAMES K. HARRINGTON AND HARVEY MAPLES, Assignees, etc., of FREDERICK H. BISSELL AND EDWIN A. BISSELL, Respondents, Impleaded with Others.

      Partnership to speculate in real estate — valid though the agreement he only a vei'hal one.

    The plaintiff entered into a verbal agreement with his co-partners, Frederick H. and Edwin A. Bissell, by which they agreed to purchase a farm for their joint benefit, each to pay one-third of the price, the title to be taken in the name of Frederick H., the farm to be sold in parcels, the money received on the sale to be applied on the pnrchase-price of the farm, and each to be entitled to one-third of the surplus, if any, or of the land remaining unsold. This agreement was carried into effect, and thereafter another lot was purchased and the title taken in the name of Frederick H., and a 'building- was put thereon with a portion of the in-oceeds of the sales. There was no express agreement, either verbal or otherwise, on the part of Frederick H., to convey any part of the farm, or of the lot to his co-partners, or either of them.
    ■ Subsequently the partnership between the parties was dissolved, the plaintiff Theron E. Bissell verbally retaining Ms interest in the real estate. Frederick H. and Edwin A., having made a general assignment, the plaintiff brought this action to compel the assignee to convey to him an equal undivided third part of the land.

      Held, that the arrangement was in effect a partnership agreement to speculate in real estate.
    That as such it was valid, though not reduced to writing.
    That plaintiff was entitled to judgment.
    Appeal from a judgment in favor of tbe defendants, entered upon tbe report of a referee.
    A short time prior to the 6th day of March, 1860, the plaintiff and his co-partners, Frederick H. Bissell and Edwin A. Bissell, entered into a verbal agreement with each other, whereby they agreed together that they would purchase a certain farm of about 190 acres of land, known as the Grover farm, for their joint account and benefit, and as between themselves that each should pay towards such purchase-price, the one-third part of so much thereof as should not he realized by the sales which were then contemplated, of parcels of said farm ; and it was at the same time verbally agreed by them that they should sell the said farm off in parcels, and apply the amount received on such sales to the payment of the purchase-price of said farm, until such purchase-price should all be paid, if enough should he so realized, and if a sufficient amount should not be so realized, then that each of said parties should pay-one-third of such deficiency, and if there should he a surplus so realized, each should have one-third thereof, or if a portion of such land remained unsold after the payment of such purchase-price, each of said parties to have the one-third thereof; and it was further verbally agreed-that the conveyance should be taken in the name of Frederick H. Bissell alone, for the convenience of selling the same. In pursuance of such verbal agreement said Frederick H. Bissell purchased the said farm and sold portions thereof, applying the proceeds upon the purchase-price, the balance of which was paid by each party contributing one-third thereof. One parcel of the farm was sold to one Benjamin Downing, and the consideration or purchase-price thei’eof was a building lot, which was conveyed to the said Frederick H. Bissell, and a building was subsequently erected thereon with the partnership funds ; after the sale of said parcels of the original farm, and after the building of the said dwelling-house, the plaintiff dissolved his co-partnership with the said Edwin A. and Frederick H. Bissell in the mercantile business, but verbally retaining his interest in the said real estate ; subsequently the said Federick H. and Edwin A. Bissell made an assignment of all their real and personal property to the defendants James K. Harrington and Harvey Maples, for the benefit of their creditors, which assignment was duly filed and recorded; in their schedule of assets, under such assignment, the said Frederick H. Bissell and Edwin A. Bissell only inventoried and claimed to own, each an undivided third part of the said real estate. There never was any express agreement, verbal or otherwise, on the part of Federick H. Bissell, to convey any part of said Grover farm or of said house and lot to the plaintiff.
    This action was brought to compel the assignee to execute a conveyance of an equal undivided third part of the said real estate to the plaintiff.

      Samuel A.. Bowen, for the appellant.

      Lynes & Van Horn, for the respondents.
   Bocees, J. :

If this case, on the facts, is brought within the statute of frauds, or of uses and trusts, the conclusion of the learned referee is unquestionably sound. The arrangement between the Bissells for the purchase and disposition of the Grover farm was by parol. There was no writing evidencing the agreement or understanding between them. If, therefore, the case falls within any of the provisions of those statutes, the agreement was inoperative and void, and the plaintiff consequently had no rights to be enforced under it. But did not the arrangement amount to a partnership agreement in regard to the farm and its avails ? It was decided in Chester v. Dickerson (54 N. Y., 1), (1) that a partnership may exist between dealers and speculators in real estate for the purpose of buying and selling lands ; and (2) that it was not necessary to tbe existence of the partnership that it be evidenced by a written agreement signed by tbe partners, but that sucb partnership might be created by a parol. It was urged in the case cited that a parol agreement for such a partnership would be within the statute of fraud, but the Court of Appeals held otherwise. One ground suggested in the latter court, and on which its judgment proceeded, was that the real estate was to be treated and administered as personal property for all the purposes of the partnership ; and another was, that in point of fact, no estate or interest in land was created, granted, assigned or declared by the agreement itself. The question is fully examined by Judge Eakl in the case cited, both on principle and authority, and the decision there announced is reiterated in Traphagen v. Burt (67 N. Y., 30, 33), where it is said that “ it is established by abundant authority in this State that a partnership may exist in reference to the purchase, sale and ownership of lands, and that it may be created by a parol agreement.” This being so, let us see what the arrangement was between the Bissells, under which the Grover farm was purchased, held, and mostly disposed of. The agreement was this : that they would purchase the farm “for their joint account and benefit; ” that each should pay, or be responsible as between themselves for one-third part of the purchase-price ; that the farm should be sold oif in parcels (sales of pieces thereof to several parties being then in contemplation) ; that the avails of sales should be applied to the payment of the purchase-price until the purchase-price should be fully paid, if enough should be realized therefrom ; that if there should be a surplus so realized each should have one-third, or if a portion of the farm should remain unsold after the payment of the purchase-price, each should have one-third thereof; and that for the sake of convenience in giving title to purchasers the conveyance should be taken in the name of Frederick II. Bissell alone. This arrangement was in substance and effect a partnership agreement by parol for “ the purchase, sale and ownership of lands ” declared in the cases cited not to be within the statute of frauds and binding on the parties, the same in all respects as if it had been in writing and signed by them. The purpose the parties had in view in making the purchase was one of speculation. The farm was not bought for their personal use and occupation, but for the purpose of cutting it up and making a profit to themselves out of its sale in parcels. They bound themselves to the results of profit and loss in the transaction. We may bore adopt the language of Judge Earl in Chester v. Dickerson (sujjrci) with such trilling change as are necessary to give it adaptation to this case: “ When the agreement was made no lands were owned by the parties, and neither attempted to convey or assign any to the other. The contract was a valid one, and in pursuance of it they wont on and made the purchase, made improvements and also sales. While they were doing this, did they not act as partners and bear a partnership relation ? ” The learned judge adds, “the statute is not so broad as to prevent proof by parol of an interest in lauds; it is simply aimed at the creation or conveyance of an estate in lands without a writing.” It is only necessary to say, in conclusion, on this point, that here was a partnership between the Bissells' for the purchases, sale and ownership of lands, valid and binding upon the parties to it, although the agreement of partnership rested in parol. But it is said that the referee has found that the purchase of the farm was not a partnership transaction, and it is urged that this finding is conclusive of the fact stated, as no case is made setting forth the evidence on which the finding is based. The answer to this suggestion is (1) that the finding is excepted to ; and (2) that the referee has certified the agreement in the record, from which it appears that his conclusion on that point is erroneous, if so construed; the referee, however, probably only intended to find that the purchase was not connected with the partnership transactions of F. H. Bissell & Sons, who were conducting a mercantile partnership under that firm name. The 'finding given in full is this : That the purchase “ was not a partnership transaction, but was a purchase outside of, and not a part of, or connected with the business firm of E. II. Bissell & Sons.” What the referee intended here to be understood, doubtless, was to the effect stated in the last paragraph of the finding, aud in this view there is nothing to indicate that the finding is erroneous.

