author: Herrick, J.

text:
    Isabella McCormick, Resp’t, v. The City of Amsterdam, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    1. Municipal corporations—Negligence—Streets.
    Municipal authorities may by their action treat and' adopt a highway-made by private persons as a public street, and hence become responsible-for its condition without any formal acceptance.
    2. Same.
    The charter of the defendant provided that it should cause a map of the; streets and highways to be made and designate thereon such streets and. highways which, in their judgment, could not be'put in proper conditions for general travel without too great expense, and that they should not be liable for accidents or injuries caused by the defective condition of streets- or highways so designated. Held, that if the city desired to escape responsibility for a street which was a highway prior to its incorporation it should comply with the requirements of the act, and that the burden was. upon it to show that it had done so.
    Appeal from judgment in favor of plaintiff entered upon the-report of a referee.
    Action to recover damages sustained by plaintiff by reason of a fall upon the sidewalk of John street, in the city of Amsterdam.

      Louis H. Reynolds, for app’lt; A. B. Flansburgh, for resp’t.
   Herrick, J.

The principle question discussed upon this appeal was as to whether the place called John street in the city of Amsterdam is a public street over which the defendant had custody and control, and for whose condition it is responsible.

The testimony shows that it was at the time of the accident-which is the foundation of this action, and had been for more than twenty years prior thereto, a highway used by vehicles and foot passengers to pass and repass; that it had a well defined roadway and foot path, or sidewalk; that a sewer had been laid through it,, also a water main; that it was lighted by lamps for which the city paid; that work had been done upon it which the city paid for; that in the neighborhood of one hundred people resided upon it;, it was used in every way in which a public street can be used and it seems to me that within the cases of Saulsbury v. Ithaca, 94 N. Y., 27; Pomfrey v. Saratoga Springs, 104 id., 459; 5 St. Rep., 802, it must be held to be a street for which the defendant-is responsible. I do not go so far as to hold that private persons-may lay out a highway through their property and by using it as-a highway and permitting others to so use it they can compel a municipality to become responsible for it as a public street; but the municipal authorities may by their action treat it and adopt, it as a public street, and hence become responsible for its condition without any formal acceptance.

It also seems to me that the defendant is responsible for the-highway in question for reasons not referred to or within the scope of the cases hereinbefore cited. The place in question had been used for highway purposes for more than twenty years prior to the happening of the accident, which was in March, 1888. In April, 1885, the defendant was for the first time incorporated as a city; within its boundaries was the place in question which had been so used as a highway as before stated, and the defendant: through its common council was given the care and custody of the highways within the city.

The act of incorporation also provided as follows : “ Section 88. The said common council shall cause to be made a map of all the-streets and highways in said city, and to be designated thereon in such a manner as they deem proper those streets and highways, which, in their judgment, cannot be put in proper condition for general travel without too great expense. They may repair said streets for the convenience and benefit of the inhabitants thereof, but said corporation shall not be liable for any accident or injury to person or property caused or occasioned by the defective condition of any street or highway thus designated.”

The place in question was not a highway imposed or attempted, to be imposed upon the city without its authority; it was there before the defendant became a city, was being used as a highway, and in accepting its charter, and the obligations it imposed, the defendant became responsible for it and other highways, see City of Rochester v. Campbell, 123 N. Y., 405-411; 34 St. Rep., 77, unless it relieved itself in the manner provided for in § 88 of chap. 131 of the Laws of 1885 above cited, and there is no evidence in the case showing that the defendant has ever designated John street as one of the streets for which it should not be liable as provided in that section. If it desired to escape responsibility for the street it should have complied with the requirements of the law, and the burden of proof is upon it to show that it has done so; and no proof being offered to that effect the presumption is that it has not designated John street as one of the excepted streets, but has elected to care for, maintain, and be fully responsible for it as one of the streets and highways of the city.

Judgment should be affirmed, with costs. . .

Putnam, J., concurs; Mayham, P. J., riot sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Robert C. Waldron, Resp’t, v. Emma Walker, Def’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Supplementary proceedings—Third party order—Disputed indebtedness.
    Where there is a substantial dispute as to whether the third party is indebted to the judgment debtor, and the money in question is claimed by another person who has brought action to enforce his claim and the judgment debtor denies that it is due to him, the judge has no authority summarily to decide the question and direct payment of the money to the sheriff or any other person.
    Appeal by Louis Bourdon from that portion of an order of the county judge of Saratoga county which directs payment by the Hew York & Lake Champlain Transportation Co. of certain moneys to the sheriff, to remain in his hands until the further order of the court.
    On the 3d day of June, 1891, an order was issued by Hon. J. W. Houghton, Saratoga county judge, directing the New York & Hake Champlain Transportation Company to appear before a .referee and be examined in relation to an indebtedness due from it to the defendant. June 8 and 10, 1891, the treasurer and general superintendent of the tow-path department of the company were examined before the referee, and testified to indebtedness from the company to the defendant of about $240.
    The referee made his report June 10, 1891, and on the 13th -day of June, 1891, Judge Houghton made an order directing the company to pay the $240 =to the sheriff of Saratoga county. That order was served on the company June 15,1891, and subsequently the company paid the money ($243.20) to the sheriff. On the 1st day of July, 1891, an order was made directing the sheriff to apply the money so received in his hands upon an execution then in his hands in favor of the judgment creditor against the defendant.
    On the 2d day of July, 1891, the appellant Louis Bourdon -commenced an action against the company for $243.20, the .amount paid by the company to the sheriff pursuant to the order ■of July 1st, 1891.
    On the 8th day of July, 1891, upon the application of the company, Judge Houghton granted an order to show cause, on the 13th day of July, 1891, why the order granted June 13, 1891, should not be vacated and set aside, and an order made directing said money to be refunded and repaid to said company.
    Upon the return of said order the order appealed from was made, granting the application, and also directing that the company pay said sum to the sheriff, there to remain until the further order of the court upon notice to all parties interested.

      Thomas O' Connor (Nathaniel G Moalc, of counsel), for app’lt ; J. W. Atkinson, for resp’t.
   Herrick, J.

This court has heretofore determined that an order directing a third party to deliver over property of a judgment debtor' in his hands can only be made where the right to the possession of the property is substantially undisputed. Hayes v. McClelland, 20 W. Dig., 393.

It has been also determined that in proceedings against a third party to reach money or property alleged to be in his possession hut due, or belonging to, the judgment debtor, the judge has no authority to decide the question of indebtedness, or ownership, summarily and compel its payment or delivery. West Side Bank v. Pugsley, 47 N. Y., 368. In the case before us there is a substantial dispute as to whether the third party is indebted to the judgment debtor; the money in question is claimed to be due to another than the judgment debtor, and such claimant has brought an action to enforce its payment; the judgment debtor denies that it belongs to her. Under such circumstances the county judge had no authority to summarily decide the question, and direct the payment of the money to the sheriff or any other person.

The order appealed from should be reversed, with ten dollars costs and printing disbursements.

Putnam, J., concur; Mayham, P. J., not sitting.


text:
    Eugene S. Clark, App’lt, v. Charles W. Lude, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    1. Verdict—Affidavits of jurors.
    On motion to vacate an order setting aside a verdict, affidavits of the: jurors are admissible to show what the verdict meant.
    2. Same—Correction of sealed.
    Where the jury is instructed by the court that if the plaintiff is entitled, to recover, he is entitled to a certain sum, and that the only question is the legality of the contract, and they return a sealed verdict for the plaintiff without nom ng any sum, the court has power to return the verdict to them for correction, although they had previously separated, they not yet-having been discharged.
    Appeal from order of county court, denying motion to vacate-an order setting aside a verdict in favor of plaintiff and directing, a new trial, and to correct the verdict by making it conform to the intention of the jury, and appeal from the order setting aside-the verdict.

      T. F. Wilkinson, for app’lt; J. W Ecker, for resp’t.
   Herrick, J.

This action was brought to recover $368.90, the purchase price of some tobacco alleged to have been sold by plaintiff to defendant.

The evidence is not before us, but apparently there was no question as to the amount of the claim, but as to whether there was a legal contract of sale between plaintiff and defendant.

The court, in its charge to the jury, said: “ The price agreed upon was $368.90, which amount the plaintiff asks now to recover, with interest added to it from the 1st of January. If that contract was a legal contract, plaintiff is entitled to recover the full amount, principal and interest from the 1st of January last, because the tobacco, by the agreement, was to have been paid for during the year 1890. The only question is, was that a legal contract ? ” Ho exception was taken to this charge. The jury retired, and the following morning presented a sealed verdict in these words : “ We, the undersigned jurors, find a verdict for the-plaintiff.”

The plaintiff’s counsel requested the court to direct the jury to-retire and fix the amount they find for the plaintiff, the jury being yet present, not having finally separated.

