author: Lamb, R.

text:
    In the Matter of the Judicial Settlement of Meta Kane Cruger, as Administratrix of Edith Brevoort Bell, Deceased.

      (Surrogate’s Court, New York County,

      Filed June, 1895.)

    Distribution — Half-blood.
    Where a decedent leaves as her next of kin her mother and a half-sister, the half-sister will take equally with the mother in decedent’s personal estate.
    Judicial settlement of the accounts of the administratrix.

      Stearns & Curtis, for administratrix; William H. Hamilton, special guardian, for Angele Cruger,
   Lamb, R.

— This is a voluntary accounting by Meta Kane Cruger, administratrix of the goods, chattels, and credits of Edith Brevoort Bell, deceased. The account filed discloses a personal estate amounting to $51,125.13, against which the accountant has credits of $5,137.57, and claims for herself the entire residue. The -only parties interested in the estate of the decedent are two,- — the accountant, Meta Kane Cruger, the mother of the decedent, and Angele Crugér, a daughter of the accountant and a sister of the half blood of said decedent Angele Cruger is an infant, and is represented upon this proceeding by her special guardian, and he has .filed objections to said account.N These objections relate to two items of disbursements made by the accountant, and to the latter’s claim to be entitled to the entire residuary estate.

1. As to the items of disbursements objected to, these are (1) an hotel bill of $100, claimed to have been paid by the accountant to the proprietor of the hotel where the death of the decedent occurred, and (2) a physician’s bill of $210, paid for medical services to the decedent, rendered her prior to her death. Neither of these payments is supported by any voucher whatsoever, though it appears from the testimony of the accountant, taken upon comgiission, that such payments were reasonable and proper. Were the allowance of' these items a matter of discretion with the referee, it would be exercised in favor of such accountant, but the language of the statute (section 2734 of the Code of Civil Procedure) forbids this, and the objections to these items must be sustained.

2. The contention that the infant, Angele Cruger, a sister of the decedent of the halt blood, is not entitled to share in the personal estate of such decedent involves an interpretation of the provisions of the statute of distribution, and presents a question of much importance to both parties. Briefs have been submitted upon the questions raised, and the referee has accordingly examined the statute, decisions, and text-books with some care. It is claimed by the accountant that there is no controlling authority in the state of New York upon the precise question involved. At the outset it is to be noted that the contest relates to specific personal estate of the decedent, as to .which there was no evidence upon the reference that such estate was the proceeds of any inheritance coming to the decedent “by descent, devise, or gift of some one of his (her) ancestors,” viz. land, and the contest is between a mother and a sister of the decedent of the half blood, the only persons interested in said estate. In the opinion of the referee, the infant Angele Cruger is entitled to one-half of the said personal estate, and a decree should be made so distributing the estate, and for the following reasons: The provisions of the Revised Statutes, so far as they bear upon this question (see part 2,. art 3, p. 97; Rev. St. [7th ed.], p. 2304), are as follows:

“Section 6. If the deceased shall leave no children, and no representatives of them, and no father, and shall leave a widow and a mother, the moiety not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters ; and if there be no widow, the whole surplus shall be distributed in like manner to the mother and to the brothers and sisters, or the representatives-of such brothers and sisters."
“Sec. 8. If the deceased leave a mother, and no child, descendant, father, brother, sister or representative of a brother or sister, the mother, if there be a widow shall take one moiety and the whole if there be no widow."
“Sec. 12. Relatives of the half blood shall take equally with those of the whole blood in the same degree; and the representatives of such relatives shall take in the same manner as the representatives of the whole blood.”

The accountant contends that, as there is no' relative of the whole blood of equal degree (the second) with Angele Cruger, a relative of the half blood, and that as the rights of relatives of the half blood are only specifically and expressly mentioned in section 12, which, it is contended, only contemplates a case where there are both relatives of the whole blood and relatives of the half blood, Angele Cruger can take no interest in the deceased sister's estate. In other words, it is contended that section 12 is not applicable to the case at bar. I will assume for the sake of argument that this is so, and we are thus left to ascertain whether Angele Cruger has any rights, irrespective of section 12. The language of section 6 covers this case, in the opinion -of the referee. It is there provided that, when the deceased leaves a mother and sister, in that event the surplus goes in equal shares to them. Is the infant, Angele Cruger, a sister of the decedent ? Is a sister of the half blood a “sister” in the eye of the law ? This question is to be answered in the light of the recognized policy of the law to provide in the statute of distribution for an equal distribution of the property of the intestate. In the case of Hallett v. Hare, 5 Paige, 315, Chancellor Walworth said, at page 316:

“The rule of law on this subject has not been altered by the Revised Statutes. It has been considered as settled; ever since the decision of the house of lords in Watts v. Crooke, Show. Parl. Cas. 108, that in succession of personal estates, relatives of the half blood, in equal degree of the cognation to the intestate, take equally with relatives of the whole blood, and that they also take by representation, where representation would be allowed among relatives of the whole blood, of the same degree. See Id. 2 Vern. 124 ; Burnet v. Mann, 1 Ves. Sr. 156 ; Harris, Just. 370, note ; 1 Strahan, Domat. 658. That brothers and sisters of the whole blood and the half blood are viewed in the same light, and as equally next of kin in respect to the distribution of personal property, is apparent from the language of courts and j uoges from the earliest time down to the present.”

In Brown v. Farndell, Garth. 51, the report reads :

“ The case was, one Brown (who was the brother of the whole blood to the plaintiff, Brown) died intestate and without issue, and the wife of Farndell, one of the defendants, was his sister of the half blood, and administration of all of the goods of the intestate was committed to Brown, the plaintiff; and afterwards, within the }rear, after the death of the intestate, and before any distribution of the goods, etc., the wife of Farndell died, and thereupon he libeled, in the spiritual court (before Dr. Shore), to have letters of administration granted to him of part and share of the goods of Brown, the intestate, which belonged to his wife, in her lifetime, as his sister of the half blood, according to the distribution of intestates’ estates, and thereupon Brown moved for a prohibition; and a rule was made for a prohibition, and that the plaintiff should declare upon it to have the matter in law come in judgment. And, accordingly, Brown (the plaintiff) declared and set forth all this matter, and the statute of distribution of intestates’ estates, and particularly that paragraph by which the manner of distributions among collaterals is directed, and also that paragraph by which it is enacted that no distribution shall be made till a year has fully expired after the death of the intestate, and, moreover, suggested that the construction of the statutes belonged to the king, in his temporal courts, and not to the spiritual court, and that the defendant, notwithstanding, etc., had proceeded there, etc. And upon a demurrer to this declaration, two points were made, argued, and adjudged: (1) Whether the sister to the half blood to the intestate would have an equal distribution with the brother of the whole blood. And it was adjudged that she should, for the words of the statute are, ‘ To every of the next of kindred of the intestate, who are in equal degree,’ and the sister of the half blood is in equal degree of kindred to the intestate with the brother of the whole blood, for the one is his sister and the other his brother. No difference is made between the whole blood and the half blood in the distribution of intestate’s personal property.”

See note to Bl. Comm. (Sharswood) bk. 2, p. 56. In Smith's Case, 1 Mod. 209 (decided under statute of 22 & 23 Car. II.), the entire report reads:

“ A man dies, leaving issue by two several venters, viz. by the first three sons, and by the second two daughters. One of the sons dies intestate; the elder of two surviving brothers takes out administration, and Sir Lionel Jenkins, judge of the prerogative court, would compel the administrator to make distribution to the sisters of the half blood. He prayed a prohibition,- but it was de nied upon advice by all the judges, for that the sisters of the half blood being a kin to the intestate, and not in remotoire gradu than the brothers of the whole blood, must be accounted in equal degree."

The language of the text-books is to the same effect. In Rem-sen on Intestate Succession in New York, the author’s views on this subfect are thus expressed:

"Relatives of the half blood take real and personal estate equally with those of the whole blood in the same degree, except when real estate comes to the intestate by descent, devise or gift immediately from some one of the intestate’s ancestors.”

In Woerner’s American Law of Administration, at page 143, it is said:

“ Under the artificial system of the common law, collatetal kindred of the half blood were entirely excluded from the inheritance of land,’while in the distribution of the personalty no distinction is recognized between brothers and sisters of the whole blood and those of the half blood, for they (the half blood) are of the kindred of the intestate, and only excluded from inheritance of land upon feudal principles.”

In Toller on Executors, it is said, at page 383 :

“ If an intestate leaves a deceased brother's only son and ten children of a deceased half sister, the ten children of the deceased half sister shall take ten parts in eleven with the son of the deceased brother.”

The adjudications in the other states having statutes similar to that of New York state are to the same effect.

In Prescott v. Carr, 29 N. H. 453, Eastman, J., said, at page 459:

“ After a careful consideration of this case, we entertain no doubt that, independent of the special provisions of the second statute, there is no distinction to be made between brothers and sisters of the whole and the half blood.”

In the state of Arkansas whose statute is taken from that of New York, it was held, in a case where, as here, there was no next of kin in equal degree with'the relatives of the half blood, but the said relatives of the half blood, constituted all of the next of kin, that they took the whole of the intestate’s personal property. In Kelly's Heirs v. McGuire, 15 Ark. 555, at page 596.

The law in the state of Tennessee is thus expressed : “ The whole and half blood have, however, equal rights in all cases.” See Pritchard, Wills and Administration § 775. See also Kyle v. Moore, 3 Sneed, 183.