There is another view of this case favorable to plaintiff’s claim. Here was a contract between the Bissells i:>arty performed, indeed fully performed, in all its essential particulars, save recognizing, by conveyance or otherwise, the plaintiff’s rights in the lands in controversy. As was said in Traphagen v. Burt (above cited), upon facts somewhat similar to those here certified to the court, “it is difficult to see why the rule of law, applicable to an executed agreement, does not apply.” We are of the opinion that the plaintiff established, under the facts certified in the record, an equitable right to an undivided third of the forty-five acres, and also a like interest in the Downing premises. He was entitled to the judgment of this court declaring his right and interest therein to that extent. Iiis rights might bo made effectual to him by decreeing the execution and delivery of a conveyance of his undivided third, or else by directing a sale by the assignees of Frederick H. Bissell, or by a receiver appointed for that purpose, and a division of the avails of sale, by which the plaintiff’ would obtain his one-third thereof. These conclusions lead to a reversal of the judgment appealed from.

Boardjian, J., concurred.

LearNED, P. J.,

dissenting :

The plaintiff, and Frederick II. Bissell and Edwin A. Bissell, then co-partners, entered into a verbal agreement for the purchase of a farm, in the name of Frederick ll. Bissell only. The farm was purchased and the title taken in his name by their mutual agreement. Part of the farm was sold, and the avails were applied on the purchase-price. The balance of the purchase-price was paid by these three persons, each paying one-third. Part of the farm was exchanged for a building lot, and the title to the lot was, by verbal agreement, taken in the name of Frederick II. Bissell only. With partnership moneys the parties built a house on this lot. Subsequently the plaintiff dissolved his partnership with the other two partners. lie verbally retained his interest in the house and lot, and in the unsold part of the farm. There was never any agreement, verbal or otherwise, on the part of Frederick II. Bissell, to convey to the plaintiff any part of the farm or of the house and lot.

The plaintiff relies very much on two cases. Chester v. Dickerson (54 N. Y., 1) was a case based on alleged fraud'in regard to the purchasing of land. As the court say, it was “ not a controversy about the title to any of the lands taken, or owned, by the partners, but it simply relates to the conduct of the defendants while they were acting as partners.” The most that can be said is that the learned commissioner was inclined to think that the doctrine, on which the present plaintiff relies, was founded on the best reason and the most authority.

Traphagen v. Burt (67 N. Y., 30) was an action to establish the right of the plaintiff to an undivided interest in land where the plaintiff and defendant had jointly purchased, and the defendant, ivithout knowledge of the plaintiff, had procured the deed to be taken to himself. That case is provided for in 1 R. S. (m. p.), 728, §§ 52 and 53. The defendant had committed a fraud.

But in the present case there was no fraud. By the agreement of the parties, the title was intentionally taken in the name of Frederick H. Bissell. If, by such an agreement, he could hold the title, and the others could have estates in their portions, then it would follow that, by a similar agreement, he might hold the legal title, and others have the whole beneficial estate.

Carr v. Carr (52 N. Y., 251) is but the affirmance of the well-known doctrine that a deed absolute on its face may be shown, by parol, to be a mortgage.

The language of the statute is very broad. “ No estate, or interest in lands # # # shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed,” etc. One cannot, then (as these parties attempted to do), create or declare an interest in land by parol. A declaration of trust must be in writing. (Section 7, amended by Laws 1860, chap. 322; Wheeler v. Reynolds, 66 N. Y., 227.)

No question arises here as to the creditors of a partnership, or as to their right to follow partnership money invested in land. Nor is there any question as to a settlement of a partnership business; for the partnership had been dissolved. Nothing remained but a verbal agreement that the plaintiff should have one-third undivided interest in land, of which the legal title was in Frederick H. Bissell.

And the question must be whether the court can enforce, as a title to land, a mere verbal agreement for an undivided third thereof. If it can, then it could enforce a vei’bal agreement for the whole.

• I think the judgement should be affirmed, with costs.

Judgment reversed; new trial granted; reference discharged; costs to abide event.


author: Bocees, J. : BoardmaN, J. LEARNED, P. J.,

text:
    GEORGE DOUGLASS, Appellant, v. FRANK E. WELLS, Respondent, Impleaded with GEORGE H. WELLS and others.

      Assumption of mortgage by a grantee — the grantor cannot release the liability created by.

    Where the grantee, hi an absolute conveyance of land, assumes and agrees to pay a mortgage thereon, given by his grantor, an absolute and irrevocable obligation is thereby created in favor of the mortgagee, which cannot be released or affected by any act or agreement of the mortgagor (and grantor), to which the mortgagee does not assent. (Learned, P. J., dissenting.)

      Stephens v. Casbacher (8 Hun, 116), overruled, and Crowell v. Hospital of St. Barnabas (27 N. J. Eq., 650), disapproved.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed by the plaintiff to the answer of the defendant Frank E. Wells.
    The action was commenced in February, 1878, to foreclose a mortgage, dated December 1, 1871, and to recover a judgment for any deficiency that might arise upon a sale. The bond and mortgage upon which the action was brought was executed by Charlotte E. Wells, George H. "Wells and Eoger G. Wells.
    The complaint alleges that on the 18th day of December, 1872, Eoger Wells convoyed his interest in the-mortgaged premises, subject to the liens thereon, to Charlotte E. and George H. Wells, who assumed and agreed to pay the plaintiff’s mortgage ; that on the 31st day of January, 1876, George H. Wells and wife duly conveyed all their interest in the premises to said Charlotte E. Wells, and the defendant Frank E. Wells, they assuming all liabilities on the property, including the bond and mortgage to the plaintiff, and demanded judgment for any deficiency against the defendant Frank E. Wells.
    The defendant, Frank E. Wells, in his answer, alleged: That on the 7th day of June, 1877, he executed to the said George H. Wells a deed of the land, for a good and valuable consideration, which deed was accepted by said George H. Wells, who retook possession of the premises under the same, and which contained a covenant on the part of the said George H. Wells, as follows: “The party of the second part, by the acceptance of this d'ced, assumes and agrees to pay all mortgage debts upon the property above described, and releases and discharges the said party of the first part, of and from all liability to pay the said mortgages, or any part thereof, on account of the acceptance by him of a deed of the said lands, dated January 31, 1876, executed by the said party of the second part to the said party of the first part, and recorded,” etc.
    The plaintiff demurred on the ground that the answer did not state facts sufficient to constitute a defence.
    The demurrer was overruled, and the plaintiff appealed.