The court refused, on the ground that the jury had separated over night, and it was a sealed verdict, and seated that it was irregular in not stating any amount, and for that reason he would set it aside and direct a new trial, whereupon the motion of defendant to set aside the verdict and direct a new trial was granted, on the ground stated by the court. From that order the plaintiff appeals to this court.

After the making of such order, and at the same term of the court, the plaintiff moved to vacate the order setting aside the verdict and ordering a new trial, and to correct the verdict to make it conform to the intention of the jury. Upon such motion, in addition to the minutes of the trial, the affidavits of all the jurors, under objection by the defendant to the use thereof, were read, showing that they supposed it was not necessary to state the .amount, deeming a-finding in favor of the plaintiff sufficient to entitle ■ him to the recovery of the amount claimed, with interest.

This motion was also denied, and from the order denying such motion the plaintiff has taken a separate appeal to this court. Both appeals will be considered together.

• The affidavits were properly received, to make manifest what the verdict meant, not to impeach or reverse it. Dalrymple v. Williams., 63 N. Y., 361; Hodgkins v. Mead, 5 N. Y. Supp., 433; 25 St Rep., 935; S. C., aff’d 119 N. Y., 166; 28 St. Rep., 950.

The amount of the debt was unquestionable. Whether or not the plaintiff was entitled to recover it from the defendant was a question of fact for the jury, and the only question for them to pass upon; the amount of the debt was the measure of recovery. They were told by the court that the only question for them was, was the contract a legal one; that the amount was agreed upon.

When, therefore, the jury found a verdict for the plaintiff their meaning was plain, and it was within the power of the court to ■cause .them to correct the irregularity. Hatch v. Attrill, 118 N. Y., 383; 29 St. Rep., 14. And the refusal of the court to correct the verdict “ on the ground that the jury had separated over night and it was a sealed verdict,” if the court meant by that that for those reasons it had no power to send it back for correction, was error.

It has been held that when a jury has been authorized to bring in a sealed verdict, and has found it, put it in writing, sealed it, has separated, has come together the next morning and given it, and it has been entered upon the minutes of the court, yet that it is within the power of the court to send it back to the jury for correction, the jury not yet having been'dismissed. Warner v. N. Y. C. R. R. Co., 52 N. Y., 437-440.

Here the meaning of the jury is evident; they find for the plaintiff, the amount'is agreed upon at $368.90, with interest, which is a matter of computation, and appears to be $15.64; in all $384:54. And when the only question in controversy has been settled by the jury it would be a serious reflection upon the administration of justice to say that the casé must be tried over again to correct an informality that can be corrected at once to make the verdict in all respects conform to the manifest and plain intent of the jury.

In a somewhat similar case where no sum had been specified, the court of appeals uses this language : “The plaintiff is entitled to recover a sum certain, known, conceded, if entitled to recover anything. The only issue in the case is one as to what the contract was, and if not what the plaintiff alleged it to be, then the defendant was entitled to a verdict. This is acquiesced in and conceded bv the defendant. The judge so charges and states the precise sum that the plaintiff is entitled to if he has a verdict in his favor. The jury agree upon a verdict and write ,it down in favor of the plaintiff, in accordance with the agreement arrived at by them, and they agree upon the sum named by the court. In •such a case of absolute, uncontradicted facts, where a certain, ■definite, conceded amount follows a verdict for the plaintiff as 'Certainly as the night follows the day, it seems to me a mere travesty or mockery of justice to hold that no legal verdict has been arrived at, that the court is powerless to aid, and that the-■plaintiff must lose the benefit of the trial and the verdict actually -agreed upon, and both parties must be put to the expense of pro•ceeding de nova to atrial of the cause.” In that case the court ■•some days after the verdict was reached corrected the verdict "itself. Hodgkins v. Mead, 119 N. Y., 166-71; 28 St. Rep., 950; See also Bohlen v. M. E. R. R. Co., 121 N. Y., 546 ; 31 St. Rep., 888: Segelke v. Finan, 48 Hun, 310; 15 St. Rep., 808.

The orders of the county court must be reversed, and the plaintiff have judgment on the verdict as corrected for the sum of .$384.54, with the printing disbursements and the costs of one •appeal.

Putnam, J., concurs; Mayham, P.' J., not sitting.


author: Herrick, J.—This

text:
    Almon H. Mussen, App’lt, v. The Ausable Granite Works, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Tenue—Constitutional law—Laws 1882, chap. 410, § 1103.
    Section 1103 of chap. 410," Laws 1882, providing that the supreme court in the first judicial district, the court of common pleas and the superior -court shall have exclusive jurisdiction of actions to which the city of New York is a party defendant, is unconstitutional so far as it confines the trial -of such actions to the county of New York and prevents the supreme court ■from exercising its power to change the place of trial. A suitor has the right to firing such action in the supreme court in any part of the state.
    Appeal from judgment and order sustaining demurrer to the complaint,

      A. W. Boynton, for app’lt; Corbin & Rowe (F. A. Rowe, of «counsel), forresp't.
   Herrick, J.—This

plaintiff and appellant brings this action to enforce a lien given by chap. 315 of the Laws of 1878 against ■certain funds in the treasury of the city of Hew York alleged to be due and belonging to the defendant and respondent, the Au-■sable Granite Works. The city of Hew York is made a party defendant, and is served with a summons and notice of the object •of the action. The venue of the action is laid in Essex county, in the fourth judicial district. The respondent, “The Ausable Granite Works,” demurred to the complaint, on the grounds that the supreme court in the fourth judicial district has no jurisdiction in this . action ; that the supreme court in the first judicial •district, the court of common pleas and the superior court in and for the city and county of Hew York have exclusive jurisdiction •of this action, and that the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was sustained in the court below,, tin the ground that the supreme court has no jurisdiction.

The demurrer as to jurisdiction, and the decision in the court below, are based on § 1103, chap. 410, Laws of 1882, reading as follows: “ The supreme court in the first judicial district, the court of common pleas and the superior court shall have exclusive jurisdiction of all actions or special proceedings where the- ’ mayor, aldermen and commonalty thereof are made a party defendant.”

The constitution, art 6, § 6, provides that “ There shall be the existing supreme court with general jurisdiction in law and equity.”

That is a provision as to the supreme court as a whole.

• Its jurisdiction is as wide as the boundaries of the state, and! every person, natural or artificial, within such boundaries is subject to that jurisdiction.

For convenience in the transaction of business the state has. been divided up into districts, but the court in each district is the-supreme court of the state, and each has the same power, no more- or less than the other; it is the power and jurisdiction of the supreme court, not the supreme court of the first judicial district, or the fourth judicial district, but the supreme court of the state.

The jurisdiction is given to each and every part of the supreme 'court, each possessing all the power granted to the court, and to confine jurisdiction in certain classes of cases to one part of the court is to deprive the rest of the court of its jurisdiction, or to> limit or to qualify it. The jurisdiction is general, unlimited and unqualified, and the legislature has no power to limit or qualify it. People v. Supervisors, 49 Hun, 481; 18 St. Rep., 898; People v. Nichols, 79 N. Y., 582. And any act of the legislature which deprives the court of the jurisdiction it had at the time of the adoption of the constitution, or limit or qualify it, is unconstitutional and void. Alexander v. Bennett, 60 N. Y., 204; Brooklyn v. New York, 25 Hun, 612; Popfinger v. Yutte, 102 N. Y., 42; 1 St. Rep., 34; Hutkoff v. Demorest, 103N. Y., 380; 3 St. Rep., 631. If the act in question is valid, the supreme court in each district,, or county, can be given exclusive jurisdiction in cases where the* defendant is a resident of • such district or county; if exclusive jurisdiction can be given in one class of cases it can in any, and. thus fhe court stripped largely of the powers heretofore exercised by it, and made a court of limited and special, instead of general jurisdiction.

The suitor also has rights under this section of the constitution,, that cannot be taken away from him.

He has a right to go in the supreme court anywhere for relief. To apply to the court, not to a particular member or territorial division of it. He cannot by legislative enactment be compelled to go before a particular member of it, or to a specific, county, although the court in the exercise of its power may in furtherance of justice subsequently send him there; but he has a. Tight to apply to it for relief wherever within the limit of the state he finds it exercising its functions.

Yet if this law is upheld there is nothing to prevent the legislature to compel any resident of the state, no matter where he lives,, "if he seeks relief against a resident of New York city, because of some transaction that took place upon the St. Lawrence, to go to the first judicial district in the county of New York for it, for if they can compel suits against a corporation located in the first judicial district to be brought there, they can also compel suits .against natural persons.

If the act in question is to be regarded simply as fixing the -venue in the kind of actions in question, it is open to the same •objection. The term “jurisdiction,” as used in the constitution, I think, means “jurisdiction ” of every kind that a court can possess,of the person, subject matter, territorial, and generally the power of the court in the discharge of its judicial duties. Among the ■powers that have been exercised by courts of general jurisdiction from time immemorial has been the power to change the place of trial of an action not involving real property, in furtherance of .justice.