The Civil Code of Dakota (section 737) provides that kindred of the half blood inherit property equally with those of the whole blood in the same degrse, unless it comes to the intestate by descent, devise or gift of some one of his ancestors, in which case all of those who are not of the blood of the ancestor must be excluded

In view of the foregoing, the law appears to be that the interest of Angele Cruger in the estate of the decedent is precisely the same as it would have been had she been a sister of the whole blood of said decedent. Were this question one relating to lands descending from the decedent’s father, the answer would be entirely different. The statute of decent of New York state expressly excludes brothers and sisters of the half blood from the inheritance coming to the intestate on the part of an ancestor not of the blood of such half blood. The language of the statute of descent is as follows (Rev. St. pt. 2, chap. 2, p. 753, § 15; Rev. St [7th ed.] p. 2212):

“ Relatives of the half blood shall inherit equally with those of the whole blood in the same degree ; and the descendants of such relatives shall inherit- in the same manner as the descendants of the whole blood ; unless the inheritance came to the intestate by descent, devise or gift of some one of his ancestors ; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.”

In such a case the language of the court of appeals in Wheeler v. Clutterbuck, 52 N. Y. 67, would apply. Obviously, as in this case only personal property is involved, the provisions of the statute last cited have no application.

For the reasons given the objections to the two items above mentioned should be sustained, and the residuary estate herein should be distributed one-half to the accountant and one-half to the infant, Angele Cruger.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Clara Whiteman Gibbs, as Administratrix, etc., App’lt, v. Flour City National Bank of Rochester et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Execut or — Assets—Tbansfeb.
    A bona fide purchaser of assets, wrongfully transferred by an administrator, takes good title, where he was ignorant that the administrator’s act was wrongful.
    Appeal from a judgment, dismissing the complaint on the merits.
    The opinion of Mr. Justice Yeoman at special term is as follows:
    Among the assets of the estate of Reuben Whiteman, deceased, was a policy of insurance issued by the defendant the Equitable Life Assurance Society of the United States upon the life of his wife payable to him. His widow and son were appointed his executors. While holding this office the widow, as executrix, made a formal assignment of this policy to the wife of the son. Thereafter the assignee surrendered the policy to the company, and received in return a like policy on the same life, payable to herself. At that time she was indebted to the defendant the Flour City National Bank of Bochester upon her note, indorsed by her husband. The note became due, and the bank declined to renew it without further security. She then, to procure the renewal, offered to assign this policy as collateral for that debt, which offer was accepted. The note was renewed, and shortly thereafter the policy was assigned as collateral. Thereafter the note was renewed several times, relying upon such collateral. After these transactions the executors were removed and this plaintiff appointed administratrix with the will annexed. She asks for a judgment canceling the second policy, reinstating the first one, and adjudging that she owns it as part of the assets of the estate which she represents. Whether or not anything was paid to the executors for the assignment is a disputed question in this case. Let us assume that no consideration was paid. It is not claimed that the insurance company is chargeable with any actual notice of any defect in the title of the assignee of the executors, nor that the bank had actual knowledge that there was any defect in her title to the policy which it received, or that its ownership by her was in any manner connected with the estate of the deceased. The plaintiff claims that she has a right to have the first policy reinstated,-even if there is no right to cancel the second policy. She attempts to invokes the rules of law which govern the grantees of trust property when the grant is in contravention of the trust and the graatee has knowledge of the trust. These rules are not applicable here. It is true that the insurance company knew that the policy was a part of the assets in the hands of these executors. It was, however, their right to sell and assign it. The sale was not in contravention of the trust which they held, but a step in its execution. It did not devolve upon even the purchaser to see to it that the consideration was applied to the purposes of the trust, much less was it incumbent upon this company to inquire as to whether or not the executors were doing their duty with reference to the consideration when they made the transfer. When a proper formal assignment from them was presented to the insurance company, and there were no facts to create suspicion and so put on inquiry, it had a right to rely upon the legality of that document, and the executors and all persons represented by them are estopped from questioning it to the prejudice of the insurance companjn The plaintiff, therefore, can get no relief as against the company, unless she can cancel the second policy. It is not claimed by the insurance company that it will be prejudiced by reinstating the first policy if the second is canceled. If no consideration was paid for the assignment from the executors, their assignee cannot hold the second policy as against their successor. Does the bank stand in any better position than she does? There was nothing to put the bank upon inquiry as to the character of the title of its assignor. That she had title is, of course, not questioned. The plaintiff claims the right to set that title aside because of the fraud on the estate in transferring the policy, as she claims, without a consideration. This she cannot do against one who acquired the property bona fide from the owner. In Voorhis v. Olmstead, 66 N. Y. 116, the New York Warehouse and Security Company, one of the defendants loaned money to Biddle & Co. upon their agreement to deliver as security warehouse receipts for cotton, for which they had contracted, but which they did not then own. Thereafter the receipts were delivered. Biddle & Co. had not in fact acquired a valid title to the cotton, and became insolvent in a few days. It was held that the pledgee could not support its lien against the real owner; because “ had not the company obtained the warehouse receipts they might have resorted to some process for the recovery of their loan or other indemnity against the loss. It was not necessary in the present instance, for the pledgee of the property to show that a demand of the money loaned would certainly have resulted in its recovery. It is enough that its position was altered by relying on the evidence of title furnished to Biddle & Co. by the plaintiffs and abstaining from action.” It has often been held that an extension of the term of credit upon a past-due debt is a good consideration to support a new contract. I am of the opinion that the bank has a right to hold the policy.
    The complaint should be dismissed upon its merits.

      Scott & Reed, for app’lt; Joseph S. Hunn, for resp’t Flour City Nat. Bank; John R. Strang, for resp’t Equitable Life Assurance Soc.
   Per Curiam.

— Judgment affirmed, on opinion of Yeoman, J., at special term.


author: Hardin, P. J.

text:
    Edward J. Patterson, as Administrator, etc.. Resp’t, v. City of Binghamton, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1 Condemnation proceedings — Award—Distribution.
    Under the charter of the city of Binghamton, the city may, where the right to the award is disputed or doubtful, pay the amount to the county clerk, even though the name of the owner alone is used in the condemnation proceedings and award.
    3. Same.
    In such case, the money must he obtained by application to the court, and not by an action against the city.
    Appeal from a j udgment in favor of plaintiff.
    This action was commenced on the 17th day of August, 1892. The complaint alleges that Edward J. Patterson and Jennie Patterson were the owners of a parcel of land situated on the East side of Water street, in the city of Binghamton, in the year 1891; that the defendant, a municipal corporation, about May 13, 1891, instituted proceedings in pursuance of its charter to lay out and open through the premises a public street, 50 feet wide, known and called an extension of Henry street; that thereafter it was determined that said public street should be laid out over a portion of said land, and that it was so laid out prior to October 27r 1891; that a commission was appointed by the county court of Broome county to ascertain the damages to the land for the laying out of the street; and that subsequently, and on the 27th of October, 1891, an award in writing was made to the plaintiffs by the commissioners, awarding as damages for the laying out of the. street the sum of $6,270. Plaintiffs were to deduct the sum of $100 if they elected to remove a building on said lands. It is. alleged that the plaintiffs did so elect, and that the award became effectual and final on the 6th of November, 1891. Defendant, in its answer, admits that the plaintiffs were owners and in possession of the land described in the complaint, subject to certain mortgages and incumbrances, which are stated ; and that in May, 1891, proceedings were instituted in pursuance of the charter to-lay out and open over and through a part of the lands a public street. It also sets up that on the 5th of June, 1888, Jennie Patterson and Edward J. Patterson executed a mortgage to Charles Jehlager and another covering the lands mentioned in the complaint, which was recorded, and that the same was on the 26th of December, 1890, by the owner thereof, assigned to the-Binghamton Trust Company, and its assignment was recorded on the 11th of September, 1891; that on the 12th of September, 1891, the owner of the mortgage commenced an action to foreclose the same, and a lis pendens was filed in Broome county clerk’s office, and that the plaintiffs in this action were made parties to that action that a judgment was thereafter had directing a foreclosure and sale; and that, in pursuance of the decree, the premises were soldi on the 6th day of February, 1894, including the premises described in the complaint, to one F. W. Downs, for $6,525. A deed was executed by the referee to him; and it is alleged that he became entitled lawfully to and “ seised of all the estate, right, title, and interest, as well as all right and title to the award alleged in the complaint.” It is alleged also that the surplus ($3,774.88) was paid over to the treasurer of the county, and that, in proceedings for distribution, the same was applied on several liens that had attached to the premises to a considerable extent, “ and a balance of several hundred dollars, remaining after such distribution, was duly paid to and excepted by the plaintiffs herein, who 'well knew and understood that such proceedings and payment deprived them of all right, title, and interest in or to the premises described in the complaint, for which it was alleged the said award was made, and of all right or interest in or to the said award.” The trial court found that the city of Binghamton was not made a party to the foreclosure action, and, at the time the foreclosure action was brought, the Binghamton Trust Company knew of the proceedings then pending to lay out and open Henry street extension through the Patterson property. The trial court found as conclusion of law, viz.: “That the said award did not' pass to the purchaser of the premises on the said foreclosure sale; that the plaintiff is entitled to a judgment against the defendant for the amount of said award, to wit, $6,170, with interest thereon from December 1, 1891.” Exceptions were filed to the decision. Jane Patterson died after the action was brought, and the claim of Edward J. was assigned to her administrator.

      A. & A. W. Cummings, for app’lt; Edward K. Clerk, for resp’t.
   Hardin, P. J.

— Chapter 214 of the Laws of 1888 contains the charter of the city of Binghamton, and in the seventh title sundry sections are found relating to proceedings to open streets. Defendant, under those several sections,i instituted its proceedings to open Henry street extension. Section 4 defines to' considerable extent the duties of commissioners appointed to appraise the damages to be awarded to parties whose lands or interests therein are taken in virtue of the proceedings. In the language of that section, it is said:

“They shall ascertain and award to the respective owners of property to be taken, and to all persons or corporations interested therein such damages therefor (deducting the benefits to the adjoining lands) as in their opinions .shall be a just compensation to them respectively.”