      O. H. Curtis, for the appellant.
    Where the owner of, land mortgages it to secure a debt, and subsequently conveys it subject to the lien of the mortgage, and the grantee assumes the payment thereof, the latter becomes personally liable for the payment of the debt to the holder of the mortgage. (Russell v. Pistor, 7 N. Y., 173; Trotter v. Hughs, 12 id., 74; Lawrence v. Fox, 20 id., 268; Belmont v. Coman, 22 id., 439; Hartleys. Harrison, 24 id., 170; Burr v. Burr, 24 id., 178; Pichará v. Sanderson, 41 id., 179; Thorp v. Keohuc Coal Co., 48 id., 253; Vroman v. Turner, 69 id., 280; Comstock v. Drohan, 71 id., 9; 40 id., 432; 7 W. D., 419, Ct. of Appeals ; 2 T. & C., 591; 3 Brad., 386.) The recon-veyance by the defendant Frank E. Wells to George II. Wells, and the release by the latter of the former from his liability to pay the mortgage debt by reason of his assumption and promise in the conveyance to him, will not discharge him from his personal liability to pay the same to the plaintiff. (Marsh v. Pike, 10 Paige, 545; Whiting v. Cearty, 14 Hun, 498; Weekly Digest [vol. 7], p. 97; Stephens v. Casbacker, 8 Hun, 116; Simson v. Brown, 6 id., 261; reversed, 68 N. Y., 355; Campbell v. Smith, 71 N. Y., 26; Bike v. Seiter, 15 Hun, 402; Guernsey v. Rogers, 47 N. Y., 242 ; Campbell v. Smith, 71 id., 26; Str. Eq., § 1036 a, and note 2; 4 Mason, 214, 215; 7 Whea., 556; 11 id., 78; 25 N. Y., 239; Atkin v. Bawiplc, 1 Str., 165; Berley v. Taylor, 5 Hill, 577; Brewer v. Dyer, 7 Cush., 337; Fox v. Lawrence, 20 N. Y., 274; id., 397; 23 Wend., 490, 496; 1 Sold., 537; 18 N. Y., 546; 24 id., 130.)

      R. A. Stanton, for the respondent.
    George H. Wells had authority to release Frank, without the consent of the plaintiff. (Stephens v. Casbacker, 8 Hun, 116; Whiting v. Gearty, 7 N. Y. W. Dig., 97; Kelly v. Roberts, 40 N. Y., 432; CrowellY. Hospital of St. Barnabas, 27 N. J. Eq. K.., 650; AEtna National Bank v. Fourth National Bank, 46 N. Y., 89; Moore v. Ryder, 65 id., 442; Manson v. Bartholomew, 19 A. L. J., 52; Durham v. Bishof 47 Inch, 211.)
   Bocees, J. :