It was one of the powers exercised by the then existing supreme •court at the time of the adoption of § 6, article 6 of the constitution.

The statute in question strips the court of that power, it confines the trial of actions to which the city of New York is made a party to the county of New York, and prevents the court from -exercising its power to change the place of trial, and is in that regard in derogation of the powers granted and confirmed to the ■■court by the constitution.

For these reasons I think the "court below erred and that the judgment and order appealed from should be reversed, with costs and printing disbursements in the court below and of this appeal.

■ "The defendant and respondent to have leave to answer upon the payment of such costs and disbursements.

Putnam, J., concurs.


author: Van Brunt, P. J.—In

text:
    In the Matter of The Southern Boulevard Railroad Company.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Discontinuance —Eminent domain.
    In 1890 a railroad company commenced proceedings to acquire an easement upon a street on which one Spofford had owned property. In 1888 the respresentatives of Spofford brought an action to restrain the company from constructing the road and obtained a preliminary injunction. This was vacated upon a stipulation that the company should vigorously prosecute its proceedings to acquire a right to operate the road and also should give an undertaking to indemnify the plaintiffs in that action. Upon an application by the company to discontinue the present proceedings, Held, that, it must be refused, as a discontinuance would prejudice the rights of Spofford’s representatives under the undertaking and was in violation of the stipulation to vigorously prosecute the proceedings to acquire the right to operate the road.
    Appeal from order denying application to discontinue the proceedings herein.

      M Lauterbach, for app’lt; W. P. Williams, for resp’ts.
   Van Brunt, P. J.—In

January, 1890, the appellant commenced this proceeding to acquire the easement to construct and maintain a street railroad in the city of Hew York along a portion of the Southern Boulevard in which Paul Spofford, now deceased, had an interest. His devisees and their legal representatives', duly appeared and in February an order was entered appointing: commissioners to condemn the easement. In April the commissioners made an award in which they awarded damages to the representatives of Spofford to the amount of six cents, and in May an order was made confirming the award. On appeal to the general term this order was reversed and the appraisal vacated, and a new appraisal directed to be had before the same commissioners.

An appeal was taken to the court of appeals from the order of ’ the general term, which was dismissed in June, 1891. In October,. 1891, the appellant piade application for an order discontinuing-the proceedings upon the ground that § 18 of chapter 140 of the-Laws of 1850 provides that the second appraisal when confirmed, by the special term shall be final, and it, therefore, precludes the-possibility on the part of the railroad company of ever having-the question of the excessiveness of the award reviewed by the. general term.

This application was denied, and from the order thereupon entered this appeal is taken.

It appears from the papers presented upon this appeal that in-August, 1888, an action wherein the representatives of Spofford. were plaintiffs was commenced against the appellant to restrain the construction of the railway upon the property affected by this proceeding, in which action a preliminary injunction was-granted and was only vacated upon the condition that the. appellant should give a stipulation to vigorously prosecute the proceedings to acquire the right to construct and operate the street sur- ■ face railroad, and also give an undertaking in the sum of $5,500 to indemnify the plaintiffs against any loss which they might sustain by reason of the vacation of the injunction order; the sum awarded.in the condemnation proceedings for the value of thepIaintiffs, interest in the land taken with interest thereon from the date of the award to be taken as part of the damages that the-plaintiffs might recover upon the undertaking.

It is urged that rights under the undertaking, which has been, referred to, would be imperilled if' this proceeding Were discontinued, as it would probably not be held that its condition extended to other proceedings than the condemnation proceedings, therein referred to, which are the proceedings which it is now sought to discontinue; and also that such discontinuance would be a violation of the terms of the stipulation above mentioned.

It is urged upon the part of the appellant that the-petitioner has an absolute right to discontinue, and even if it has not, as matter of right, nevertheless the equity of its application should induce the court to confer such right upon it.

Without considering the question as to whether the petitioner-may discontinue its proceeding as matter of right, it seems to be-sufficient now to say that its discontinuance" would certainly imperil the rights of the respondents under the undertaking which has been given, and would seem to be a violation of the stipula- • tian-which was given as a condition of vacating the injunction referred to.

It is no answer to this position to say that if that stipulation was violated the remedy for the respondents was the reinstatement of the injunction. The appellant has been pursuing these condemnation proceedings apparently in consequence of the giving of that stipulation, and the respondents have been relying upon its terms, and the protection which the undertaking gave to them. They, therefore, have a right to claim that these proceedings shall be continued in such a manner as will protect them in their undertaking, and also in a manner which conforms to the spirit of the injunction. They are to be vigorously prosecuted, which evidently means with the utmost diligence, and the discontinuance of these proceedings, and the commencement of new ones, would deprive the respondents of their rights under the undertaking, and would be a palpable violation of the spirit of the stipulation.

It seems to us, therefore, that even if, under ordinary circumstances, the appellant might • have an absolute right to discontinue, yet the respondents having acquired rights which would thereby be imperilled, such absolute right was voluntarily relinquished by the appellant.

Upon the whole case, we are of opinion that the court was right in refusing to permit the discontinuance, and that the appellant should be compelled to continue the proceeding for the purpose of condemnation.

The order appealed from should be affirmed, with costs.

Patterson and Ingraham, JJ., concur.


author: Lawrence, J.—The O’Brien, J.—In Van Brunt, P. J.—I

text:
    Nicholas W. Walsh, Ex’r, Resp’t, v. Marie Waldron et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    "Wmij—Suspensión of power of alienation.
    A testator, by his will, devised his estate to trustees, and directed that each child during minority should receive such portion of the entire in- . come as the trustees thought best; that the interest of the sons in the principal and income should cease at majority unless the daughters died without issue. There were four sons and two daughters; all but one of whom were minors when their father died. Held, that the trust was entire and was void as suspending the power of alienation for more than two lives in being at the death of the testator.
    Appeal from a judgment at special term construing the will of Hugh Waldron, deceased.
    _ John Delaliunty, for pl’ff, resp’t; Michael J. Scanlon, guardian ad litem for infant app’lts; David M. Newberger, for def’ts, resp’ts; Ezekiel Eixman, for guardian ad litem for infant resp’ts.
   Lawrence, J.—The

learned justice who decided this case below rendered the following opinion:

O’Brien, J.—In

construing the will of Hugh Waldron, deceased, no doubt as to his intentions exists. The language used is unambiguous and the scheme proposed clearly indicated.

He intended that each child during minority should receive • such a portion of the entire income as, in the discretion and judgment of the executors and trustees, would be requisite for his or her support and education, and that as each son attained his majority his interest in the income should cease, and even in the principal he should not thereafter participate, except in the event of either of his daughters dying without issue, or perhaps in the event of the daughters dying, though leaving issue, without having made a will.

His two daughters were the primary objects of his solicitude, as evidenced by the provisions which gave to each of them upon the youngest son, Daniel, attaining his majority, one-half of the entire income for life, with the right to each upon her death having issue to dispose of one-half of the principal.

To effectuate these intentions a conversion of the real estate would be necessary, and in determining the validity of the trusts created by the will we must assume the real estate to be equitably converted into personal property. Should the trusts, however, be declared void and the testator be held to have died intestate, then the necessity of resorting to the doctrine of equitable conversion likewise falls by becoming immaterial.

Are the trusts of personalty created by the will valid ? Under the Revised Statutes, the absolute ownership of personal property shall not be suspended by any limitation or condition whátever by will for a longer period than two lives in being at the death of the testator.

By the fourth clause of the will, the ownership is suspended during the minority of at least four of testator’s children, and even if we construe minority to mean lives we have still the ownership suspended for a period longer than the statute allows.

There is no separate trust in favor of each child, nor any aliquot or proportionate share of income allotted, but the principal and income are to be held in a single trust, and each child receives such proportion of the income as the trustee thinks proper to give.

The fourth clause being void, can the sixth clause be upheld ?

This provides “ that when my youngest son, whose name is Daniel, shall have attained the age of twenty-one years, that the income arising from all of my estate shall then be equally divided between my daughters, Marie and Ellen, during their lives, and in the event of either of my said daughters dying leaving issue, then, and in that event, one-half of my said estate in the hands of my said executors to be disposed of as she might direct by will,” etc.

In determining the validity of limitations of estates under the Revised Statutes, as said by Judge Grover in 41 N. Y., 328: “It is not sufficient that the estates attempted to be created may, by •the happening of subsequent events, be terminated within the prescribed period, if such, events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid, they must be so limited that in every possible contingency they will absolutely terminate at such. period, or such estates will he held- void.” Haynes v. Sherman, 117 N. Y., 433; 27 St. Rep., 254.

It has repeatedly been held, that .the period of suspension must depend upon lives. Every suspension for a definite or indefinite period, however short, is void.

If the court were at liberty to make a will other than the testator himself made, it might indulge in a construction which would give a meaning to the sixth clause holding that the trust is one for the life of Daniel as to the whole fund, and then a trust as to one-half of the fund for each girl for life, and then the entire fund to vest.