This language, in connection with the general provisions found in the statute, seems to suggest that the acquisition is to be made of all the property rights of the owners, and that the award to be made is to be in compensation, not only for the principal ownership, but to compensate “ all persons interested therein.” At the time the award was made, the persons holding the mortgage and other liens upon the property were interested therein ; and, although not in form made parties to the proceeding by name, it is to be supposed that, the proceedings being of a public character, and the notices being required to be published prescribed by the statute, the persons having interests in the property were appraised of the proceedings; and, although they did not in form appear, it is to be presumed that it was the duty of the commissioners to ascertain and determine the extent and value of the respective interests taken or affected by the condemnation proceedings.

In section 10 it is provided that:

“ Immediately after the final determination of all proceedings in which any award shall have been made, the common council shall cause to be paid or tendered to the respective owners the amount awarded to each respectively.”

We think this language, construed in connection with the language found in section 4, which we have just quoted, indicates that all persons interested in the premises sought to be acquired are interested, and ought to be assumed to be interested, in the distribution of the award, which is intended to work a cancellation or extinguishment of the ownership or interest in the property acquired. Defendant’s common council did not comply immediately with that part of section 10 which we have just quoted, by paying to the owners of the fee, or to the persons interested in the premises by way of liens, the amount of the award. After the fund was raised by the defendant for the purpose of liquidating the award, it was not immediately paid over, as a dispute arose as to what parties were properly entitled to it. It was claimed by the plaintiff in this action, as well as by the purchaser of the premises, or his assignee, under the mortgage sale. Apparently, the section undertakes to provide for a case where a dispute arises as to the proper parties to receive the award; and in the subsequent language of section 10 it was provided that if for any reason the owner shall refuse to receive "the same, or to be incapacitated from receiving the amount, “ or the right thereto be disputed or doubtful, the common copncil may make payment of such amount to the office of the clerk of the county of Broome, as ■clerk of the supreme court.” This part of the statute seems to contemplate that where a dispute or a doubt arises, such as was existing between the parties owning or interested in the premises condemned, it should be within the province of the common council to omit paying to either one of the parties. In the case in hand there was a dispute, and it may be said to have been doubtful whether the owner of the fee or the lienors interested therein should receive, at the hands of the common council, the money that was placed under its power and supervision to compensate for the property acquired through the condemnation proceedings. The common council, finding that the right to the award was disputed or doubtful, was authorized by the section to l> make payment of such amount to the office of the clerk of the county of Broome, as clerk of the supreme court.” The mode of ascertaining the parties claiming-to own the award, or to be interested therein, is provided for in the section. It is made the duty of the clerk “ to make a report to the supreme court at its first, term, special ■ or general, held thereafter in the county, of the amount' thus deposited; * * * .and the supreme court shall have authority, and it shall be its duty at such term of the court, to order the investment of such money or the payment over on the ascertainment of the persons entitled thereto.” It is quite apparent that it was the duty of the common council, as soon as the dispute or doubt arose, to follow the provisions of the statute just referred to; and it is probable that a mandamus would have been allowed to quicken the action of the common council if it was dilatory. It seems that the statute provides for a summary mode of a distribution of the award to the parties lawfully entitled to receive the same. It seems to be the spirit of the statute that the city is not authorized to take possession of the property until complying with the provisions which have just been referred to.

Near the close of section 10 we find the following words:

“ Upon such payment or tender, or payment to the clerk being fully made, the land may be taken by the city, pursuant to the resolution of the common council, declaring their determination to make such improvement, and the said street or other improvement may then be opened, worked or used.”

. Upon complying with this provision of the statute, the defend•ant was authorized to enter into possession of the premises for which the award was allowed. We see no other provision in the charter authorizing expressly the defendant to enter upon the premises sought to be acquired by the condemnation proceedings. It does not seem to follow that because the commissioners omitted to specify in detail to whom the damages awarded by them belonged, under all the facts and circumstances relating to , the property, or because they, in terms, awarded the damages to the Pattersons owning the fee, the rights of the persons interested therein should be ignored or cut off.

In Utter v. Richmond, 112 N. Y. 610; 21 St. Rep. 818, it was said that, where land is taken for public use, the damages awarded take the place of the land in respect to all the rights and interests dependent upon and incident to it, and in the course of the opinion delivered in that case it was said :

“ No doctrine could be more clearly just than that, when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it.”

In the case in hand the land was mortgaged at the time of instituting the proceedings, and remained incumbered by the mortgage. It was upon record, and the defendant and all its officers are presumed to have notice thereof.

In Cassidy v. City of New York, 52 Hun, 359 ; 42 St. Rep. 933, it was said that, where an award is made to a specific person, the city is not bound to pay the award to that person, and thus leave the true owner to his action against such person. The award or fund raised,, by the city to discharge the same stood in the place of the land, and the city, when parting with the fund, would be entitled to take possession of the land. The fund remained for the purpose of satisfying the rights of the owners and lienors upon the land. “ The fund was the product of a paramount proceeding, which cut off overy right, * * * both of owners and incumbrancers, so that there could be neither sale nor foreclosure as to that; and instead there remained an equitable lien upon the proceeds, to be worked out by the court empowered to distribute.” In re City of Rochester, 136 N. Y. 90; 49 St. Rep. 86.

In Gates v. De La Mere, 142 N. Y. 313; 59 St. Rep. 1, it was said in the course of the opinion of Andrews, C. J., viz.:

“ If all the property covered by the mortgage had been taken by the city, the defendant could have made no claim on the award except upon any surplus remaining after payment of the mortgage debt. * * * In law, the final award represented the actual value of the land, no more and no less; and the land was primarily pledged as security for the mortgage, and the priority of lien was transferred from the land to the award, and could not be subordinated to a lien subsequently created by Denninger in favor of the defendant.”

It may be said in equity that the award represents that portion of the land or.the interest therein taken by the condemnation proceedings. Magee v. City of Brooklyn, 144 N. Y. 269 ; 63 St. Rep. 86. Inasmuch as it appears in the case that the common council had directed the payment of the money to the clerk of the county of Broome, as the clerk of the supreme court, and that such payment has been made, it seems reasonable that the plaintiff, if, under the circumstances- of this case, he is advised to make claim to the moneys, should be limited to the remedy prescribed in section 10 of the charter, to wit, an application to the court held in the .county of Broome for directions “ for the payment over on the ascertainment of the persons entitled thereto.”

Inasmuch as the foregoing views, if adopted, lead to a reversal of the judgment, it is not deemed necessary to discuss the numerous questions raised by the defendant as to the validity of the-condemnation proceedings instituted by it, conducted step by step until-it reached the stage where its common council authorized the payment of the money which it had received in liquidation of the assessment made to meet the damages for the taking the lands to open Henry street. Inasmuch as the conclusion has been stated as above, it is not necessary, in order to determine the-right of the plaintiff, to hold the present judgment to authoritatively pass upon the question. Inasmuch as the defendant has been active in instituting the proceedings, and conducting them, and in claiming benefits under them, it may be said under such circumstances, its assertion that the condemnation proceedines are-irregular, does not come to the court with very much grace.. However, we omit to pass conclusively upon the question as to-the validity of the proceedings at this time.

Judgment reversed, and a new trial" ordered, with costs to abide the event.

All concur.


text:
    Binghamton Opera House Company, App’lt, v. City of Binghamton, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Ejectment — Recovery.
    Plaintiff cannot recover in ejectment, where defendant’s possession o£ the premises is lawful.
    Appeal from judgment in favor of defendant.

      A. D. Wales, for app’lt; A. & A. W. Cummings, for resp’t.
   Hardin, P. J.

—Plaintiff seeks to recover possession of the premises described in the complaint, the same being the premises sought to be acquired by the defendant for the extension of Henry street, in virtue of proceedings in condemnation instituted under the charter of the defendant. This action was commenced on the 28th of December, 1892; and in the complaint it is alleged that the plaintiff acquired title, which was theretofore possessed and held by Edward J. Patterson and Jennie Patterson, to the lands described in the complaint, the same having -purchased at a foreclosure sale had upon a mortgage executed by the Pattersons to-Charles Schlager and another, and subsequently assigned to theBinghamton Trust Company, and by it foreclosed. At the sale, Francis W. Downs became the purchaser ; and a few days after the purchase, he transferred his right, title, and interest in the premises so purchased to the plaintiff. The complaint alleges that the defendant wrongfully took possession of the premises on the 12th of December, 1892i and that the defendant still withholds the same from the plaintiff.

The defendant admits instituting proceedings under its charter to acquire the premises for the street purposes mentioned in the complaint, and that condemnation proceedings were conducted ■under the charter, and avers:

“That it did and performed on its part all the conditions necessary and requisite to be performed to acquire the right to use as a street in behalf of and for the city of Binghamton, and that said city duly acquired the right to open, use, and continue said street.”

It also alleges:

“That plaintiff assented to and acquiesced in the taking of the property described in the complaint by this defendant, and in pursuance of a notice theretofore given, took and caused to be removed from said premises the buildings thereon, thereby assenting to the proposed taking by defendant, and lessening the price affixed on said property one hundred dollars.”

The defendant avers, by way of answer:

“That possession of the premises embraced in the extension of Henry street was taken by and with the consent and permission of the plaintiff herein.”