This proposition is not disputed: that Frank E. Wells, on accepting the conveyance of the mortgage premises from George H. Wells and wife, wherein the former expressly assumed the payment of the bond and mortgage in suit, became, as between himself and George, primarily liable for the mortgage debt; and, further, that the holder of the claim (the mortgagee) might enforce such liability by personal judgment against him. But it is insisted that it was competent for George to discharge such personal liability against Frank, without the assent of the mortgagee, at any time before the latter had taken any step in his own behalf for its enforcement. The court so held at Special Term, and gave judgment for the defendant on the demurrer to the answer, wherein a release by George to Frank was set up as a defence to the claim by the mortgagee of personal liability against the latter. The ruling at Special Term is supported by the decision in Stephens v. Casbacker (15 N. Y. Sup. Ct. [8 Hun], 116). In that case, as in the case in hand, the grantee had reconveyed to his grantor, and the latter had released the former from his agreement to pay the mortgage debt, and bad gone into possession under the deed of reconveyance, before the mortgagee commenced his action, in which he sought to charge the party personally on his agreement. The court held that the release was effectual as a discharge against the claim of the mortgagee. The learned judge says : “ While the defendant remained in possession of the premises, and the covenant remained as between the parties in full force, unrevoked or unrescinded, the plaintiff might doubtless have maintained an action upon it, or held the defendant responsible for any deficiency upon a foreclosure of the mortgage;” and he adds, “but I can see no ground or reason in principle why, during such period, the grantor might not release the defendant (his grantee) from a personal obligation involved in such covenant, leaving the land simply subject to the mortgage, as ho might originally have conveyed the same.” This case, however, stands, as it is believed, alone in support of the doctrine advanced in it, among the reported decisions in this State. There is a class of cases which, as is urged by the respondent’s counsel, gives countenance and support to Stephens v. Oasbaclcer; as for instance Kelly v. Roberts (40 N. Y., 432); Whiting v. Gearty (7 W. Nig., 97); Moore v. Ryder (65 N. Y., 438, 442); Dunham v. Bischoff (47 Ind., 211); Day v. Patterson (18 Ind., 117); Mansur v. Bartholomew (19 Alb. L. J. [Ind. case], 52); Ætna Nat. Bank v. Fourth Nat. Bk. (46 N. Y., 82, 92); Simson v. Brown (68 id. 355, 361); Vrooman v. Turner (69 id., 280); Trotter v. Hughes (12 id., 74); King v. Whitley, 10 Paige, 465). But the decisions in those cases were mostly placed upon the ground of a want of privity between the promissor and the third party, for whose benefit the promise is made, although privity of contract between the latter and the promisor is not as it seems always necessary to the right of action on the undertaking; so be it, that a legal obligation or duty rests upon the promisee to the party to be benefited by it. (Remarks of Allen, J., in Vrooman v. Turner, 69 N. Y., on page 284.) But to return to the case of Stephens v. Casbacker. It is believed that the decision in this case is hostile to many others in this State, and cannot be upheld as sound. But, before calling attention to those cases, it may be well to give a passing notice to a remark contained in Whiting v. Gearty (7 Wk. Dig., 97), above cited. It was said in the very brief report of that case now before us, and upon the strength of the decision in Kelly v. Roberts (40 N. Y., 432), that, “ in the absence of notice to the mortgagee, of the assumption of the mortgage by a grantee, or in the absence of an acceptance by the mortgagee of such assumption, it has been held that the grantee may be released by the mortgagor.” But on recurring to Kelly v. Roberts, it will be seen that this question was not before the court in that case. Nor does it indeed give support to the remark in Whiting v. Gearty. Kelly v. Roberts was decided upon an entirely different principle, to wit : On the grounds that there was no privity of contract between the promisor and the third party, nor any privity to the consideration; that the plaintiff was an utter stranger to .the contract, having no right or interest in the subject-matter of it. The remark above cited in Whiting v. Gearty is unsupported by the decision in Kelly v. Roberts, besides, the remark was obiter; for all that was necessary to the decision in Whiting v. Gearty ivas the proposition that after notice to. the mortgagee, and acceptance by him of the assumption by the grantee, a valid release could only come from the former, upon the principle that a release, to be effectual, must come from the person vested with the right. All else that was said or that was attempted to be decided in that case was entirely obiter, as that case was presented on the facts. We may then, in the further examination of this case, commence with Lawrence v. Fox (20 N. Y., 268), where it was held, in general terms, that an action would lie on a promise made by the defendant, upon valid considerations, to a third person, for the benefit of a plaintiff, although the plaintiff was not privy to the consideration. The question whether the original promisee could have released the promissor from the obligation was not in the case except'argumentatively But Judge Gray, in whoso opinion five of his associates concurred, said in substance that he thought it would be difficult to maintain the right of the original promisee to discharge the obligation of the promissor to the third party for whose benefit it was made, and who, in accordance with legal presumption, would be deemed to have accepted it until his dissent was shown. Next in order in the Court of Appeals is Hartley v. Harrison (24 N. Y., 170), where it was held that when land is conveyed subject to a usurious mortgage, which the grantee assumes to pay, the mortgagee acquires a right to an appropriation of the land for that purpose, which cannot be divested without his assent. Here then was a release of the covenants and agreement contained in the deed by the grantor to the grantee, executed, however, after the mortgage foreclosure suit was commenced. The release was held imperative to open the defence of usury to the grantee. But the question, whether the personal liability assumed by the grantee was or was not discharged by the release of his grantor, was not passed upon by the court. Judge MasoN, in his opinion, however, spoke very emphatically on this subject. He said the grantee’s liability to the mortgagee was fixed the moment he received the conveyance, and it was not in the power of the grantor to release him from it; that the liability when once created was irrevocable. The case of Burr v. Beers (24 N. Y., 178) was decided upon the principle settled in Lawrence v. Fox; and nothing was there said upon the subject here under examination. The same may also be said of Ricard v. Sanderson (41 N. Y., 179). We are now brought to the case of Garnsey v. Rogers (47 N. Y., 233), where this entire subject was elaborately discussed. It was there said by Judge Batallo (although this point was not decided), and with the apparent concurrence of every member of the court, and as a notable proposition in the consideration of the caso, that, “ it must further he considered, that, where such an assumption (the same as in the case in hand) is made on an absolute conveyance of land ” (which is this case), “it is unconditional and irrevocable. The grantor cannot retract his conveyance or the grantee his promise or undertaking” (page 242). The case of Thorp v. Keokuk Coal Co. (48 N. Y., 253) simply recognized and applied the decision in Lawrence v. Fox and in Burr v. Beers; although Judge Earl incidentally remarks, that 1 ‘ when the third person adopts the act of the promisee in obtaining the promise for his benefit, he is brought into privity with the promissor, and he may enforce the promise, as if it was made directly to him.” The case of Vrooman v. Turner (69 N. Y., 280) was distinguished from Lawrence v. Fox; and the denial of the right in that case to enforce the agreement by the mortgagee against the grantee was put upon the ground that the former had no legal interest in the performance of the agreement. Nor has Comstock v. Drohan (71 N. Y., 9) any direct bearing upon the question under examination. The reasoning of Judge Church, in Campbell v. Smith (71 N. Y., 26) is, however, significant. The learned judge adopts substantially the remarks of Judge Rapadlo, above cited and quoted. He says “the former” (the grantor) conveyed absolutely all her interest in the premises,” and the grantee having accepted the conveyance 11 occupied the position of purchaser. As between them the relation of grantor and grantee existed, with all the rights and obligations incident to that position. The covenant to pay the mortgage was absolute, and the mortgagee had the right to enforce it.” We are also cited to Pike v. Seiter (22 N. Y. Sup. Ct.; 15 Hun, 402); Calvo v. Davies (15 N. Y. Sup. Ct.; 8 Hun, 222), affirmed in the Court of Appeals April 2, 1878, and Thayer v. Marsh (11 Hun, 501, affirmed in Court of Appeals December 8, 1878). But these cases have no direct bearing on the question as to the effect of a release by the grantor to the grantee. The cases seem to settle down upon this : That where the conveyance is absolute to the grantee his assumption therein of the payment of the mortgage debt, resting as a lien on the promises convoyed to him, creates against him an absolute obligation for its payment. The mortgagee is at once vested with a right to hold him upon his assumption of the debt. Now, no principle is clearer or better settled than this, that a release, to be effectual, must come from the party vested with the right. But it is urged that the right is not vested until there is an acceptance of the obligation. But in such case an acceptance is a legal presumption, in the absence of proof of actual dissent. (Lawrence v. Fox, per Gray, J., 20 N. Y., 274; Berly v. Taylor, 5 Hill, 584-585.) It seems to follow, giving due application of the decisions to the case in hand, that the plaintiff, so soon as Prank E. Wells accepted the deed of the mortgaged premises and assumed the payment of the mortgage debt, had an absolute vested right to the enforcement of such obligation. I am not unmindful of the decision in Crowell v. Hospital of St. Barnabas (27 N. J. Eq., 650) adverse to this conclusion; but that decision is in hostility to those of our own State above cited. It does not recognize the principle settled in Lawrence v. Fox, Burr v. Beers, and in the many cases following them, that the mortgagee may enforce the agreement made between the grantor and the grantee, whereby the latter assumed the payment of the mortgage debt. It is there maintained that the contract is with the grantor simply for his indemnity ; not a contract with the mortgagee for his security ; that the latter is not in privity wdth the grantee, either in respect to the contract or to the estate granted. So it was there determined, contrary to the rule in our own State, that the agreement, although operative between the parties to it, does not make the mortgage debt a personal debt of the grantee to the mortgagee. Under this ruling it would follow, of course, that the grantor could release and discharge the grantee from personal liability, and that too as well after as before suit for foreclosure was commenced, which result is expressly repudiated in Whiting v. Gearty by the Court of Appeals. The decision in Crowell v. Hospital of St. Barnabas is not in consonance with those of our own State since Lawrence v. Fox and Burr v. Beers were considered and determined. It is somewhat perplexing to determine precisely the ground on which the rule now established in our own State is made to rest, whether on the ground that the assuming of the mortgage debt by the grantee creates a ¡M’ivity of contract between him and the mortgagee, or makes the latter privy to the consideration of the promise, or that the right of action in the mortgagee springs simply from the promise of the grantee made to the grantor for the mortgagee’s benefit. Whatever may be the ground of the ruling it is now firmly and definitely settled in the courts of this State, that the promise of the grantee, in a case like this under consideration, may be adopted and enforced by the mortgagee as a personal obligation of the former to the latter. In this case, according to the decisions, the liability of Uranic E. Wells to the plaintiff was absolute on his acceptance of the deed from his grantor, George II. Wells, wherein he assumed the payment of the mortgage debt. The plaintiff then acquired a vested right to the enforcement of this liability. This right could not be. taken from him without his assent. He alone might discharge it. So Judge Rapadlo gave utterance to the law when he said, as above quoted, that the obligation was “ unconditional and ii-revocable ; that the grantor could not retract his conveyance, nor the grantee his promise or undertaking.” Of course, this ruling is limited to those cases (like this in hand) where the grant is absolute and the promise unconditional. It follows that the decision at Special Term was erroneous. Judgment on the demurrer granted at Special Term reversed, and judgment thereon ordered for the plaintiff, with costs.