It is evident, however, that the period of the minority of Daniel, as said in Titus v. Weeks, 37 Barb., 136, “is not a minority dependent upon life, but is a definite term extending until the time when the minority would terminate, or, in the event of his death, would have terminated The name and the minority are used in this will' simply to indicate the period of distribution and as a measure of time. It is plain that the testatrix had in mind a definite period during which she desired her nephews to receive the income, and that she also intended that the final distribution of her estate should not take place until the, end of that period. It would be doing violence to her intention, and to the whole structure of the will, to hold that all its provisions should be changed, and the distribution of her estate accelerated by an event she does not seem to have contemplated.”

This language is equally applicable to the will under consideration.

The suspension, therefore, attempted by the sixth clause, having been not for a life or lives, but for a definite period, the whole disposition of the estate made by the will is void.

There should be a decree accordingly.

We fully concur in the views expressed in the foregoing opinion, and therefore affirm the judgment rendered at the special term.

Van Brunt, P. J.—I

concur in the result. It is apparent from a reading of the will in question, whether the subject matter of the trust is to be considered as real or personal estate, the trust is to continue as to the whole of the estate as long as any of the children remain minors. Because if the youngest son dies before attaining the age- of twenty-one years, and during the minority of the other children or any of them, the trust for the sons continues until all the-minorities of the sons cease and after that the final distribution of the estate is dependent upon the life of a sister.

Thus if Daniel should die during his minority, and before James, William and Hugh had become of age, the trust must continue during the minority of each of these or until all had died during minority, or had attained their majority; and also until the death of one of the daughters before a distribution could be had of any part of the estate.

It might happen, therefore, that five lives must terminate before distribution; a clear violation of the statute.


author: O’Brien, J.

text:
    Henry Ludwig, App'lt, v. Gustav Blum, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Attachment—Jurisdiction.
    A warrant of attachment was issued against one as a non-resident of the state. It appeared that the defendant did not leave the city of New York, but went to a hotel and remained there under an assumed name and seventeen days after the attachment was issued committed suicide. The summons in the action had never been served upon him, nor had any order for service by publication been asked for or granted. Held, that as the summons was not served upon the defendant within thirty days from the issue of the attachment jurisdiction was not acquired.
    Appeal from an order vacating an attachment.

      Douglas & Minton, for app’lt; Arthur Murphy, for resp’t.
   O’Brien, J.

On June 1, 1891, defendant Gustav Blum was indebted to the plaintiff. On June 26th a summons was issued and an action brought to recover such indebtedness. On June 27th a warrant of attachment was issued herein against said defendant as a non-resident of this state. Five days before the defendant left his place of business in the city of New York, after expressing an intention to go to Providence, R. I., to see certain of his creditors. Instead he went to the Grand Union Hotel in this city, and registered there under an assumed name, and there remained secluded until July 14,1891, when he committed suicide. It will thus be seen that but seventeen days had expired between the time of the issuing of the attachment ánd the death of the defendant ; and although plaintiff used due diligence to obtain personal service of the summons upon the defendant, it is conceded that the summons was never served on the defendant, and no order for service by publication had been asked for or granted. On August 6, 1891, an order was granted continuing the action against the administratrix, amending the summons accordingly, and on the same day the amended summons and complaint were served upon her. This order was granted ex parte, and subsequent to the service upon Mrs. Blum, as administratrix, she moved to vacate the attachment, which was granted, upon the ground that the summons was not served within thirty days from the issuing of the attachment.

Section 416 provides: “ A civil action is commenced by the service of a summons. But from the time of the granting of a provisional remedy the court acquires jurisdiction and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent by a special provision of law upon some act to be done after the granting of the provisional remedy.”

Section 638 provides: “ The warrant of attachment may be granted * * * to accompany the summons, * * * personal service of the summons must be made upon the defendant against whose property the warrant is granted within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, * * * and must be made complete by the continuance thereof.”

Section 441 provides“ The first publication in each newspaper designated in the order, or the service upon the defendant without the state, must be made within three months after the order is granted. * * * ”

Section 755 provides: “ An action does not abate by any event, if the cause of action survives or continues.”

This precise question has been presented in many cases. It seems to us it should be regarded as settled. The contention of the appellant, based upon the distinction that exists in regard to the jurisdiction over the action, and jurisdiction to continue the attachment, is not new, having already been presented in the case of Mojarrieta v. Saenz, 80. N. Y., 547, 550, wherein it was, in effect, decided that the observance of this distinction was neither material nor necessary to determine the question here presented. As therein said: “ It is questionable whether the lapse of thirty days, without publication of the summons, ousts the jurisdiction of the court, or abates the action, or merely -avoids the attachment. * * * ”

In Blossom v. Estes, 84 N. Y., 617, which refers with approval to Mojarrieta v. Saenz, supra, it was held (the opinion reading as follows): “ The attachment was granted under the Code of Procedure, upon the ground that the defendant was a non-resident. It has been vacated for the reason that a summons was not personally served, or the publication thereof commenced, within thirty days from the issuing of the warrant. * * * As the right to this process was conferred by statute, and is limited by its provisions, the plaintiffs must bring the case within its authority, and show that their proceedings conformed to it”

Without referring to the provision of the Code which requires personal service of the summons to be made, or publication thereof, within thirty days, the opinion continues: “ Here is a plain condition on which the vitality of the attachment depended, and it has not been complied with. It was good when issued, but remained so for thirty days only, unless within that time one or the other of the two steps was taken. The plaintiffs, however, neither served the summons personally nor by publication. At the end of that time_ the statutory bar fell, and with it the attachment. The jurisdiction which attached upon allowance of the one ceased, and as to that proceeding it was as if the statute had been repealed.”

Here the summons was neither served nor any order of publication made prior to the death of the defendant, and a distinction is sought to be made between the case just referred to, where the thirty days were allowed to elapse or expire, and the case of the death of a defendant against whom an attachment is issued within the thirty days. This precise question has also been passed upon in the case of Barron v. The South Brooklyn Saw Mill Company, 18 Abb. N. C., 352, wherein-it was held that ■ the conditional jurisdiction acquired .by the levy of a valid attachment, property o£ a non-resident defendant, in this state, and the due commencement of service of summons by publication, is divested and the attachment falls by the death of the defendant before such service is made complete by the continuance of the publication for the required period.

This case is particularly instructive, as it contains a chronological examination of the original provisions of the Code, and the amendments thereto since 1849.'

The appellant insists, however, that the acts of the defendant in preventing personal service upon him, and the exercise of diligence to effect such service points the distinction between this and other cases.

It is, however,clear, by parity of reason, that if after the commencement of service of summons by publication the attachment falls by the death of the defendant, before such service is made complete, that a like result would follow no matter what diligence was exerted to secure personal service, if the death of the defendant occurred before such personal service was actually effected. In Paget v. Pease, 17 Civ. Pro., 234; 24 St. Rep., 762, this general term followed the rule enunciated in Barron v. The South Brooklyn Saw Mill Company, supra, and in the case of Kohlberg v. Blum, which was an action against the same defendant, the motion to vacate the attachment upon the same ground was granted by the judge at special term.

We do not, therefore, consider this an open question, and finding no facts in this case which in principle should distinguish it from those already referred to, we are of opinion that the order appealed from should be affirmed, with costs and disbursements.

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


author: Van Brunt, P. J.—The

text:
    In the Matter of Luke A. Lockwood, Ex’r of Gerardus A. G. Van Beuren, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Will—Conflicting codicil.
    One Van Beuren, by Ms will, directed that there should be no distribution of Ms residuary estate until the death of Ms brother, and in Ms will had directed his trustees to retain a sum of money and to apply its income to legacy taxes and expenses of administration. By a codicil he created certain trusts and then directed Ms trustees to pay over the balance to certain legatees. It was declared that the codicil should control where it conflicted with the will. Feld, that it was error to allow the trustees to retain the sum set apart by the will to pay legacy taxes, etc.
    Appeal from a portion of the surrogate’s decree.

      A. S. Cassedy, for app’lt; R. B. Shannon, for ex’rs; Michael J. Mulqueen, for special guardian.
   Van Brunt, P. J.—The

only questions raised by this appeal are as to malting legacies continuous charges upon residuary estate and as to the authority of the surrogate to direct the trustees named in the will in question to retain out of the residuary estate the sum of $15,000 and invest the same and pay and apply the interest and'income arising therefrom, and so much of the principal as might be necessary to the payment of all legacy and succession taxes and all charges and expenses of certain legacies and the administration thereof.

In the year 1889 one Gerardus A. G. Van Beuren died in the city of New York leaving a last will and testament dated March 26, 1878, and a codicil thereto dated July 12, 1884. The will and codicil were duly admitted to probate and upon the accounting of the executors the surrogate was requested to construe the sixth clause of the will.