The trial court has, in its findings of fact, stated the conclusions reached upon numerous questions relating to the validity of the proceedings of the defendant to acquire title to the property in question. The trial court has found that there was a dispute as to the award made in the condemnation proceedings in the following language:

“That on the 18th day of August, 1892, the right to receive ' and ownership of the award therein was disputed between Edward J. Patterson and Jennie Patterson on the one part, claiming the same, and the Binghamton Opera House Company, also claiming the right to said award; and by reason of such dispute, and in pursuance of and a resolution of the common council of the city of Binghamton, duly passed and approved by its mayor, as set out in finding twenty-eight, herein, the defendant paid to the office of the clerk of the county of Broome, as clerk of the supreme court, the said sum of $6,170, being said award, which was duly received by said clerk; and defendant, at the time of such payment, accompanied the same with and handed the said county clerk a copy of said resolution, containing the facts and circumstances of the case, and the amount of said award, and such other facts and circumstances as related to the ascertainment of the award.”

We think the finding was based upon sufficient evidence to support the same.

The court also found:

“That soon after the 18th day of August, 1892, and upon and after the payment of the award to the office of the clerk of the county of Broome, the defendant lawfully, and with the assent of the plaintiff, entered upon the land described in the complaint, pursuant to the resolution of the common council declaring their determination to make such improvement and street, and caused the said street to be opened, worked, and used, which was the only possession of the said premises described in the complaint by the defendant.”

The evidence upon the trial discloses the fact that Judge Downs, who purchased the property in behalf of the plaintiff had taken some part in the proceedings instituted by the defendant to open a street across the lands, and had advocated the action of the common council in that direction; and it appears that some surveys were made and monuments were placed and maps made and filed under the resolution of the common council. Some other evidence was given tending to support the conclusion of law that the possession taken by the defendant of and domain exercised over the premises described in the complaint was lawful. It seems to follow that the plaintiff was not entitled to a judgment in ejectment against the defendant. 6 Am. & Eng. Enc. Law, pp. 587, 594.

It seems not improbable that this action was brought more for the purpose of testing the plaintiff’s supposed right to the award in virtue of its acquisition or the title to Mr. Downs, who was purchaser at the mortgage foreclosure sale; and the elaborate argument submitted by the learned counsel for the appellant upon questions relating to the validity of the condemnation proceedings and upon the supposed rights of the plaintiff to participate in the award, need not be passed upon at this time, inasmuch as we have expressed our views in the case of Patterson against this same defendant, at the case heard at this term, which, if adopted, will lead to a solution of some of the questions that are embraced in the argument of the appellant. Besides, all the parties interested are not before the court. Inasmuch as we have reached thfe conclusion that the trial court was warranted in finding that the possession of the defendant was not unlawful at the time of the commencement of this action, we sustain the result there pronounced.

Judgment affirmed, with costs.

Merwin, J., concur. Martin, J., not voting.


author: Parker, J.

text:
    William M. Bender, Pl’ff, v. George Hemstreet et al., Def’ts.

      (Supreme Court, Ulster Special Term,

      Filed June, 1895.)

    Partnership — Power op partner.
    One partner cannot, without his co-partner’s consent, sell all the partnership effects to a third person, not interested as a creditor.
    Motion to vacate an injunction pendente lite.

      James W. Eaton, for pl’ff: Mark John, for def’ts.
   Parker, J.

— The plaintiff, William M. Bender, and the defendant George Hemstreet formed a partnership under the firm name of George Hemstreet & Co. Hemstreet, becoming dissatisfied with the conduct of his partner, which he alleges was of such a nature as to prove detrimental to the business in which they were engaged, sold all the partnership property and effects of every name and nature, to the defendant Johnson, and this he did without consulting with Bender. The effect of this transaction, if legal, was to terminate the partnership and render Hemstreet liable to account to his partner for the proceeds of the sale remaining after the payment of the debts of the firm.

Whether it was legal presents the only question to be considered on this application to vacate an injunction restraining defendants pendente lite from making any disposition of the property and credits of the partnership. As the facts appear from the papers used on this application the transfer made was illegal. The learned counsel for the defendants insists otherwise, and calls attention to-the numerous authorities in this state, from Mabbett v. White, 12 N. Y. 443, to Bulger v. Rosa, 119 N. Y. 459; 20 St. Rep. 678, holding that one partner has authority to sell and transfer all the copartnership effects directly to a creditor of the firm in payment of a debt, without the knowledge or consent of his copartner. But none of them hold that a partner may sell all of the partnership effects to a third party not interested as a creditor, thus practically terminating the partnership. On the contrary, the court in Welles v. March, 30 N. Y. 344, while asserting the propositions that each partner possess equal power and authority to dispose of the partnership property and effects for all purposes within the scope of the partnership, and in the regular course of its trade and business to assign firm property as security for antecedent debts, and to transfer all of the partnership effects to a creditor in payment of debts, nevertheless said, in effect, that aside from these exceptions, the authority of each partner, as the agent of the firm, is limited to transactions within the scope and object of the partnership and in the course of its trade or affairs. Bates, in his work on Partnerships, states the general rule to be that “ the power of sale must be confined to those things held for sale, and that the scope of the business does not include the sale of property held for the purposes of the business and to make a profit out of it.” An examination of the authorities leads to the conclusion that this is a correct statement of the general rule, although not established by the decisions in this state. And we find nothing in the authorities to which attention has been called which pursuades us that tho courts of this state will adopt a different rule when the question shall be fairly presented, as it seems likely to be in this case.

The motion to vacate injunction should, therefore, be denied, with costs.

Motion denied, with costs.


text:
    The People ex rel. William J. Ranton, Resp’t, v. James Doyle et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Mandamus — Elections.
    Clerical errors in the returns, made by a board of election canvassers, may be corrected by mandamus.

    Appeal from an order authorizing an alternative writ of mandamus.

      M. E. Driscoll, for app’lts; L. L. Waters, for relator; Charles E. Ide, for resp’t.
   Hardin, P. J.

— In People ex rel. Stapleton v. Bell, 119 N. Y. 175 ; 28 St. Rep. 960, it was held that inspectors of election are ministerial officers. In People ex rel. Lewis v. Deverman, 83 Hun, 181; 64 St. Rep. 149, it was held that the granting of an alternative writ of mandamus is so much a matter of discretion that it is not the subject of review upon appeal. Following the ease last cited, we think that the appeal from the order, so far as it directs the issue of an alternative writ of mandamus, should be dismissed.

2. The defendant James Dojde also appeals from the order made on the 18th of February, 1895, denying a motion made for an order setting aside and vacating the order, granted at special term on the 31st day of January, 1895, ordering that a writ of mandamus issue out of and under the seal of this court, and for an order setting aside and vacating the writ of mandamus. Upon that motion the defendant Doyle offered to stipulate that the return and certificate of the canvass of votes be corrected by. inserting the word “received” between the words “Doyle” and “sixty-six,” between the words “Ranton” and “fifty-four,” between the words “Maloney” and “four,” between the words “Dee” and “eighty-five,” in said certificate of canvass of votes. The court refused to consider the stipulation, for the reason that the motion was made on papers of relator only. From the affidavits found in "the appeal book it is apparent that William J. Ranton was regularly nominated as a candidate for the office of alderman in the First ward of the city of Syracuse, to be voted for at the special election to be held in that ward on January 29, 1895 ; and it also appears that the defendant James Doyle was a candidate for the same office. According to the return filed in the city clerk’s office at the close of the election, it shows the election of the defendant Doyle to the office of aldermen of said ward over the relator by a plurality of only one vote. The return from the Fourth district are irregular, in that they do not show in any form that any person received any votes whatever. From the affidavits it also appears that at the election a ballot was cast bearing the name of the relator, William J. Ranton, upon the face, and upon its back a paster, of different color from the ballot, which paster bore the name of the' defendant' James Doyle. It also appears that, when the ballot was opened by the inspectors on the canvass of the votes, it 'was objected to as an improper and an illegal vote by the inspector, who called attention to the section of the election law relating to the proper position of posters upon ballots cast at elections, and relating to the color of such posters. It appears the inspectors then laid the ballot aside, and subsequently took it up and counted it for Doyle. After completion of the canvass, Cawley, an authorized watcher for the relator, objected to the counting of the ballot in question on the ground that it was a ballot marked for the purposes of indentification. However, the inspectors disregarded the objection, as they did the other, and counted the ballot for Doyle, who was thereby, upon the face of the returns, elected to the office of alderman of the First ward by a plurality of one vote over the relator. The inspectors did not attach said ballot to their return, but destroyed it with the other voted ballots, and filed their return without any statement concerning it. The board of canvassers were about to adjourn, and declare and determine the result of the election, using for that purpose the defective return in question, among others, when the relator applied for and obtained the alternative writ requiring the board of canvassers and city clerk to send back the returns of the Fourth district to the inspectors for their further action thereon. It is quite manifest that the return is defective, and that the ciencia! errors and other errors may be corrected by means of mandamus. People ex rel. Munro v. Board of County Canvassers, 129 N. Y. 469 ; 41 St. Rep. 930 ; People, ex rel. Nichols v. Board of County Canvassers, 129 N. Y. 406 ; 41 St. Rep. 713.

Section 114 of chapter 680. of the Laws of 1892 contains a provision in relation to marked ballots, requiring the inspectors or canvassers to write on the back of such ballot, “Objected to because marked for indentification,” or words, in substance, to that effect, and sign their names thereto, and attach each of such ballots to the written statement of the result of the canvass. Section 115 of the same act provides that the inspectors shall make and sign a written statement showing, among other things, the whole number of ballots received for each office, and the whole number cast for each person for such office, and the whole number of ballots objected to because marked for identification,- written out at length in words, and at the end thereto a certificate, signed by the inspectors, to the effect that the statement is in all respects correct. It is quite apparent that the inspectors have not complied with the statutory provisions, and we are of the opinion that the defendant Doyle had not the power, by stipulation, to cause the needed amendments made to the statement of the canvassers.