BoardmaN, J.

I concur in this opinion, as a necessity from the authorities in this State.

LEARNED, P. J.,

dissenting:

It seems to me that there are two classes of cases, which have sometimes been confused, but which are really different in princi pie. One class embraces such cases as that of Lawrence v. Fox (20 N. Y., 268). In that case, Holly, owing Lawrence $300, lent Fox that amount, telling him of this debt to Lawrence, paya ble the next day; and Fox agreed to pay Lawrence this sum Holly, therefore, intending to benefit Lawrence, put the means of payment into the hands of Fox. Fox might well be liable, as in; the old action of assumpsit, for money had and received to the use of the plaintiff. The promise, which. Fox had made Holly, showed that the money was really received to the use of Lawrence. In that quasi equitable action the inquiry was whether the defendant had money, which, in justice, he ought to pay over to the plaintiff. Thus the fact that Fox had the money, and that he had promised so to apply it, showed the justice of the plaintiff’s claim.

But another class of oases embraces those where a mortgagor assigns the mortgaged land, and the assignee assumes the mortgage debt. In such a case the transaction is not for the benefit of the mortgagee, but for the benefit of the mortgagor. No property is put into the assignee’s hands, except that which is already pledged for the payment of the debt. The assignee holds nothing which he ought to apply to the payment of the debt, except the land itself; and that is already bound by the mortgage. The transfer, therefore, is not for the benefit of the mortgagee, and the promise is made only to protect the mortgagor.

The liability then, which has been enforced, in such cases, against the assignee and in favor" ef the mortgagee arises on other principles. As the mortgagor is liable, it follows that, if he should be compelled to pay, be could look to the assignee, who has practically agreed to indemnify him. And to avoid circuity of action, or by a quasi subrogation, the mortgagee is allowed to sue the assignee directly ; the assignee having become the quasi principal debtor, and the mortgager the quasi surety, as between themselves.

And, because the rule in such cases depends on these principles, it follows that, if the assignment by the mortgagor be, in fact, conditional, the assignee is not liable to the mortgagee. (Garnsey v. Rogers, 47 N. Y., 233.) For, in that case, the assignee has not become the principal debtor, as between him and the assignor. •

Henee it is also that, if the assignor were not personally liable,the mortgagee cannot recover against the assignee. ( Vrooman v. Turner, 69 N. Y., 280.) For there could be no right of action by the assignor, as ho could not be compelled to pay the debt. And hence there is no right to which the mortgagee could be subrogated.

But now, to show the contrast between the two classes of cases, suppose that a person, not liable for a certain debt, had put in the hands of another money, with which to pay the same, and the party, so receiving the money, had agreed therewith to pay the. debt, would not the creditor be entitled to an action, as for money had and received to his use, according to the case of Lawrence v. Fox? Thus it is said in Garnsey v. Rogers, that, to entitle the third party to his action, the contract must have been made for his benefit.

Now in the case of the assignment of mortgaged property, where the assignee assumes the mortgage, the contract is not made for the benefit of the mortgagee. The assumption of the mortgage is for the indemnity and protection of the assignor; and such indemnity and protection alone are within the view of the parties. And it is only through the rights of the mortgagor that the mortgagee has any claim against the assignee. Hence it follows that, whenever the mortgagor chooses to- surrender this indemnity and protection, he may do so. And the mortgagee has no right to complain. Nothing is taken from him to which ho had any ifight. (Stephens v. Casbacker, 15 Sup. Ct. N. Y., 116; Crowell v. Hospital, 27 N. J. Eq., 650.)

If the case were one, like Lawrence v. Fox, where money, not already subject to the debt, had been put in the hands of a person for the payment of the debt, so that the creditor could insist that such money was held by that person for his benefit, his rights would be very different. It would be unjust to him that the person who held this money should pay it back and be discharged. But, in the present case and in those like it, there can be no paying back, to the prejudice of the creditor ; because the only property which was transferred was subject to the lien of the creditors debt; and no transfer can affect the creditors right thereto.

The remark in Garnsey v. Rogers that where, in an absolute conveyance, the payment of the mortgage is assured, it is unconditional and irrevocable, was intended, as I think, to point out the difference between an absolute deed and a deed in the nature of a mortgage. It certainly did not mean that an agreement to assume the mortgage could not be revoked, by mutual consent, as between the parties. The effect of such revocation on the rights of the mortgagee is the present question ; and was not under consideration in that case.

I think that the judgment should be affirmed, with costs.

Judgment reversed and judgment ordered on demurrer for plaintiff, with costs.


author:
Bockes, J.:
      Learned, P. J. :

text:
    JANE A LASHER, ARTEMAS SAHLER AND WILLIAM LOUNSBERY, Respondent, v. THE NORTH-WESTERN NATIONAL INSURANCE COMPANY, Appellant.

      Policy of insurance — arbitration clause — inapplicable, where the company denies all liability— One to whom the loss is made payable may join as a plaintiff with the assured — Failure to state the interest of the assured — when a policy is avoided by.

    A policy of insurance, issued by the defendant, provided as follows: “If differences of opinion'should arise between the parties hereto, as to the amount of loss or damage upon property damaged, the subject shall be referred to two disinterested and competent men, each party to select one (and in case of disagreement they to select a third), who shall, under oath, ascertain, estimate and appraise such partial loss or damage upon each, article separately, and their award in writing shall be binding on the parties hereto.”