The testator after numerous bequests gave “ to his trustees two bonds and mortgages for $5,000 each, one made by Calkins, and the other by Bacon, to receive the interest, pay the same as it might accrue to his sister-in-law, Rachel A. Van Beuren, during her widowhood, and on her marriage or death gave one of the bonds and mortgages to a niece Carrie, and the other to a niece Eliza.”

He also gave “ to his trustees a bond and a mortgage of $5,000, and one of $3,000 made by Calkins, and a bond and mortgage of $2,000 made by Shaw, in trust to set apart and hold the same, receive the interest, and pay the same as it should accrue to his brother, Samuel D. Van Beuren, during his life, and at his death he gave the first two of said bonds and mortgages, amounting to $8,000, to one of his nieces, and the other bond and mortgage to a nephew.

The fifth and sixth' clauses of the will are as follows:

’ “ Fifth. I give and bequeath unto the said trustees all the rest, residue and remainder of the property and estate, both real ami personal, of every description, and wherever situated, of which I may die seized or possessed, the real estate to be sold as soon as may be in their discretion, either at public or private sale, as they may deem best for the interest of my estate, and after paying my debts, funeral expenses and small gifts hereinbefore named, to have and to hold the same in trust, to set apart, invest and hold . the proceeds thereof, to receive the interest thereon as it accrues and pay over to my brother, Simeon B. Van Beuren of Now York city, during his natural life, the sum of six hundred dollars ($600) a year out of the interest so received, adding the balance of said interest to the main sum to accumulate. Upon the demise of my brother Simeon, I give and bequeath to my nephew John, provided he cancels a claim against me of four hundred and sixty-eight dollars ($468) for brother Samuel’s board, if it be • not already paid, two thousand dollars ($2,000); to my cousin, William H. Van Vorst, one thousand dollars ($1,000); to my friend, Luke A. Lockwood, for his fidelity to me, one thousand dollars ($1,000) ; to the St. Paul’s Episcopal Society at Riverside, Conn., five hundred dollars ($500), and the balance to my nephew, Theodore, and his heirs, to his and their own use and benefit forever.”
Sixth. All legacy and succession taxes and expenses which may be payable in respect of the bequests and devises in this will contained, I direct to be paid out of the interest from the proceeds of the real estate, so that each annuitant receive the whole of the income derived from the principal sum held in trust for his or her benefit. And should any of the legacies herein lapse, the same shall be distributed among my surviving nephews and nieces (excepting Theodore) share and share alike. ' Those leaving lawful issue them surviving such issue shall receive the share the parent would have taken if living.”

The seventh clause provides as to the time when annuities are to commence. The eighth clause is as follows :

Fighth. In case I should part with any of the securities herein bequeathed in trust, I direct my executors and trustees to supply the deficiency by investing out of the funds of my estate the necessary amount so lacking and apply the same to the fulfillment of such bequests or substitute any other that I may have left, bearing not less than six per cent, interest, not otherwise disposed of. And in case any of them shall be paid off before the termination of the trust upon which they may be held, I direct that the trustees reinvest the proceeds thereof and hold the same upon the same trusts upon which they held those paid off, and in the same manner and upon the same limitations as if they had not been so changed.”

This will was dated March 26, 1878. On the 12th of July, 1884, the testator made a codicil thereto in which he ratified and confirmed his will," save so far as any part of it was inconsistent with the codicil and such parts as were inconsistent were revoked, and after having specially revoked some arid changed other specific legacies contained in his will, the codicil proceeded as follows : “ It is my will and I now order and direct that paragraph marked fifth of my said will be and it is hereby amended so as to read and the same shall read as follows :

“Fifth. I give, devise and bequeath to my trustees all the rest, residue and remainder of my estate, real and personal, of every description and wheresoever situated, of which I may die seized and possessed; the real estate to be sold as soon as may be in their discretion, either at private or public sale, as they may deem" for the best interest of my estate, in trust, that after paying my debts and funeral expenses, they pay the, interest or income on a certain bond and mortgage for twelve thousand dollars ($12,000), made by William H. Yan Yorst and wife, on the premises known as No. 156 Wooster street, New York, to my nephew Theodore Yan Beuren" (quarterly if possible) during his natural life, and upon his individual receipt, and upon the death of my.said nephew Theodore that they assign the said bond and mortgage, or the proceeds thereof, half to my nephew John and his heirs, and half to my nephew Oliver and his heirs. " And that my trustees set apart and invest out of said residuary estate, of proceeds thereof, the sum of twelve thousand dollars ($12,000), and pay the interest or income thereof to my brother Simeon B. Yan Beuren in quarterly payments during his natural life, and upon his individual receipts, and upon his death they pay the said sum of twelve thousand dollars ($12,000), and half thereof to my nephew John and his heirs, and half thereof to my nephew Oliver and his heirs. " And that my trustees pay out of my said residuary estate, or the proceeds thereof, to cousin "William H. Van Vorst one thousand dollars ($1,000); to my friend Luke A. Lockwood, for his fidelitydo me, one thousand dollars ($1,000); to St. Raul's Episcopal Society; at Riverside, Conn., five hundred dollars ($500); to my cousin Schuyler Westervelt, of Spring Valley, Rockland county, JST. Y., one hundred dollars •($100), and that they divide the remainder of my said residuary estate equally, and pay one-half thereof to my nephew John and his heirs and the other half thereof to my nephew Oliver and his heirs. And I hereby revoke all of said paragraph fifth of my .said will omitted from this paragraph in this my codicil.”

It is apparent, therefore, that the method of construction claimed by the respondents, that the will should be construed as though the codicil were incorporated therein and originally formed part thereof, cannot prevail as the codicil expressly declares that where inconsistencies arise the codicil is to prevail and the will is pro ■tanto revoked. It is undoubtedly true that the will and codicil .should be so construed as to carry out the intention of the testator, and that they should be construed'together, but incase of in- • consistencies in the case at bar the codicil must prevail.

Upon an examination of the will and codicil it will be seen that the intention of the testator at the time of framing the will was very different from that which existed at the time of executing the codicil.

By the will there was to be no distribution of the residuary estate until the death of the testator’s brother Simeon B.Van Beuren; whereas by the codicil the trustees after providing for certain trusts are directed to pay over the balance therein directed to certain legatees named.

It is claimed by the respondents, and it was so held by the learned surrogate, that by the sixth clause of the will the testator intended that out of the residuary estate his executors and trustees should pay all the expenses of administration of the various devises contained in the will during the whole of their continuance, and it was to meet these charges that the fund in question was set apart.

The testator certainly says that each annuitant shall receive the whole of the income derived from the principal sum held in trust for his or her benefit, and it may possibly be that at the time of the making of the will it may have been the intention of the testator to charge upon' the residuary estate the expenses of the administration of these trusts, as at that time the scheme of the testator was that his residuary estate should not be divided and distributed at his death but should remain in the trustees’ hands during the life of his brother Simeon.

But when he came to make his codicil the testator provided ior ■the distribution of what remained of his estate after providing for the legacies mentioned in the will and codicil; and no suggestion is made.in respect to the retention -of anything whatever, except the legacies held in trust. The direction of the testator is to take certain specific sums out of his residuary estate, and divide the balance. If by the sixth clause of. the will the testator originally intended that the continuous expenses of administration of these legacies should be paid out of the residuary estate, it. seems to be clear that it was abandoned when the codicil was-framed, as such a scheme could not be carried out and the direction of the codicil to divide and pay obeyed.

But the testator never directed by the sixth clause that any part of his residuary estate should be devoted to this object, and manifestly never contemplated such a thing. It will be observed that by the sixth clause of the will these expenses were tobe paid out of the interest from the proceeds of the real estate. ¡No part of the principal was to be applied to this object. By the will the-executors were to hold and invest the proceeds of the estate, during the life of Simeon, the brother of. the testator, and pay him a small sum out of the interest derived therefrom, and accumulate-the balance, and thus the executors had a fund of interest to which the sixth clause could apply; but by the codicil the executors-could hold only specific sums devoted to definite purposes and are-directed to divide and pay over the balance, and therefore could not have any proceeds of real estate in their hands the interest of which they could apply to the payment of the expenses of the-legacies; a clear change of purpose in the testator.

This direction to divide in the codicil being inconsistent with the provisions of the sixth paragraph of the will, if the will be-thus construed, the provisions of the will must fall as the codicil expressly declares.

But we think that the sixth clause can be so construed as to-harmonize both will and codicil. It says all legacy and succession taxes and expenses in respect to the legacies shall be paid out of the interest from the proceeds of the real estate. These-words seem to relate only to the ordinary expenses of administration and of taxation during administration. These were to be borne by the estate, but after the estate was administered then each of the legacies stood upon its own footing and had no fur-ther relation to the residuaiy estate. But it does not seem to us-that the latter construction so well defines the intention of the testator as that first above referred to, viz.: that the testator intended his residuary estate to be divided as soon as it could be administered upon, and hence, no matter what he had originally intended by his will, he desired to revoke so much as would interfere with this distribution. It seems to us, therefore, that the portion of the decree appealed from should be reversed, with costs-to the appellants and the executors and guardian ad litem to be-paid out of the residuaiy estate.