We are of the opinion that the action of the special term was correct, and that its order should be affirmed. The appeal from the order directing the issue of an alternative writ of mandamus is dismissed. Order refusing to set aside the writ affirmed, with $10 costs and dis*busemements.

All concur.


text:
    John Schultze, App’lt, v. Lestershire Boot and Shoe Company et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 6, 1895.)

    1. Costs — Offer of judgment.
    A plaintiff in an action to foreclose a mechanic’s lien, who refuse an offer of judgment, cannot add to the recovery accummulated interest from the time of the offer to the time of recovery, for the purpose of claiming, that the recovery was more favorable than the offer.
    2. Same.
    Section 14, chap. 342 of 1885, applied in harmony with the rule prescribed in section 19 of same act, does not authorize an award of costs to-a plaintiff who refused an offer of judgment, where the judgment, after-wards recovered by him, is not more favorable than the offer, but renders him liable to pay any costs in the action incurred by the owner from the time of the offer.
    Appeal from an order, setting aside the taxation of costs, and directing a retaxation.

      S. Mack Smith, for app’lt; Carver, Deyo & Jenkins, for resp’t.
   Hardin, P. J.

— Pursuant to a contract entered into between the plaintiff and the Lestershire Boot & Shoe Company, the plaintiff performed work, labor, and services, and furnished materials necessary to erect a building, upon the property of the respondent, and after the completion of the building, and on or about the 12th of July, 1892, the plaintiff filed a notice of lien in writing in the office of the clerk of the county of Broome, where said premises were situated, and thereafter commenced this action to enforce the lien. The Lestershire Boot & Shoe Company answered the complaint, and the issue joined was referred and tried, and the referee in this report finds that, January 31, 1894, the defendant Lester-shire Boot & Shoe Company served upon the plaintiff’s attorney an offer “to pay into court the sum of one thousand ($1,000) dollars and interest thereon from the 12th day of July, 1892, in discharge of plaintiff’s lien.” The referee, as a conclusion of law,, found, viz.:

“The defendant, the Lestershire Boot & Shoe Company, is indebted to the plaintiff herein in the sum of $1,000, with interest thereon from July 12, 1892, amounting together at this date to $1,128.33.”

The referee ordered judgment in accordance with the findings,, “with the costs of this action.” Plaintiff, having entered a judgment for full costs, was met by a motion to retax the costs, and to disallow any costs to the plaintiff after the delivery of the offer, and by the claim - of the defendant that it was entitled to costs after the refusal to accept the offer, inasmuch as the recovery had not been more favorable than the offer made by the Lestershire Boot & Shoe Company. If the plaintiff had accepted the offer, he would have received $1.000 and interest from July 12th. By the decision of the referee he received only $1,000 and interest from the 12th of July, and the recovery, therefore, is not any more favorable than the offer. The plaintiff is not entitled to add the-accumulated interest from the time that the offer might have been accepted to the time of the recovery for the purpose of claiming that the recovery is more favorable than the offer.

2. In chapter 342 of the Laws of 1885 it is provided, in section 14, that:

“Costs and disbursements, except in courts not of record, in which they shall be the same as allowed in civil actions in such courts, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defendants, or any or either of them as may be just and equitable except as provided in section 19 of this act, and shall be included in the judgment recovered therein. * * * When an action is brought in a court of record such direction shall be made in the discretion of the court, as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid.”

The general rule laid down in section 14 is to be construed and applied in harmony with the rule which is prescribed in section 19. In turning to section 19, we find it authorizes the owner or owners in writing, to offer to pay into court any amount stated in the offer. It is further provided, in this section :

“If the offer is accepted in writing within ten days thereafter, the court in which the action is pending -may make an order that * * the lien or liens be discharged. *' * * In case the offer shall not be accepted within ten days, and the plaintiff fails to recover any more favorable judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer.”

Applying the rule laid down in section 19, we think it is apparent that, inasmuch as the plaintiff did not recover any more favorable judgment than such a one as was offered to him, he is not entitled to costs subsequent to the time when he might have accepted the offer, and, on the contrary, “he should pay any costs in the action incurred by the owner from the time of the offer.” Hall v. Dennerlein, 39 St. Rep. 67 ; Pfister v. Stumm, 7 Misc. Rep. 526 ; Mull v. Jones, 45 St. Rep. 643; Budd v. Jackson, 26 How. Prac. 398; Johnston v. Catlin, 57 N. Y. 652.

We think that‘^section 14, conferring discretion upon the court as to the costs, must be construed with provisions in section 19. When so construed, it must be assumed that the referee, when he awarded the costs to the plaintiff, only intended plaintiff should receive such costs as he was entitled to under the statute. It was not within the discretion of the referee to assume power to overrule the intention of the statute. Our attetion is called to Wood-ford v. Bucklin, 14 Hun, 444. In that case it was held by this court that, if the referee had exercised his discretion in an equity action, the same could not be changed bv the special term. The doctrine of that case was approved in Rosa v. Jenkins, 31 Hun, 384; Couch v. Millard, 41 id. 215 ; Dilts v. Sweet, 21 N. Y. Supp. 58. In the case in hand the referee had no power to overrule the express provisions of the statute. Chapin v. Churchill, 12 How Prac. 367. In the latter case it was held that the court had no right to disregard the statute relating to costs. It was said, in Cythe v. La Fontain, 51 Barb. 185, the court is not authorized to deal with the question of costs except in accordance with the provisions of the statute.

We think the decision reached at the special term is correct.

Order affirmed, with $10 costs and disbursements.

. All concur.


text:
    Mary Ryan, as Administratrix, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Master and servant — Negligence.
    The failure of a railroad company in properly securing lumber, loaded on a car for transportation, is negligence for which the company is liable to an employe on another train, who is injured in consequence thereof.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Ashbel Green and L. L. Waters, for app’lt; Walter W. Magee and William Kennedy, for resp’t.
   Hardin, P. J.

— On the 26th of August, 1893, plaintiff’s intestate was in the employ of the West Shore Eailroad (operated by the defendant) as a brakeman, and was on train No. 75 going west, when he received injuries from which he died the next day. About a half a mile east of Auriesville, while sitting in the cab ' of the engine, the deceased, it is claimed, was struck by a board projecting from a car loaded with lumber passing east on the adjacent track. The evidence tended to show that a stake was dozy, rotten and imperfect, which passed into a socket on the side of the car loaded with lumber, and that the lumber got loosened, and thus allowed a board to project from the pile, which struck the intestate, injuring him. The board, when examined after the accident, was covered with hair and blood; a piece had been split therefrom, and) subsequent to the accident, near where it occurred, the piece was found, and that was covered with hair and blood. The evidence given by the plaintiff tended to show that the stake was rotten and imperfect, and that by reason thereof the accident occurred. The defendant gave evidence tending to show several inspections of the loads of lumber while the the train was passing eastward, and the nature and character of such inspection. If, however, the stake was rotten and imperfect to the extent described by the witness Parsons, the inspection was inadequate, and the duty of the defendant in that regard had not been discharged, inasmuch as “there was a negligent failure to discover it.” Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302 ; 54 St. Rep. 550; Railroad Co. v. Daniels, 162 U. S. 684. It was the duty of the defendant to provide safe appliances and apparatus for the use of its employes. Provided a decayed, rotten, dozy stake, to hold the binders of the lumber, was not a complianee with the duty the defendant owed its employes. The stakes were necessary to secure the lumber properly while in transit, and if the defendant failed to exercise proper care in respect to their condition, it was chargeable with negligence. Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 374; 12 St. Rep. 9; Dougherty v. R., W. & O. R. R. Co., 45 St. Rep. 154; affirmed 138 N. Y. 641; 53 St. Rep. 929; Redington v. N. Y., O. & W. Ry. Co., 84 Hun, 231; 64 St. Rep. 804.

Upon all the facts and circumstances and evidence disclosed, it was for the jury to determine whether the defendant had discharged its duty in the premises. Doubtless the jury gave faith and credit to the evidence of Parsons. We do not find facts and circumstances, contradicting his evidence, of such a nature and character as to warrant us in setting aside the verdict as unsupported tjy evidence in regard to the question of defendant's negligence, and the intestate’s freedom from contributory negligence. When the trains passed each other they were moving at about the rate of eighteen miles per hour. Under the rules and practices sanctioned by the defendant, as well as the express authorization given by the train master, Ford, for brakeinen to ride upon the engine, we think the jury were at liberty to find that the deceased, at the time of the accident, was not violating the regulations and instructions of the defendant by riding in the cab of the engine.

The trial judge charged broadly that if the negligence of a fellow brakeman caused the injuries, a recovery could not be had, and that the jury must find it was the negligence of defendant solely that caused the injury, and in that case the defendant was liable. The charge seems to have been as favorable as the defendant was entitled to under the evidence. The trial judge refused to charge “ that the evidence does not warrant the inference that the death of plaintiff’s intestate was caused by the defect in the stake or binder on the car fn question.” He had already charged that plaintiff could not recover “ unless the projecting board reached such a position at the time of the accident to have struck Ryan, by reason of the defect in the stake and binder on the car in question.” We think the court properly allowed the jury, after considering all the evidence and circumstances presented, to draw the natural and legitimate inferences therefrom, in determining how the intestate received the injuries causing his death.

Judgment and order affirmed, with costs.