      'Held, that this clause had no application to a case in which there was no difference of opinion as to the amount of the loss or damage, but in which the defendant denied all liability under the policy.
    Where a policy of insurance is issued to the owner, and the loss is made payable to others, therein named, as their interest may appear, a joint action lies thereon by the assured and those to whom the loss is made payable.
    A policy of insurance was issued to one Jane A. Lasher, “on her household furniture,” etc., for $2,500, “loss, if any, payable to Artemas Sahler and Wm. Lounsbery, as their interest may appear.” The policy provided that “if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured or if the building insured stands on leased ground it must be so represented to the company, and so expressed in the written part of this policy, otherwise the policy shall be void.” The assured held the furniture under a contract for its purchase from Sahler and Lounsbery, upon the express agreement that the title should remain in them until the price was paid.

      Held, that the policy was avoided by the failure of the assured to notify the company of this fact and have it expressed in the policy.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by the court without a jury.
    The action was brought upon a policy of insurance, issued by the defendant, whereby it insured “Jane A. Lasher against loss or damage by fire, to the amount of $2,500, as follows : On her household furniture, * * * loss, if any, payable to Artemas Sahler and Wm. Lounsbery, as their interest may appear.” The furniture, upon which the insurance was effected, was situate in a building known as “ The Woodstock Overlook Hotel,” kept by the plaintiff, Mrs. Lasher, and was held by her under an agreement 'for its purchase from Lounsbery and Sahler, by which they retained the title until the purchase-price should be fully paid. The policy contained a clause, by which “if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the said assured, or if the building insured stands on leased ground, it must be so represented to the company, and so expressed in the written part of this policy, otherwise the policy shall be void.”
    The complaint alleged “that on the 1st day of April, 1875, the goods, wares and merchandize in said policy mentioned, were injured or destroyed to tho amount of $25,000.” No proof of damages was given upon the trial.

      Carlisle, Norwood, Jr., for the appellant.

      Win. Lounsbury, for the respondents.
   Bockes, J.:

The opinion of Mr. Justice Westbrook, giving the grounds of his decision of this case on the trial, is satisfactory, except as to the provisions in the policy relating to the title of the assured to the property covered by it. The non-payment of the premium, charged as a ground for the avoidance of the policy, was unquestionably waived by the company. The waiver, although by parol, was effectual. (Van Schoick v. Niag. Fire Ins. Co., 68 N. Y., 434, and cases there cited.) Nor was the action barred by reason of the clause in the. policy providing for a reference or arbitration. There was no difference of opinion between the parties as to the amount of the loss or damage ; but the defendant denied liability in tolo. The policy did not provide for a reference or arbitration to determine simply and only a right of recovery; but the provisions applied to a case where there was a difference of opinion between the parties as to the amount of loss or damage occasioned by the fire. As to the binding force of stipulations, for references and arbitrations contained in contracts, see the following cases : Haggart v. Morgan (5 N. Y., 422); Binsse v. Paige (1 Keyes, 87); Hurst v. Litchfield (39 N. Y., 377); Greason v. Keteltas (17 N. Y., 491); Gibbs v. The Con. Ins. Co. (20 N. Y. Sup. Ct. [13 Hun], 611, 614.)

Nor was the action prematurely brought, because commenced before the expiration of sixty days from the furnishing of the proofs of loss. The proofs were furnished April sixteenth, and the action was commenced September sixth, thereafter. Thus it seems that more than sixty days had elapsed after the proofs were furnished before the action was commenced. The paper served in August was made and served to verify the fact that the original proofs were authorized and sanctioned by the assured. The proofs having been made out and verified by an agent of the latter, this paper added nothing to the proofs previously furnished to the company as regards the property destroyed, its ownership, value, or the origin of the fire. The proofs of loss were well furnished April sixteenth. Besides, this question was not in issue on the pleadings. It is also urged that no proof of damages was given at the trial. It was not denied that the property covered by the policy was injured or destroyed by fire April first, and the defendant put in evidence the proofs of loss ; also the agreement between Lasher, Sahler and Lounsbery, in which papers the value of the property destroyed was estimated at a sum far exceeding the amount of insurance specified in the policy. This evidence, put in by the compa íy, was at least prima facie proof of damages exceeding the amount claimed, and no countervailing proof was offered. But the motion for a nonsuit, on this ground, was as stated in the case, because the plaintiff had not proved “ any damages.” That the property insured had been destroyed by fire, during the life of the policy, was undisputed; indeed, was not denied in the answer. So this stood admitted on the pleadings. Some damages therefore were admitted, and it was not, consequently, good ground of nonsuit that the plaintiffs had not proved “ any damages.”

The objection that Mrs. Lasher was improperly joined as plaintiff in the action was properly overruled. Independently of the question whether this objection was not waived by the omission to raise it by demurrer or answer (Code, §§ 144, 148), the complaint and proceedings show that Mrs. Lasher was a proper party to the action. According to the complaint she was certainly a proper party, if not a necessary party, for the contract of assurance was made with her, and the recovery would be by her, the sum recovered to be paid to the other plaintiffs as their interest might appear. So, too, after the evidence was in, the action was still her action, the other plaintiffs obtaining their rights through her recovery. Mrs. Lasher and the other plaintiffs had an interest in the suit, and all as plaintiffs. How the recovery was to be divided or disposed of between the plaintiffs was of no account to the defendant. The action was maintainable by all the plaintiffs jointly, as they were all interested as plaintiffs in the prosecution of the action upon the contract. The controlling issues in the case, on the pleadings, related to matters between Mrs. Lasher and the defendant, and went .directly to her right of recovery, and a failure to establish, a right of action in her would defeat all right of action in the other plaintiffs, as they claimed through or under her. As was said in Grosvenor v. The Atl. Fire Ins. Co. (17 N. Y., 391), “ the mortgagor must sustain a loss for which the insurers were liable, before the party appointed to receive the money would have a right to claim it.” It is there said that “it is the damage sustained by the party insured, and not by the party appointed to receive payment, that is recoverable from the insurers,” (See, also, Frink v. Hamp. Ins. Co., 45 Barb., 384; Cone v. The Niagara F. Ins. Co., 60 N. Y., 619.) It is not necessary here to consider the question, whether the parties named as payees in the policy might not alone maintain the action in cases like this in hand. The question is, whether the assured and his appointed payees may not join in the action. Certainly all of them have an interest in the recovery claimed. This should give the right of action to them jointly in case they so elect to join. It was hold in Cone's Case (supra), that the defendant could make no inquiry into the state of the accounts between the assured and the payees appointed in the policy. As between the assured and her appointed payees, the latter could have from the recovery only to the extent of their interest. But with the division of the recovery the defendant has no concern. The issues in the case are made between the plaintiffs, on the one side, aud the defendant on the other. The motion to dismiss the complaint as to Mrs. Lasher was properly denied. The above suggestions, as well as the authorities cited, apply to aud sustain the ruling on the motion to dismiss the complaint as to Sahlcr aud Lounsbery. The motion was properly denied as to them.