Patterson and O’Brien, JJ., concur.


author: O’Brien, J.—The

text:
    John B. Fischer, App’lt, v. Gertrude Boecher et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Partnership—Real estate—Trust.
    A complaint alleged that partnership real estate stood in the name of one-partner, who conveyed it to one Boecher, and that by agreement of all her title was to be a fee if she paid a certain sum to each partner; that Boecherhad attempted to convey it to a third person in violation of the trust, ¡inch the complaint sought to establish the trust, and asked an accounting.
      Held, that it was defective; that it did not appear what was the exact estate which Boecher took in the land, nor what act she had refused to perform which the court could compel her to perform.
    Appeal from a judgment entered upon an order dismissing the complaint made at the opening of the trial, on the ground that the complaint does not state facts sufficient to constitute a ■cause of action.

      Daniel D. Sherman, for app’lt; Edward Browne, for resp’ts.
   O’Brien, J.—The

complaint shows that the title to partnership real estate was taken in the name of one of the partners; that such partner subsequently conveyed the real estate through one Kvahe, to the defendant, Gertrude Boecher; that by agreement ■of all the parties, the defendant’s, Gertrude Boecher’s, trustee ¡title should be an absolute fee simple upon payment by her of a ■certain sum to each partner; that said defendant has attempted So convey the same to a third party, in violation of the trust, and seeks to establish the trust, an accounting, a sale, and distribution of proceeds. The complaint is claimed to be defective in that She alleged trust is not one of the express trusts permitted by .statute; that the defendants, Adam Boecher and Frederick Boll-wage should have been joined as plaintiffs; that there is no sufficient allegation connecting Mrs. Boecher with the alleged trust, and lastly, that in any aspect of the complaint, no cause of action is stated.

Fairchild v. Fairchild, 64 N. Y., 471, is authority for the statement that “ real estate purchased for and appropriated to partnership purposes and paid for out of partnership funds, is partnership property, although the legal title is taken in the name of one of the partners; equity will hold him as trustee for the firm.” “ That real «estate so purchased is not within the provisions of the statute of uses and trusts, 1 R S., 728, § 51, providing that when a grant for a valuable consideration shall be made to one person, and the consideration paid by another, no use or trust shall result in favor of the person making the payment. The partner having title is a trustee for the firm, holding the property as personalty, and when this trust is discharged by the payment of the debts or the settlement of the ■claims of the partners as between themselves, a trust in remainder results by operation of law to the other members of the firm, and the heirs of such as have died, which is valid by the provisions of the said statute reserving trusts arising or resulting by implication of law.”

This case was cited and applied in the case of Greenwood v. Marvin, 111 N. Y., 423; 19 St. Rep., 612, wherein it was held that “ real estate purchased by a firm with its funds for partnership purposes is regarded in equity, so far as the fund and' its creditors are concerned, and so long as the partnership affairs remain unsettled, as personal property. The interests of the respective members of the firm are not required to be established by deed or instrument in writing. The creation of a trust as to such interest is not prohibited by the statute of uses and trusts.”

It will thus be seen that there was no legal objection to conveying the property to Boecher, one of the partners, subject to the-partnership trust, and if the complaint had alleged that the title-subsequently conveyed to Krahe, and by him conveyed to Gertrude Boecher, was done under an .agreement that the same waste be held as personal property, and if it had been further made to. appear that the partnership'affairs had not been settled or adjusted, or if the opposite had been made to appear, that they had been settled and adjusted, and the rights of the partners, as between themselves, fixed and determined, so that a division of the partnership assets could be made, a cause of action would have-been stated which a court of equity could have enforced.

Such an action to compel the trustee to sell the property would! be based upon the theory that the property was subject to a partnership trust, which, for the purpose, .of paying the debts of the firm or adjusting the rights of the‘partners, could have been enforced. The .difficulty with the complaint here, however, is .not that a partnership trust in real estate is obnoxious to the statute, but. that no facts are stated -from which any such inference can be-drawn. It is not alleged -that the defendant Gertrude Boecher, who holds the title to the property, was a trustee for any such purpose. In regard. to a trust, the only allegation of the complaint is that the title “.should be conveyed to one Henry Krahe- . and subsequently to Gertrude Boecher, to be held in trust for the-plaintiff and the said defendants Adam Boecher and Frederick Bollwage.” This was an agreement between the parties, and whatever its character it appears that Gertrpde Boecher was neither a party to this agreement, claimed by the plaintiff to have resulted in the conveyance of the land to her, nor is it in any way shown, that she was privy thereto.

On. the contrary, other averments of the complaint, show that; she took title under an agreement to pay the grantor and the-plaintiff a valuable and substantial consideration, for a conveyance of the fee of the land.. Thus it is not shown nor can it be-determined from the complaint whether Mrs. Boecher took an. estate in the land as trustee, or whether there was a mere naked power in trust -given; and, if either, what act she was to perform . with respect, to the land which she refused to perform, or which the court could, by its decree, direct her to perform; nor is it made to appear what act she contemplates doing, which the court can say was or was not in her power to do.

Before the court can be induced to act in a case of this character, even upon plaintiff’s theory of a trust, it should, in some way, be stated or made apparent that the trustee, contrary to the terms • of the trust, is about to commit some act to the injury of his. cestui que trust. The complaint is barren of all such allegations,, and the- most favorable construction for plaintiff would .be, that., the defendant, Gertrude Boecher, obtained the property under an. agreement that she would pay -for the same the sum mentioned in. the complaint; but when and where she should make such payment, and as to what the agreement was as to the disposition-of the land in case of her refusal to make such payment, is not alleged.

Taking, therefore, all the allegations of the complaint to be true, the court would be unable to determine what relief should, be granted to plaintiff, nor could it say, if it directed a sale of the property, to whom the proceeds should be given. Such complaint is too indefinite, and is wanting in the essential avermentsfrom which any cause of action can be spelled out.

Indulging in every presumption most favorable to plaintiff in order to support the complaint, we cannot see,' upon the facts pleaded, any theory or principle upon which a cause of action could be predicated.

We are of opinion, therefore, that the order and judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Lawrence, J., concur in result.