All concur.


author: Harding, P. J.

text:
    Hannah M. Van Epps, Resp’t, v. Gilbert H. Harns, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Appeal — Harmless error.
    The admission of incompetent evidence is harmless error, where the result would not have been different in case such evidence had been omitted.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.
    After the verdict was received, answering two specific questions, the judge holding the circuit found the facts in accordance with the verdict of the jury. The following questions were submitted to the jury: “(1) Has the mortgage executed by plaintiff to defendant, in the sum of $200, bearing date the 1st day of June, 1887, and becoming due and payable on the 1st day of September, 1890, described and referred to in the complaint and answer herein, been paid and satisfied ?” The jury answered this question by-finding, “ Yes.” The second question was as follows: “(2) If the said mortgage has not been fully paid and satisfied, how much remains due aud unpaid thereon at the time of the trial of this action ?” The jury answered this question by finding, “ Nothing.” Prior to the commencement of this action the plaintiff caused to be prepared a satisfaction piece of the mortgage, and waited upon the defendant with an officer capable of taking acknowledgements, and asked him j¡o execute and certify that the mortgage was paid, and he refused. Thereupon this action was commenced, and the issues of fact were brought to trial at a circuit court in Madison county.

      Lyman & Hitchcock, for app’lt; S. M. Wing, for resp’t.
   Harding, P. J.

— Upon conflicting evidence, the jury have found that the mortgage in question was paid. Plaintiff testified it was paid. Her husband supported her, and, to some extent, she was corroborated by her sister, Mrs. Devoe. On the other hand, the defendant testified that the mortgage was not paid, and -called his sister, Lizzie Harns, who gave some testimony tending to corroborate some of the facts and circumstances stated by the defendant in regard to one of the payments. If the jury had believed the testimony of the defendants, and discredited the testimony of the plaintiff herself, the verdict would have been for the defendant. If, on the other hand, the jury had believed the testimony of the plaintiff herself, and discredited the testimony of the defendant alone, the verdict might have been for the plaintiff. In determining where the weight of the evidence was, the jury had a right to consider the testimony of the plaintiff and of the defendant, in connection with the supporting evidence given in behalf of the plantiff found in the testimony of Yan Epps, the husband, and Mrs Devoe, the sister, whose testimony related more particularly to the alleged payment of $100, which was the pivotal question of fact at the trial. We think the weight of the evidence supports the verdict of the jury.

2. It is insisted in behalf of the appellant that an error was committed in allowing the witness Jane Devoe to answer questions propounded to her upon the occasion of the plaintiff’s visiting her brother, when she alleges the $100 was paid. When the question was propounded to her which called for what she saw between the plaintiff and defendant “concerning the payment of money on the mortgage,” she replied, “ Gan I commence at the beginning and tell ?” Thereupon the court remarked, “Yes, and that is the better way.” The witness then stated: “Well, as we drove up they were nearly ready to go home, I think, to their own home, — Mrs. Van Epps and her husband. And we asked them why they need hurry; as we had j ust come, they could stay a little longer. So Mr. Van Epps went to the barn with Gilbert, and she went in, and says, ‘ I have come to see Gilbert about the mortgage.’ ” Alter this answer was delivered, according to the case, the defendant’s counsel objected. Thereupon the court interrupted, “Was that in Gilbert’s presence ?” The witness answered, “Oh, no; it was while lie was at the barn." Then it seems the defendant’s counsel again objected, and moved to strike it out as being incompetent and hearsay, and not in the presence of the defendant Thereupon the •court stated, viz.: “The conversation is incompetent, in that form. You may state, instead of that, that she spoke about paying Gilbert money, — just the fact.” The witness answered, “Well, she did.” Thereupon the defendant’s counsel objected to, and moved to strike out, the answer, upon the ground that it is incompetent .and immaterial, and not in the presence of the defendant. To that objection and motion the court replied: “I will rule and hold that .she may say, as a fact, that the subject of paying Gilbert money was mentioned by Mrs. Van Epps, the plaintiff, there at that time, simply as a circumstance while the defendant was at the barn.” To that ruling an exception was taken, and thereupon the court observed: “Mow, the question is what followed. I will admit it for the purpose of seeing whether it had connection with something else that she saw. Go on, except do not mention any conversation not in Gilbert’s presence. Tell what else occurred after she spoke about the money.” The witness answered, “She said— ” Thereupon the court interrupted her, and said: “Mo; not what she said. Did she speak about seeing Gilbert with reference to the mortgage and some money?" She answered, “She did.” And thereafter there was an objection, a ruling, and an exception. It is now insisted that hearsay evidence was taken, to the prejudice of the defendant. Evidently the court intended to limit — in its ruling— the witness to the introductory fact, with a view of seeing why the witness was able to remember11 what occurred subsequent. Prior to this ruling the plaintiff had been cross-examined by the defendant, and during that examination she had testified, viz.: “ I went to the defendant's that day to pay the mortgage. That is how I happened to go. That was my sole business there. I did not go there to inquire about the funeral, for I didn’t know it until I got there." It seems that this testimony was drawn from the plaintiff as a witness, by the defendant’s counsel. Subsequently the husband of the plaintiff was cross-examined by the defendant’s coun.sel, and during the cross-examination he testified as follows: “My wife went there that day to pay him $100. * * * After supper my wife told defendant she came to pay the mortgage, and he said, ‘All right,’ and she gave him the money, and he counted it In the dining room she gave him the money.” It is thus seen that it was proven by two witnesses that the object of the plaintiff’s visit on the occassion spoken of was to pay the $100 upon the mortgage, and apparently the defendant drew form the plaintiff and from her husband the fact that such was the object of the visit. Ho evidence was given in the progress of the trial tending to indicate any other purpose in making the visit to the defendant’s house, and if the remarks made by Mrs. Devoe as to the object of her visit were stricken from the case, still there would remain the testimony to the effect that the plaintiff visited the defendant on the occasion spoken of for the purpose of paying the-$100 on the mortgage. It is, therefore, difficult to see how the-defendant suffered by the remark made by Mrs. Devoe, that she had reached the house for the purpose of paying the money, even if it were assumed to be inadmissible. Under such circumstances-we are inclined to say that the exceptions taken during the progress of the testimony of Mrs. Devoe do not present prejudicial error which should lead us to disturb the verdict of the jury. We feel “justified in saying that the result” would not have been different had the remark make by Mrs. Devoe been omitted. The rule laid down in Root v. Borst, 142 N. Y. 69 ; 58 St. Rep. 421, near the close of the opinion, does not apply. The rulings were much discussed in an opinion delivered by the special term when the motion for a ney; trial on a case and exceptions was heard, and that court seems to have been of the opinion “that substantial justice does not require that a new trial should be granted.” Code Civ. Proc. § 1003. Under that section, it has been said, the court may disregard errors in the admission of evidence, where substantial justice has been done. Henderson v. Fullerton, 54 How. Prac. 422.

A careful study of the case found in the appeal book has led us-to the conclusion that the verdict and decision are in accordance with the weight of the evidence, and the apparent equity and justice of the case.

Judgment and order affirmed, with costs.

All concur.


text:
    In the Matter of an Application to compel an Accounting by Joseph Rettig et al., as Executors, etc., of Frank Keinz, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Will — Construction.
    Where the provisions of a will authorize the executors to use the income of the testator’s estate, and if need be, the principal for the support aud education of the minor children, the executors have a discretion, as. to the expenditures to be made for the purpose.
    Appeal from a decree, adjusting the accounts of the executors and refusing to revoke their letters ■ testamentary and to remove-them.

      S. M Lindsley, for app’lt; R. W. Mclncrow, for executors; John G. Gibson, special guardian, in pro. per.
   Hardin, P. J.

— On the 31st of October, 1888, the testator •made 'and published his will, in which he named as his executors-Joseph Rettig and F. L. Faass, and also appointed them guardians of his minor children, “and trustees for the purposes of this will and the trust thereby created.” He authorized and empowered the executors “to manage, lease, or sell real estate, * * * and to do all things required to give to the purchaser or purchasers thereof good title thereto.” The will contained the following, viz.: “They to use the income, and if need be, the principal, for or towards the support, education, etc., of my daughter Anna Walba rger Keinz, and of my son George Keinz, until said GeorgeKeinz shall become of the age of twenty-one years, using for each of said children so much thereof as in their or the survivor’s judgment is needed, and not being required to use equal parts for each ; it being my will that my said executors, and the survivor of them, exercise discretion as to what each will be benefited by, and provide or give same to him or her.” .

He also provided that upon the arrival of George at the age of twenty-one years all that remained of the real estate and personal estate and increase of each “ shall be divided between my three children, John Andrew Keinz, Anna Walburger Keinz, and George Keinz, equally, share and share alike.” Under the provisions of the will the executors were also named as trustees, and were authorized to use the income of the testator’s estate, “and if need be, the principal,” for the support and education of the daughter and the son George until he should arrive" at the age of twenty-one years. It was for the executors to use so much for each of said children as in their judgment, or that of the survivor,, should be needed; and they were not required to use equal parts for each. The discretion of the executors conferred by the testator was exercised from time to time, as appears by their accounts and the evidence produced upon the accounting. We do not see that the surrogate has committed any error-in adjusting the accounts. Nor do we think the surrogate erred in refusing to revoke the letters testamentary issued to the executors. The testator understood the capacity of the executors, when he named them, and apparently they discharged their duties, without fraud or bad faith, according to their understanding of their duties, and in good faith. The evidence did not satisfy the surrogate that the objection to the executors was established, and he did not err in refusing to remove them. Code Civ. Proc. §§ 2685, 2687. The surrogate had a discretion, and, being satisfied with the direction he took, we should not disturb his action. MacGregor v. Buel, 24 N. Y. 169; In re Chase, 32 Hun, 320; In re West, 40 id. 291-297 ; affirmed, 111 N. Y. 687; Freeman v. Kellogg, 4 Redf. Sur. 218, opinion by Calvin, S., and cases cited ; Martin v. Duke, 5 Redf. Sur. 599. The executors had a discretion as to expenditures to be made for the support and education of the minor children, and the will declares, “ the income, and, if need be, the principal of the real estate is to be used, in the discretion of said executors, for or towards their support.” The decree declared the minors were entitled to receive their entire support, education, etc., from the testator’s estate, and that their earnings should not be used for that purpose. We think the clause .should be modified so it shall be provided in the decree that the executors and trustees, in their discretion, may use the income, and, if need be, the principal of the estate for the education and ■support of the minor children. The commissions to the executor should be stricken out. The decree is therefore modified to conform to the foregoing views.