Wre are now brought to the formidable difficulty in the way of a recovery in the action. It is provided in the policy that “ if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy, then this policy shall be void ;” and, also, that “if the interest of assured in the property be any other (than the entire unconditional and sole ownership of the property for the use and benefit of the said assured), it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void.” Now, the interest of Mrs. Lasher, the assured, in the property was not truly stated in the policy. The property was designated in the policy as “ her” property ; yet the title to it was in Sahler and Lounsbery. . Mrs. Lasher was hi possession of the property under a contract with Sahler and Lounsbery for its purchase ; but it was expressly provided in the contract between them, that the title should not pass to Mrs. Lasher, but should remain and continue in Sahler and Lounsbery until the contract price, $19,286.35, was fully paid; and it appears that she had paid at the time of the loss about $5,000 of the contract price, leaving then unpaid of the same about $17,000. Thus Mrs. Lasher had but an equitable interest in the property; the legal title being in Sahler and Lounsbery. By the terms of the policy her interest should have been so stated, to render the insurance contract valid. The provision is, that if her interest in the property, “whether as owner, trustee, * * * * or otherwise,” should not be “ truly stated ” in the policy, then that it should be void. There is no statement in the policy’ indicating that her interest in the property was á mere equity, and that the legal title thereto was in another, or others, as was the fact. Her interest was not therefore “ truly stated” in the policy. This is not a case of fraud in the repre-i sentation of the title of the assured to the property. Had it been so, the statement in the policy that the insurance was “ on her ” property would have been sufficient, in the absence of all fraud, to support a recovery on her equitable title. One having ah equitable title to property has an insurable interest in it, and in the absence of fraud, or of an express warranty as to title, the property would be well described in a policy, in general terms, as “ his ” property. Such statement of title, unless made the basis of contract constituting a warranty, would be treated as a representation, and would not prejudice the rights of the assured, unless in some way material to the risk, untrue and not made in good faith. (Owens v. Holland’s Purchase Fire Ins. Co., 56 N. Y., 565; Dohn v. The Farmers’ Joint Stock Ins. Co., 5 Lans., 275.) But this is a case of express contract between the assured and the insurer, declaring in what case the policy should be inoperative and void. The parties stipulated for themselves, and the stipulation, not being unlawful, bound them to its terms ; they agreed that in case the interest of the assured in the property should not be “truly stated ” in the policy, then that the contract of insurance should be void. The provision was a lawful one and was binding. The interest of the assured was not truly stated in the policy, hence it was void by the expressed stipulation of the parties to it. The learned judge found that Fredenburgh was the authorized agent of the company to deliver the policy and collect the premium, and that he knew the real interest of the several parties plaintiffs m the insured property. If these facts were well found, it might be maintained that there was a waiver of the condition contained in the policy above considered, in which case the recovery could be upheld. (Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434; Bodine v. Exch. Fire Ins. Co., 51 N. Y., 117; Davis v. The Lamar Ins. Co., MS. opinion, Third Dept., May Term, 1879.) But there is no proof that Fredenburgh was informed or had knowledge of the true state of the title to the property when the insurance was effected and the policy delivered. That he had before procured insurances upon the property did not prove knowledge in him of the true state of the title when this policy was issued; nor did the policy itself, wherein payees were appointed to receive the money in case of loss or damage, as their interest might appear, show knowledge in the agent or company of the true condition of Mrs. Lasher’s title to the property. Such statement or provision in the policy would not, of itself, operate as a waiver of the conditions, or estop the company from insisting on its breach as a bar to a recovery therein. (Grosvenor v. The At. Ins. Co., 17 N. Y., 391; Bidwell v. North-western Ins. Co., 19 id., 179; Ripley v. The Ætna Ins. Co., 30 id., 136; Noyes v. The Hart. F. Ins. Co., 54 id., 668; Van Schaick v. Niag. F. Ins. Co., 68 id., 434; Pitney v. The Glen’s Falls Ins. Co., 65 id., 6.) There was no express waiver in the policy; nor were any facts proved outside the policy on which to found either a waiver or an estoppel. The agreement of the parties, therefore, that the policy should be void in case the interest of the assured in the policy should not be truly stated therein remained in full foi'ce and vigor. The judgment must be reversed.

Boardman, J., concurred.

Learned, P. J. :

Iu concurring with tlie result of the foregoing opinion I do not wish to be understood as holding that the plaintiff was not bound to make proof of her damages under the pleadings (Huntington v. Conkey, 33 Barb., 218), or that there was any evidence on that point; or any failure on the defendants part to present the question properly.

The general rule is that where damages are unliquidated they must bo proved, although not formally denied.

Judgment reversed, new trial granted, costs to abide event.

       See post p. 230.


author: Boardman, J. : Learned, P. J.,

text:
    JOSEPH MASTEN, Appellant, v. H. JOSEPH BUDINGTON as Administrator of, etc., of HENRY J. BUDINGTON, Deceased, Respondent.

      feeferenee of a claim disputed by an administrator— the eourt may order a com-pnlsory reference, where a new trial is granted at &eneral Term — 2 R. /S., 89, § 37.
    Where upon, appeal to the General Term from a judgment entered upon the report of a referee, appointed under the provisions of the Revised Statutes to determine as to the validity of a claim against the estate of a deceased person, disputed by his administrator, the judgment is set aside and the order of reference vacated, the court at Special Term has power to refer the case to a new referee to hear and determine, even though the action be one in which a compulsory reference cannot ordinarily be ordered. (Learned, P. J., dissenting.)
    Appeal from an order made at a Circuit Court hold at the city of Kingston, in and for Ulster county, directing a reference in this action.
    The action was brought into the Supreme Court, under the provisions of the statutes relating to claims presented against the estates of deceased persons and disputed by the executor or administrator.
    The claim of Mastcn, the plaintiff, was presented to the defendant, disputed by him, and on February 5,1876, an agreement was made referring the claim to S. L. Stebbins, which was approved by the surrogate, and an order of reference was accordingly entered in the office of the clerk of Ulster county. The cause was tried before the referee, who reported in favor of the plaintiff, and judgment was entered thereon, from which the defendant appealed to the General Term. The General Term reversed the judgment, ordered a new trial, with costs to abide the event, and discharged the reference. The action was not one in which a compulsory reference could be ordered under the provisions of the Code.

      J. FTeioton Fiero, for the appellant.

      J. M. Cooper and A. Bchoonmalcer, Jr., for the respondent.
   Boardman, J. :

By section 37 of 2 Revised Statutes, 89, the referees agreed upon by the parties, and approved of by the surrogate, shall hear and decide the matter referred to them, and make their report to the Supreme Court. The proceedings shall be the same, the referees shall have the same powers and be subject to the same control as if the reference had been made in an action in which such court might, by law, direct a reference, and the court may set aside the report of the referees, or appoint others in their places, and the judgment of the court, thereupon, shall be valid and effectual in all respects, as if the same had been rendered in a suit commenced by the ordinary process.