author: Vann, J.—The

text:
    In the Matter of the Application of the Trustees of the Importers & Grocers’ Exchange for a voluntary dissolution of that corporation.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    Cobpobations—Dissolution—Code Civ. Pbo., § 2499.
    When the interests of the stockholders of a corporation are so discordant, as to prevent efficient management and a large majority of both trustees- and members wish to wind up its affairs, a dissolution thereof will be beneficial to the interests of stockholders within the meaning of § 2429, of the Code of Civil Procedure, and will be decreed because the object of the corporate existence cannot be attained.
    Appeal from an order of the general term of the court of common pleas of the city and county of Hew York which reversed an order of the special term denying the application for dissolution, and granted the motion to dissolve.
    This was a special proceeding for the dissolution of a corporation, organized August 21, 1883, pursuant to chapter. 228 of the Laws of 1877, under the corporate name of the “ Importers &. Grocers’ Exchange of Hew York,” to continue for the period of fifty years. The proceeding was initiated by the petition of a majority of the trustees and the practice pursued, as to which no question is raised, was that prescribed by §§ 2419 to 2432 of the Code of Civil Procedure. From the report of the referee, to-whom it was referred to take the proofs and determine the facts,, it appeared that the object of the corporation as set forth in its charter certificate was “ to foster trade and commerce in groceries and East Indian and South American products; to protect such trade from unjust and unlawful exactions; to reform abuses in said trade and diffuse accurate and reliable information among its members; to produce uniformity and certainty in the customs and usages of the trade in said merchandise; to settle differences between the members of said corporation arising out of the trade in said merchandise, and to promote a more enlarged and friendly-intercourse between merchants engaged in said trade and generally to increase the facilities for conducting the trade in groceries and East Indian and South American products.”
    The amount of the capital stock was $3,750, divided into fifteen shares of $250 each, one share being held, ex officio, by each of the fifteen trustees, and upon the expiration of his term of office passing under the by-laws to his successor. The members were elected by the trustees, and each one was required to pay an initiation fee of $250 until the number equalled 100 ; after that .$500 until there were 200, and after that $1,000. The certificates of membership are transferable, provided the transferee is approved by the committee on membership' and the governing •committee. There are now 220 certificates outstanding, held by 216 members. The Exchange began work in November, 1883, occupying commodious rooms, furnished with black boards, call ¡stands, and all the usual appliances for the convenient transaction of the business of an exchange. The annual rental was $7,000, .and the salary roll.nearly as much more. The attendance at first was large, and much business was done, chiefly in teas and sugars for future, delivery. Speculation in tea was so active that prices gradually rose from nineteen to thirty-four cents a pound, but the market became demoralized in consequence, failhres resulted, business ran down, the attendance fell away, and all efforts at resuscitation were in vain.
    From November, 1883, to December, 1884, inclusive, the transactions in tea amounted to more than 45,000,000 pounds; in sugar, to nearly 60,000 tons, besides about 40,000 barrels, and in hemp, to 900 bales. The decline began with the collapse •caused by speculation in March, 1884, and gradually continued until May 1, 1885, and since then there have been no transactions •on the Exchange. • In May, 1884, steps were taken to reduce •expenses, and in March, 1885, cheaper, though large and convenient rooms were occupied. In April, 1886, the Exchange removed to small and inconvenient rooms that rented for $450 a year, and in February, 1887, a part of these was surrendered, ■and since then the rent has been- $300 per annum, and the salary roll fifteen dollars per week. As early as June, 1885, a move was made to wind up its affairs. At the annual election in 1885 118 votes were cast,- and in 1886 only thirty-four. In April, 1887, the governing committee, composed of the officers and trustees, unanimously resolved to take the necessary legal steps for a dissolution and appointed a committee for that purpose.
    Nine out of the fifteen trustees verified the petition by which this proceeding was commenced and three .trustees served an answer. Thirteen members of the present governing committee and •one hundred and thirty-one holders of certificates of membership •either petitioned for a dissolution or testified on the trial that, in their opinion, it was for the best interest of the members to wind up the Exchange. The opposition is headed by two members •and one ex-member of the governing committee, and consists-entirely of those interested in the tea trade, but does not include all who"are thus engaged. Ten members .testified that they were, opposed to dissolution, because it furnished the following benefits to the tea merchants: Combined action in state and legislative matters ; reliable standards of values; uniform telegraphic and other-trade information; accurate monthly statements of teas received and delivered, showing the consumptive demand; machinery to-settle disputes as to packing, cooperage and the condition of teas; the establishment of regular warehouse charges and “ the ability to issue certificates of tea upon which money could be borrowed as collateral.” The referee found that such benefits accrued to the tea people from the organization of the Exchange, but that none of those benefits now exist, except the collection and publication of statistics of the amount of tea received and in warehouses.
    He also found that the Exchange has outlived its usefulness ; that no business has been done there for a long time past, and that business cannot be successfully conducted there; that the great, majority of all the members desire its dissolution, and that a trust fund, accumulated from the sale of certificates of membership and-amounting to $69,648.68, is lying idle, and the members desire to receive their respective shares thereof. There are no debts against the corporation, except a small amount for current expenses.
    The governing committee is elected by the members of the Exchange, and as a large majority desire a dissolution they elect a committee in favor of that course. In the spring of 1886 the-trustees prohibited calls of merchandise and refused to furnish standards of tea unless they were paid for by subscription, although without them business in tea cannot be successfully done-upon the Exchange. The main reason why sugar was not dealt in is because the sugar business was largely in the hands of the sugar refiners, who refuse to deal on the Exchange or to purchase sugar bought or sold there. The referee found expressly that it was for the interest of the objecting members, or of those engaged in the tea trade, that the corporation should not be dissolved, and by implication, that it was for the interest of all the others, many-more than half, that it should be dissolved.
    The special term denied the application and dismissed the proceeding upon the that ground the Code does not require a dissolution when it would be beneficial to a majority of the stockholders,, but injurious to a minority, 18 St Eep., 175. Upon appeal to the general term this order was reversed, the report of the referee-confirmed and a decree made, which after reciting that “ it appearing to the court for the reasons stated in the said report of the-referee, that it will be beneficial to the interests of the stockholders and members and not injurious to the public interests, if a dissolution is ordered,” dissolved the corporation,' appointed a receiver of all its property and directed a distribution of the net proceeds among the members in proportion to the amounts paid by them respectively for their certificates of membership. 28 SL Eep., 416.

      Frank F. Blackwell, for app’lt; John Proctor Clarke, for respis,.

       Affirming 28 St. Rep., 416.

   Vann, J.—The

question presented bv this appeal is whether the court has power to dissolve a corporation organized as an Exchange, when it is solvent but doing no business owing to diverse interests-of its members, upon the petition and consent of a large majority of its trustees and members, in opposition to the wishes of a small minority of both? Whether courts of equity have inherent power to dissolve corporations, as has been held in some jurisdictions but denied in others, it is unnecessary for us to consider, as the method of effecting corporate dissolution, when prescribed by statute as in this state, is exclusive and must be substantially followed. Verplanck v. Mercantile Ins. Co., 1 Edw. Ch., 84; Kohl v. Lilienthal, 81 Cal., 378; Spelling on Private Corporations, § 1008.

The earliest legislation upon the subject to which our attention has been called is an- act passed in 1817, which authorized the ■dissolution of incorporated insurance companies, provided the directors, or a majority thereof, presented a petition stating, among ■other things, that they deemed it necessary or beneficial to the interests of the stockholders, and provided also that no sufficient ■cause against dissolution should be shown to the chancellor, “ he having due regard to the interests of the stockholders and all persons interested.” Laws of 1817, chap. 146, §§ 1-4.

The Revised Statutes authorized the court of chancery to dissolve any corporation, with certain exceptions not now material, upon the petition of the directors, trustees or other officers having the 'management of its concerns, or a majority of them, provided it was either insolvent, or if for any reason a dissolution thereof would be beneficial to thé stockholders and not injurious to the public interest. 3 R. S., 6th ed., 752, §§ 73-80.

In 1876 the supreme court was authorized, “in its discretion,” to dissolve any corporation organized under the Manufacturing Act, provided the trustees consisted of an even number of persons, ■.and they were equally divided as to the management of its affairs, and provided that one-half of the stockholders favored the course ■of one division of the trustees, and the other half that of the other. Laws 1876, chap. 442, o p. 474. No ground of action was prescribed, and the power was to be exercised at the discretion of the court. The statute now regulating the subject consists of •§§ 2419-2432 of the Code of Civil Procedure, upon which this proceeding was founded. It applies to all corporations created by or under the laws of this state, except those of a" religious, educational, municipal or political character. § 2431. The proceeding may be commenced by the petition of a majority of the directors, trustees or other officers in control if the corporation is insolvent, or if for any reason the- petitioners deem it beneficial to the interests of the stockholders that it should be dissolved. Sec. 2419. If the trustees and stockholders are equally divided in respect to the. management, one or more of the trustees or directors may present the petition, but this clause does not apply to savings banks, trust, safe-deposit, railroad, banking or insurance- companies. Sec. 2420. Upon the presentation of a petition showing these jurisdictional facts,.as well as some others relating to the ■condition of the corporation, certain courts are authorized to issue and publish an order .to show cause, and upon the return thereof to hear or refer for hearing- the proofs and allegations.of the parties, and to make a final order dissolving the corporation, if it appears to the court that it is insolvent, or that for any reason a dissolution ” thereof “ will be beneficial to the interests of the stockholders, and not injurious to the public interests." Secs. 2421 to 2430.

The history of legislation upon the subject shows that prior to 1876 it was the policy of the legislature to authorize the courts to act upon the petition of a majority of the trustees, but the basis of action, except in the case of insolvency, was the interest of the stockholders. Division of opinion on the part of the trustees as to business policy does not appear to have been recognized by the legislature as an element requiring attention, until they provided by the act of 1876 that if the trustees and members were equally divided “ as to the management of the .affairs of the corporation,’’ the application to dissolve might be made by “ the trustees, or any or either of them.” This feature is reproduced by § 2420 of the Code, and it indicates that in the ■opinion of the legislature dissension as to .the management, especially when it might result in a deadlock so that business -could not be done efficiently, was sufficient to authorize action by the courts. Where, however, a majority of the trustees favor ■dissolution “ for any reason,” whether relating to the management ■or not, and it appears that “ for any reason ” a dissolution “ will be beneficial to the interests of the stockholders, and not injurious to the public interests, the court must make a final order dissolving the corporation.” Sec. 2429. As it is not claimed' that the public interests are here involved, the only question is whether the facts permitted the conclusion that a dissolution would benefit the stockholders.

In this case the members were the stockholders, as they owned the stock, but for convenience permitted the trustees to hold it «ex officio. The statute, moreover, as amended in 1884, provides for the case of corporations that have no stockholders, but simply members. Sec. 2431. As to what would be beneficial to the interests of the stockholders, it is clear that the opinion of a majority ■of the trustees, who are presumed to represent the wishes of a majority of the members, is of primary importance, because it is •essential to the jurisdiction of the court and must be set forth in the petition. Secs. 2419 and 2429. The legislature doubtless thought that the stockholders would be the best judges as to their own interests, and that if there was a difference of opinion the judgment of the majority would be more apt to be right than that of a minority. This case, however, is peculiar, because the interest of the stockholders was not uniform. The object of the Exchange was so broad as to include several diverse interests, so that while the dealers in one commodity would make, the other dealers would lose by its continuance in business. Under these circumstances, would a dissolution be beneficial to the interests of the stockholders, within the meaning of the statute? The benefit meant is a pecuniary benefit, either direct or indirect. The Exchange cannot be carried on so as to be of material use to any one without the annual expenditure of a large sum of money, to be taken from the surplus or raised by compulsory assessment, as me by-laws provide. Is it to be expected that the majority,, having full control of affairs, will conduct the business efficiently at an actual loss and without any benefit to themselves ? The history of the corporation in question shows that while it maintains its organization, keeps open rooms and furnishes some facilities for the transaction of business, they are utterly inadequate to-an effective exchange, and that as now conducted it is of no appreciable benefit to any one. It is practically a failure, because, owing to diversity of views and interests, it does not accomplish, the object for which it was formed.