Decree modified to conform to the views stated in the opinion, and, as modified, affirmed, with costs to guardian respondents, payable out of the estate.

All concur.


author: Brown, P. J.

text:
    Granite State Provident Association, App’lt, v. Michael E. McHugh, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    -J UDGMENT — CORRECTION.
    The trial court may, by resettling a judgment, correct errors therein caused by inadvertence.
    Appeal from an order, resettling a decree of foreclosure.

      Philip Carpenter, for app’lt; R. McC. Robinson, for resp’t.
   Brown, P. J.

— This is an appeal from an order resettling a decree of foreclosure. McHugh had a mechanic’s lien upon the mortgaged premises, which attached after $10,500 had been advanced on plaintiff’s mortgage. After the lien was filed, other advances were made on the mortgage, up to $15,000. The court decided that McHugh’s lien and his costs must be paid after the plaintiff was paid $10,500 and his costs. By inadvertance, he gave an allowance of $200 to the plaintiff, to be paid before McHugh's lien and costs. The decree, as resettled, corrects this, •and makes the allowance payable after McHugh is paid. This is right. It was discretionary, at all events, with the trial court, and the order should be affirmed, with $10 costs and disbursements. All concur.


author: O’Brien, J. Van Brunt, P. J., and Parker, J.

text:
    Marshall S. Driggs, App’lt, v. Robert J. Dean et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Pledge — Warehouse receipts.
    A person, who has guaranteed a note, secured by warehouse receipts, becomes, upon payment, the owner, and entitled to the possession of the pledged goods.
    3. Same — Storage.
    Upon the transfer, by the payee of the note, of the warehouse receipts to such grantor, and his notification to the warehouseman of such transfer, (here arise the reciprocal relations of bailor and bailee, and an implied obligation upon the bailor, growing out of such relation and conduct, to pay the subsequent storage.
    Appeal"from a judgment dismissing the complaint, and from an order denying a motion for a new trial.

      John Berry, for app’lt; L. E. Warren, for resp’ts.
   O’Brien, J.

— This action was brought to recover storage on 2,4.63 barrels of cement in the warehouse of the plaintiff, who was a public warehouseman in the city of ¡New York. In March, 1885, one Max Yon Angern, being the owner of the cement, placed the same in plaintiff’s warehouse upon storage, agreeing to pay therefor at the rate of four cents a barrel per month, and took two warehouse receipts therefor, one for 1,500 barrels and one for 963 barrels. On these receipts were indorsed conditions upon which the goods were held on storage in accordance with the provisions of chapter 326 of the Laws of 1858, that the receipts might be transferred by indorsement thereof, and that any person to whom they might be so transferred should be deemed .and taken to be the owner of the goods therein specified so far as to give validity to any pledge, lien, or transfer made or «created. Thereafter, and in July, 1885, Yon Angern made his promissory note for $3,500 payable to the Chemical ¡National Bank, and pledged as collateral security for the payment of said note the two warehouse receipts. The note was guaranteed by the defendants. When it became due, Yon Angern failed to pay it, and the bank called upon defendants to pay, which they •did, whereupon the Chemical Bank delivered to defendants the promissory note and the two warehouse receipts, which were then held by said bank as collateral for the payment of the note. On October 24:, 1885, the defendant Wills went to the warehouse of the plaintiff with the receipts, saw the plaintiff, showed him the receipts, told him the defendants had loaned money on the goods to Yon Angern, who had defaulted, and that defendants had been obliged to take the goods. Wills was asked by plaintiff’s bookkeeper whether he should have the bills for storage on the goods made out. Wills told him to do so, and they were accordingly made out by the plaintiff, and delivered by the bookkeeper to Wills, who took them away with him. These bills were for accrued storage from March 28 to October 24, 1885. They were not paid, and the cement remained in the warehouse October 24, 1885, until July «6, 1891, during which time the defendants made and delivered to various persons their order upon plaintiff for the inspection and •examination of the goods, with the object of effecting a sale thereof, which orders plaintiff accepted, and in pursuance thereof •exhibited the goods to parties presenting such orders, and permitted an examination. The goods, when sold, in July, 1891, were not worth the amount of the note for which the defendants held the warehouse receipts as collateral. Upon these facts plaintiff sought to recover for storing the cement from October 24, 1885, until plaintiff sold them, on the 6th day of July, 1891; but at the close of plaintiff’s case the defendafats moved to dismiss the complaint upon the grounds that no contract, specific or implied, to pay the storage had been shown; that no liability •existed on the part of the defendants to pay the storage upon the goods; and that the defendants were not the owners of the goods, their interest being merely as owners of the warehouse receipts as collateral security for the payment of the debt. These grounds the trial judge deemed sufficient, and granted the motion to dismiss the complaint.

The question presented upon this appeal is, did the plaintiff make a sufficient showing to charge the defendants with liability for the storage between October 24, 1885, when the defendant: Wills, as narrated, called at the warehouse, on the 6th day of Julyj 1891, when the goods were sold? If on October 24, 1885, the defendants were the owners of the property, and entitled to-possession thereof by the transfer and delivery to them of the-warehouse receipts, and then asserted such ownership by notifying' plaintinff thereof, and assuming rights pertaining thereto, it seems reasonably free from doubt, as contended by appellant, that under1 such circumstances, if the defendants allowed /the cement to-remain on storage with the plaintiff’s consent, and thereafter made-their orders on the plaintiff for the inspection and examination of the same, 'which were executed by the plaintiff, the plaintiff having thus become a bailee for hire, holding the property for them, subject to their order, and liable to them for the proper care and: storage thereof, the defendants, as bailors, became liable to him for such care and storage. The inferences and assumptions; which we have indulged in are, of course, all dependent upon the conclusion to be reached upon the crucial question presented on this appeal, as to whether or not, when the defendants, by the; payment of the note, became subrogated to all the rights of the bank, they became the owners of the property covered by the receipts. It is not claimed that the defendants at any time expressly requested the plaintiff to store the goods, or promised to-pay for the storage, and there is no question but that originally the receipts were transferred to the bank as collateral security for the payment of the note, and that upon its payment by the defendants the latter received a transfer and delivery of the receipts.. The liability for the storage, therefore, must be predicated upon the theory that by the transfer and delivery of the receipts-defendants became the owners of the property mentioned therein, and that plaintiff became their bailee, liable to them for the proper care of the property, and that, through the relation of' bailee and bailor thus created, the former held the property subject to the order and demand of the bailor, and the latter impliedly agreed to pay the storage. It will thus be seen, -as already said, that the real question upon this appeal is, did the defendants, on the transfer and delivery of the warehouse receipts to-them, become the owners of the property covered by such receipts? We do not regard this as being any longer an open question. In Oolebrook on Collateral Securities it is said :

“Sec. 413. The transfer for value, as collateral security, of warehouse receipts, by indorsement and delivery, or by delivery only, where such receipts are made payable to 1 holder,’ or ‘ only upon the return of this receipt,’ vests the legal title and possession of the property in the pledgee, and is equivalent to an actual delivery of the property. The warehouseman at once, without notice, becomes the bailee of the lender of money, upon the-receipt he has issued. The title to the property passes by such transfer to the pledgee, under the law merchant, independent of any statute. A formal assignment of the document is not required, as the indorsement of itself sufficiently indicates the intention of the pledgor to pass the title and possession.
“ Sec. 414. The pledgee of warehouse receipts, receiving the same, with or without indorsement, as collateral upon a bona fide loan or discount of commercial paper, stands in the same privileged position as a bona fide purchaser for value of like receipts. .An indefeasible title to the property represented by the receipts is vested in the bona fide pledgee for value, and he is entitled to its possession. Such innocent pledgee is a bona fide holder for value in the usual course of business, and has something more than a mere lien for his advances, taking the title to the property and the right to its actual possession. (Citing Gibson v. Stevens, & How. 384.) The pledgee of warehouse receipts is under no obligation to notify the warehouseman of the transfer to him of such receipts at collateral security.”

Among the many authorities in support of the rule laid down in the text the main reliance is placed upon the leading case of Gibson v. Stevens, 8 How. 384. In that case McQueen and McKay were the holders of warehouse receipts of certain pork and flour then on storage. Gibson advanced money to them, and they delivered to him the warehouse receipts as security for the loan. Taney, C. J., delivering the opinion, of the court said:

“ What was the legal effect of the indorsement and delivery of the warehouse documents in consideration of the advance of money he (Gibson) then made to McQueen and McKay ? In the opinion of the court it transferred to him the legal title and constructive possession of the property, and the wharehouseman, from the time of this transfer, became the bailee, and held the pork and flour for him. The delivery of the evidences of title and the orders indorsed upon them was equivalent, in the then situation of the property, to the delivery of the property itself. It is hardly necessary to refer to adj udged cases to prove a doctrine so familiar to the courts. Nor, as respects the legal title, can there be any distinction between the advance made b)r Gibson and the case of an actual purchaser. To the extent of his advance he is a purchaser, and the legal title was conveyed to him to protect his advance. It is not the lien of a factor. The legal title — the right of the property — passed to him. In the case before us the title of Gibson is not a mere lien.”