The Supreme Court obtained jurisdiction of this case by virtue of the agreement of the parties selecting the referee, the approval thereof by the surrogate, the filing of the same with the clerk of the court, and the entry of a rule referring the matter in controversy to the person selected. The provisions of this statute make such reference compulsory under certain penalties. (Gorham v. Ripley, 16 How., 313.) After it is so referred it may be treated in the same manner as a case in which the court could direct a reference without consent. It is specially provided that upon setting aside the report of the referees, other referees may be appointed in their places. This court, on setting aside the judgment entered on the report of the referee, also set aside the order of reference to such referee. By virtue of the statute another referee could then have been named by this court, and the Special Term possessed the same power. It has exercised it in naming a person who is free from any just objection. The purpose of the statute was to furnish a prompt and inexpensive mode of determining the validity of claims against estates of deceased persons. That mode contemplated the appointment of a referee or referees, and when necessary the substitution by the Supreme Court of others in their places as was done in this case.

I think the action of the learned judge at Special Term was in accordance with the language and the purpose of the statutes, and that his order should be affirmed, with ten dollars costs of appeal, together with printing expenses.

Bockes, J., concurred.

Learned, P. J.,

dissenting:

I should be glad to take the view adopted by my brethren. But I cannot. In Preston v. Morrow (66 N. Y., 452), the Court of Appeals held that were an action is not referable, without consent of parties, a consent to refer to a particular referee did not waive the right to a trial by a court or jury, if the reference agreed upon fell through. The constitutional right to a trial by jury ivas waived, only in a qualified manner, by the consent to refer to a certain person designated. If the reference to that person failed, then the constitutional right was not waived.

So it seems to me that the court has, in this respect, no greater power in an action of this present kind, than it would have had, if the action had been commenced in the ordinary manner. The section of the statute (2 It. S. [m. p.], 89, § 37), giving the court power to appoint other referees, must be limited to those actions which may be referred without consent, and to cases where parties consent to a new referee, and must not bo construed to deprive the parties of a right to a trial by jury when they have not waived it.

Order affirmed, with ten dollars costs, and printing disbursements.


author: Bockes, J. :

text:
    ALMA A CRAWFORD, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Section 44 of chapter 140 of 1850 —• the company must fence vacant lots fronting on its tracks in a city.

    Section 44 of the g-eneral raili'oad act, requiring companies to erect and maintain fences along the line of their roads, is applicable to cases in which their tracks are laid in the streets of cities and villages, and they are liable to the owner of cattie injured by their neglect to fence the vacant lots fronting thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought for the alleged negligent omission of the defendant to maintain fences and cattle guards, by reason of which plaintiff’s cows were alleged to have got upon- the defendant’s tracks, in the city of Cohoes, and have been killed.

      Matthew Hale, for the appellant.

      J. F. Qrawford. for the respondent.
   Bockes, J. :

The referee has found that the cow, without the fault or negligence of the plaintiff, escaped from the enclosed pasture where she was kept, and passed upon the defendant’s track, and was there killed by a passing engine, through the negligence of the latter in omitting to erect and maintain fences on the east side of its road, between Alexander street and Columbia street, and in omitting to erect and maintain cattle guards at the crossings of those streets, suitable and sufficient to turn cattle from its road. If these facts be well found, they, with the other undisputed facts certified to the court, will sustain the recovery by the plaintiff for the value of the cow. It is not understood that negligence is charged against the plaintiff in permitting the cow to escape from the pasture where she was kept. The pasture lot was well fenced, and negligence cannot be imputed to the plaintiff for her escape therefrom. (Spinner v. The N. Y. C. and H. R. R. R. Co., 67 N. Y., 153.) Nor will the mere fact that the cow was a trespasser upon the defendant’s road, bar the action, if the fact be well found that she was killed by reason of the defendant’s omission to erect and maintain fences along its track, and cattle guards at the road crossings. The statute gives the action in such case on account of such omission. So it was early hold in the Court of Appeals in Corwin v. The N. Y. Erie R. R. Co. (13 N. Y., 42), that a railroad corporation which omits to comply with the statute, as to erecting and maintaining fences and cattle guards, is liable to the owner of cattle for injuries to them from passing engines, although the cattle ■were trespassers upon the track. This ruling has been adhered to in numerous cases since it was there declared. (Bradley v. Buff. N. Y. and E. R. R. Co., 34 N. Y., 427-432; Shepard v. Buff. N. Y. and E. R. R. Co., 35 id., 641; Tracy v. Troy and Bos. R. R. Co., 38 id., 433; Spinner v. The N. Y. C. and H. R. R. R. Co., 67 id., 153.) The ordinance of the city of Cohoes, prohibiting cattle and animals from running at large within the corporate limits, did not relieve the defendants from the statutory obligation to erect and maintain fences along its road, and cattle guards at road or street crossings. The duty imposed by the statute remained, notwithstanding the city ordinance. The statute had a broader purpose than to protect cattle and animals from injury'. It was intended as a protection to the traveling public as well. (Corwin v. The N. Y. and E. R. R. Co., 13 N. Y., 42, on page 53; Brace v. The N. Y. C. R. R. Co., 27 id., 273; Bradley v. The Buff., N. Y. and E. R. R. Co., 34 id., 427, on page 430.) Besides, the ordinances have application to those cases where cattle and animals are at large by permission of the owner ; not to a case of casual, accidental and unintentional estray. But it is urged that the statute by fair construction does not apply to populous cities and villages, hence does not require the erection and maintenance of cattle guards at street crossings, nor fences along the line of vacant lots in those localities. It was held otherwise in Brace v. The N. Y. C. and H. R. R. R. Co. (27 N. Y., 269) and, also, in Tracy v. The Troy and B. R. R. Co. (38 id., 433). See, also, reasoning of Judge Wright, in Bradley v. The Buff., N. Y. and E. R. R. Co. (34 id., 427). It is also urged that the fence along a portion of the line of the railroad was removed by Mr. Crawford, the husband and agent of the plaintiff, and that the cow may have passed on to the track at the point of such removal by Mr. Crawford. There is no sufficient proof to bind the plaintiff to the responsibility of the removal of the fence. But were this otherwise, the cow was killed at a point on the road quite distant from where Mr. Crawford made the removal, and in the absence of all proof as to where the cow passed upon the track, it might well be presumed that she went upon it at or near where the injury occurred. The judgment cannot be reversed on a presumption that she entered on to the road at a particular distant point, without satisfactory proof to support the presumption.

We are of the opinion that the record is free from error, and that the judgment must be affirmed with costs.

LearNed, P. J., and BoardmaN, J., concurred.

Judgment affirmed, with costs.