Is there any reason to expect an ■ improvement if this proceeding- is" dismissed ? None, in the nature of affairs, because the majority will not and cannot be compelled to tax themselves to-the extent necessary to maintain an adequate and useful exchange. If they can be forced. to maintain an exchange, they cannot be-forced to maintain an efficient exchange, as they can lawfully refuse to raise or expend enough money for that purpose. -If they see fit to reduce expenses by hiring cheap rooms, furnishing poor .facilities, dispensing with cable telegrams and reliable tea. standards, both of which cost a good deal, the law cannot interfere, because it has committed control of such matters to the trustees elected by the votes of a majority of the members. So-action in state and legislative matters, daily calls of merchandise,.the making and enforcement of rules to settle disputes, establish, warehouse charges and govern the issue of tea certificates, together with all of the benefits accruing to the tea merchants from an enterprising exchange, are necessarily under the control of the-majority, who cannot be compelled to be liberal, zealous or wise. All questions relating to the management, that call for the exercise of judgment or discretion, must be decided by the trustees or members, acting through a majority. Hence, an association that is useful to one class of its members, but injurious to another, will.be useless to both, as long as the latter is in control.

We think that when the interests of the stockholders of a corporation are so discordant as to prevent efficient management, and a large majority of both trustees and members wish to wind up its affairs, a dissolution thereof will be beneficial to the interests of the stockholders, because the object of its corporate existence cannot be attained. Re Niagara Ins. Co., 1 Paige, 258; Re Woven Tape Shirt Co., 8 Hun, 508; Webster v. Turner, 12 id., 264; Denike v. N. Y. & R. Lime & Cement Co., 80 N. Y., 599, 605; 2 Beach on Private Corporations, § 781; 1 Morawetz on Corporations, § 413; 2 Waterman on Corporations, § 420; 2 Spelling on Corporations, § 1012.

Hnder such'circumstances, it is better for all that a dissolutioni should be ordered, so that the minority may reincorporate upon some more practicable basis if they -so desire, and the majority-may no longer be forced to keep up a feeble and useless organization in which they take no interest, and from which they derive no benefit.

We are of the opinion that the determination of the learned judges of the general term was right, and that their order should be affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Henry W. Embler, Resp’t, v. The Town of Wallkill, App’lt.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Negligence—Highways.
    Plaintiff, while riding on a load of hay along one of defendant’s highways with his hack to the driver, was swept to the ground by the limb of an overhanging apple tree and injured. Plaintiff had occasionally travelled this highway but never with a load of hay, and never had had occasion to observe how low the branches hung or how far over the beaten track they extended. Held, that whether plaintiff was guilty of contributory negligence was a question for the jury.

      3. Same—Parties.
    After the commissioners of the town of Wallkill were elected, the city of Middletown was incorporated embracing a part of said town. Held, that said city was not a necessary party defendant in an action against the town for the neglect of the commissioners.
    (Haight and Landón, JJ., dissent.)
    Appeal from a judgment of the general term of the supreme •court of the 'second judicial department, affirming a judgment •entered bn a verdict.

      William F. O'Neill, for resp’t; William Vanamee, for app’lt

       Affirming 32 St. Rep., 700.

   Follett, Ch. J.

The action was brought to recover damages for personal injuries sustained by being swept from a load of hay to the ground by the limbs of an apple tree which overhung the public highway extending from the village of Circleville, in the town of Wallkill, to the city of Middletown, formerly part of-the -same town. Circleville is about five miles northerly of the city of Middletown, and they are connected by this highway, which is one of the principal ones leading to and from the city. February 20, 1889, the plaintiff was drawing a load of hay from Circleville to Middletown by a team driven by Emmett Travis. The day was •cold, the highway icy, rough with deep wagon ruts and narrow at the place of the accident. About a mile south of Circleville there was an old apple tree, the trunk of which stood from eight to thirteen feet from the west side of the travelled track. The plaintiff was riding on the right hand side of the load with his back to the driver when he was brought against a limb of the tree. One of the highway commissioners testified that the limb by which the plaintiff was struck was but four feet from the center of the road and that it was but seven feet from the center of’the road to the ditch on the east or opposite side of the highway.

At the close of the plaintiff’s case the defendant moved for a non-suit on the sole ground that the plaintiff and his driver, by their negligence, contributed to the injury. The motion was denied and the defendant excepted. At the close of the evidence this motion was renewed upon the same ground and upon the further ground that the town of Wallkill was not solely liable, for the damages, which motion was denied and the defendant excepted. In discussing the question whether the commissioners of highways-were guilty of negligence, the court said: “ Notice must be proven of the existence of the obstruction a sufficient length of time from which a jury can say a commissioner ought to have. known it. Now it is pothing of any consequence that thousands passed there without injury. If this obstruction existed so long that a vigilant officer should have known of its existence, they are liable because they didn’t know. They should have known as public officers if it existed so long that a jury could say to them, ‘You should, have known it.’ ” -

At the close of the charge, defendant’s counsel asked the court to instruct the jury “ that the jury have a right to take into consideration the circumstance that people driving on' loads of hay had passed under this tree without difficulty,” in determining whether there was sufficient to charge the commissioners with notice of the alleged defect. To this request the court replied: “ It might be some evidence.” Defendant’s counsel also asked., the court to charge that the' jury, have a right to take into consideration the circumstance that no complaint was made to the-commissioners in determining whether they were charged with notice of the alleged defect. The court replied: “Yes, I will charge that.” The counsel then excepted to the sentence, “Now it is nothing of any consequence that thousands passed there without injury.” This remark was made while discussing the negligence of the commissioners, and the court very clearly gave to the-fact that many had passed the tree without injury all of the probative force that it was .entitled to on this' issue. Whether the-evidence of negligence on the part of the commissioners was sufficient to authorize the submission of the question of' their negligence to the jury is not presented by any exception. The only-question presented by this record is whether the plaintiff, by his-own negligence, or by that of his driver, contributed to the accident.

The defendant now insists that the tree having stood for so-many years”in this position, with its limbs overhanging a portion at least of the traveled part of the highway, that it was contributory negligence on the part of the plaintiff not to have known of it and avoided it. The record shows that the plaintiff had occasionally traveled this highway, but never before with a load of hay, and he testified that he never had had occasion to observe how low the branches hung or-how far over the beaten track they extended. The defendant has three commissioners of highways,, all of whom gave evidence to exculpate themselves from the charge of negligence. Daniel W. Shaw testified that he had been commissioner for ten years or over, lived within a mile and a half of this tree, but never noticed that its branches overhung the road. Charles E. Gardner testified that be was one of the commissioners at the time of the accident and had been for twelve years, but had never known of any difficulty about the treé. Henry W. Dunning, the third commissioner, testified that he had been in office six years and' did riot know that any person had difficulty in passing the tree with loads of hay. Notwithstanding this evidence that danger was not obvious to those whose duty it was to see and guard travelers against it, the defendant insists that the danger was so apparent that it should be held as a matter of law that the plaintiff and his driver were guilty of contributory negligence in not seeing and avoiding it, and that it was error to submit to the jury the question of contributory negligence. The position that whether the plaintiff and his driver by their negligence contributed to the injury was a question, of law for the court and not a question of fact for the jury, cannot be sustained.

The point is made that the city of Middletown should have been joined as a party defendant. June 9, 1888, chap. 535, Laws 1888, the city of Middletown was incorporated. Before that ■date the town of Wallkill embraced the territory which at the time of the accident was, and since has been, within the limits of the city. Before the act incorporating the city was passed the three highway commissioners, for whose negligence the town is sought to be held liable, were elected by the electors of the town,, including those who resided within the present limits of the city.

It is ' urged that because the electors who resided within the territory which now forms part of the city participated in the ■election of the three commissioners, that the city is jointly liable with the town for their neglect. This point is without foundation. At the time of the accident the defendant was duly incorporated and its limits have not since been changed and the town is liable for the neglect of its commissioners, no matter how they were chosen or appointed. They were the legal highway officers of the town and the fact that they were elected by voters not now voters of the town has no effect upon the liability of the defendant

The judgment should be affirmed, with costs.

All concur, except Haight and Landon,.JJ., dissenting.