In Hoyt v. Insurance Co., 26 Hnn, 416, which was a decision of this general term (affirmed without opinion, 96 N. Y. 650), the case of Gibson v. Stevens was referred to, cited, and followed. And in Bank v. Lord, 33 Hun, 561, which was a decision of the general term in the fifth department, the cases of Gibson v. Stevens and Hoyt v. Insurance Go. were cited and approved. In addition, we have been referred to decisions in many states in which Gibson v. Stevens has been followed; but, without regard to them, we think the approval which it has received in this state in the cases cited, one of which has been affirmed by the court of appeals, leaves it no longer a debatable question. Were it an open question, it might be doubted if a mere pledgee of personal property, to whom the title was-transferred as collateral security, thereby became owner to an extent that would render him liable for charges for storage. If, upon acquiring such legal title, the pledgee, with reference to the warehouseman, should exercise such acts of control and ownership over the property as would be inconsistent with any position other than sucli as would be occupied by the real and absolute owner, then ,such conduct, coupled with the legal title, would be sufficient to create an obligation to pay the storage. But under such a rule of law, considering the attitude of the defendants here with respect to the property, in assuming dominion and control and direction of the same, conditions are present which create in the case at bar a liability for the storage. Whatever, therefore, may be the individual views of the members of the court upon the question as to whether a mere pledgee holding title as collateral security is liable for storage, there is controlling authority upon the facts here disclosed respecting the conduct of the defendants towards the property which favors the plaintiffs view that on the transfer and delivery of the warehouse receipts to the defendants, under the terms of the receipts and the conditions of storage, they became the owners of the property covered by the receipts,, and entitled to the possession thereof, and the plaintiff became their bailee, liable to them for the proper care of the property, and thereafter bound to hold it subject to their order-and demand; and when, in recognition of such "relation, the defendants assumed to and did exercise acts of ownership and control, they rendered themselves liable for the storage; because such included the reciprocal relations of bailor and bailee, and an implied obligation upon the former, growing out of such relation and conduct, to pay the storage. We think, therefore, that the learned judge was in error in dismissing the complaint, and the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Parker, J.

— We concur in the result reached by Mr. Justice O’Brien in his opinion, and in the following propositions, which led to it. First, that the transfer of the warehouse receipts by indorsement and delivery vested in these defendants the legal title and right of possession; second, that the defendant took possession of the merchandise pledged on October 24, 1885, at which time he requested that bills for past storage should be made out; third, that a contract for subsequent storage was thereby implied. As the action was brought to recover such storage, it was error to dismiss the complaint.


text:
    Louis A. Jackson, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Municipal corporations — Employes--Discharge.
    An assistant secretary of the commissioner of docks is subject to be discharged at the will of the commissioners.

      2. Same — What is discharge.
    Any language that communicates to the employe that his services are no-longer required, is sufficient to effect his discharge.
    Appeal from a judgment, entered on a verdict in favor of defendant, directed by the court.

      John D. Townsend, for app’lt; Robert Shaw Barlow, for resp’t.
   Per Curiam.

— This action was begun January 13, 1893, to-recover $42,295, claimed by the plaintiff to be due him as assistant secretary of the dock department for salary at the rate of $2,-500 per year from February 1, 1876, to January 1, 1893, a period or sixteen years and eleven months. August 2,1873, the plaintiff was appointed assistant secretary of the dock department by the-following resolution of the board of commissioners of that department :

Resolved, That Louis A. Jackson be appointed, subject to the-pleasure of the board, assistant secretary, vice William F. Whitney, promoted, at an annual salary of $2,500, to take effect August 4th."

August 4, 1873, the plaintiff began service under the resolution and continued to discharge the duties of his position until February 1,1876, when his employment ceased, pursuant to the following resolution and letter:

“January 14, 1876.
“ Commissioner Dimock, chairman of the committee on organization, made a further report, stating that, in view of the limited extent of the work now being prosecuted by the department, it becomes necessary to reduce the clerical force, and recommend for adoption the following resolution': 1 Resolved, that Louis A. Jackson, assistant secretary, George W. Sterritt, assistant bookkeeper, and William F. Cosgrove, messenger, be, and they are hereby, suspended from further duty in the department from and after 31st. inst.’
“January 14, 1876.
“Lords A. Jackson, Esq., Assistant Secretary — Sir : Pursuant-to a resolution adopted at a meeting of the board governing this department, held this day, you are hereby suspended from further duty from and after 31st inst., the work of the department as at present carried on requiring a reduction of-the force employed.
“Respectfully, Eugene T. Lynch, Secretary.”

In March, 1878, the plaintiff obtained a writ of certiorari on a petition verified by him, which contained, among other allegations, the following:

“That on or about the 15th day of January, 1876, a written notice from said board was delivered to your petitioner, notifying him that he had been removed from his position of record clerk,, as aforesaid, said removal to take effect on the 1st of February, 1876 ; that your petitioner protested against his removal, and has ever since held himself ready and frequently offered to perform the duties thereof; that your petitioner's removal from his regular clerkship as aforesaid, as he is advised, was without justifiable -cause, and illegal and void, and in contravention of the provisions of an act to reorganize the local government of the city of New York, passed April 80, 1873.”

The writ issued upon this petition was dismissed. The plaintiff was paid for his services up to February 1, 1876, since which "time he has not been employed by the board.

The assistant secretary of the commissioners of docks is not a public officer. Consolidation Act, § 718 ; People v. Koch, 2 St. Rep. 110; Meyers v. Mayor, etc., of New York, 69 Hun, 291 ; 53 St. Rep. 233. The plaintiff, not being an officer, was subject to be discharged at the will of the commissioners. No particular form of words is necessary to effect a discharge. Any language that communicates to the employe that his services are no longer required is sufficient to effect his discharge. People v. Koch, supra; Meyers v. Mayor, etc., of New York, supra; Beach v. Mayor, etc., of New York, 32 St. Rep. 939; Wardlaw v. Mayor, etc., of New York, 137 N. Y. 194 ; 50 St. Rep. 410.

The judgment should be affirmed, with costs.


text:
    Andrew Gilhooly, as Assignee, etc., Resp’t, v. American Surety Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    BILL OF PABTICULABS — 'WHEN.
    Where the defendant, in an action by an assignee for the benefit of creditors, alleges that the assignment is fraudulent, he may be required to specify wherein it is fraudulent.
    Appeal from an order, requiring the defendant to furnish a bill of particulars.
    The action was brought to recover the sum of $2,100 damages for an alleged unlawful seizure under execution of personal property claimed by plaintiff as assignee. The original defendant was John J. Gorman, sheriff of the city and county of New York. By an order of the court, the American Surety Company, the indemnitor of said sheriff, was substituted as defendant in his place. The bond of indemnity to the sheriff was furnished at the instance of .the Franklin National Bank, which is the real defendant in interest. The answer of defendant admits the making of the general assignment by James Grange, set forth in the complaint, but denies that plaintiff, as such assignee, is or was the owner of the personal property mentioned and described in the complaint herein, and alleges a levy by the sheriff on said property by virtue of an ■execution, alleged to have been issued to him on a judgment alleged to have been recovered in the city court of New York in favor of the Franklin National Bank, as plaintiff, against said ■James Grange, as defendant, for $1,949.76. The answer further alleges as follows: “For a further and separate defense this defendant alleges that the said assignment mentioned in paragraph 1 of the complaint was made by the said James Grange with intent to hinder, delay, and defraud his creditors, and particularly to de^ lay, hinder, and defraud the Franklin National Bank of the City of New York, and that said assignment was and is altogether void as against the said Franklin National Bank and the other creditors of said Grange, and that the title to the property mentioned in paragraph 2 of the complaint never passed to the plaintiff, but remained the property of James Grange.”
    On plaintiff’s motion, the order appealed from was made, directing defendant to “deliver to the plaintiff’s attorney a statement in writing, under oath, specifying particularly the separate act or acts of James Grange, the assignor, and other matters which the defendant expects or intends to prove upon the trial of this action, to show that the assignment mentioned in the complaint was made ■by said James Grange with the intent to hinder, delay, and defraud his creditors, and the Franklin National Bank of the City of New York, and that the same is void; and also what property, if any, the defendant expects or intends to prove on the - trial of this action was withheld by said James Grange from the plaintiff, as the general assignee of his property; and also the times and places at which such alleged acts and matters took place, and particularly to what person or persons, and at what times and places, the defendant intends or expects to prove at the trial of this action that the said James Grange made secret and other assignments of his estate to others than the plaintiff; and also which of the claims, if any, preferred in said assignment are claimed by the defendant to be fraudulent; and, in default of such service, that the defendant be precluded from giving evidence upon the trial of this action regarding any of the matters or things above specified.

      J. C. Ross, for app’lt; Ernest Hall, for resp’t.
   Per Curiam.

— The defendant should not be required to specify its evidence, but sufficient of the particulars should be given so as to prevent surprise upon the trial. In that connection we think the defendant should state whether it claims the assignment to be void on account of fraudulent preferences, in which case it should state what preferences are claimed to be fraudulent. Or, if the alleged fraud consists in the failure of his assignor to transfer all his assets to the plaintiff, in that event the defendant should particularize what property, if any, if expects or intends to prove on the trial was withheld by the assignor from the assignee. And if •on both grounds, then all the particulars above specified should be given.

Order as so modified affirmed, without cbsts.