author: O'Brien, J.

text:
    William T. B. Milliken, as Executor of, etc., of John H. Hillier, Dec’d, App’lt, v. Ellen Golden et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Mortgage—Subject clause nr deed.
    Where a clause, which makes the conveyance subject to a mortgage, is. inserted in a deed from the mortgagor, without the knowledge or assent of the mortgagee and for the sole benefit of the mortgagor, it can be eliminated from the deed, by proceeding in court between grantor and grantee, without notice to the mortgagee so as to enable-the mortgagor to maintain an action against the mortgagee to cancel the mortgage.
    Appeal from a judgment, on report of the. referee, dismissing the complaint
    Action was brought by John H. Hillier against Ellen Golden and William Hastings, to enjoin the foreclosure of a mortgage, and to cancel such mortgage and a bond secured thereby. After the action was commenced, both plaintiff and defendant Hastings-died, and' orders were entered reviving and continuing the same in the name of William T. B. Milliken, as executor of the estate of John H. Hillier, deceased, as plaintiff, and William H. Hastings, as administrator of the estate of William Hastings, deceased, as defendant.

      Shearman & Sterling (Thomas G. Shearman, of counsel), for app'lt; Stephen D. Stephens (Sidney F. Rawson and David Thornton, of counsel), for resp’ts.
   O'Brien, J.

This action was commenced by John H. Hillier to compel the surrender and cancellation of a bond and mortgage for $4,500, which were executed by him on December 1, 1874, to the defendant Ellen Golden, and to restrain a suit which had been commenced by Ellen Golden against George H. Wooster to foreclose the mortgage. The mortgage covers property on Staten Island, which in February, 1877, was conveyed by Hillier, the mortgagor, to George H. Wooster, by a deed containing the usual full covenants and warranty.

The complaint sets up usury, and alleges that William Hastings-was the real party in interest, and made the loan with his own funds, using the name of his sister, Ellen Golden, who was a married woman, merely as a cover for the usury ; that Wooster, to whom the premises had been conveyed free and clear of all incumbrances, could not set up the usury in a suit brought to foreclose the mortgage, and that Hillier would therefore, under the covenants contained in his deed, be liable to indemnify Wooster against the judgment of foreclosure and sale. It appears that, after the mortgage had been made by Hillier to the defendant Golden, an arrangement was made between the former and one Wooster to exchange equities which each of them had, Hillier in the Staten Island property mortgaged to Golden, and Wooster in cortain property in the city of New York. No money passed, but Hillier and Wooster simply exchanged deeds, each one taking the exchanged property subject to the mortgage thereon. Wooster having neglected to pay interest on the Staten Island property, the defendant Golden commenced a foreclosure action, in which Wooster interposed the plea of usury. This answer was adjudged frivolous, and upon appeal such judgment was affirmed. Thereafter, in a suit between Wooster and Hillier, and without notice to Mrs. Golden, the mortgagee, a judgment was taken expunging from the record and from the deed the subject clause in the deed to Wooster, leaving the subject clause in the New York property deed intact. Thereafter this action was brought in the name of Hillier to enjoin the foreclosure of the Golden mortgage on the ground that it was usurious.

The decisive question presented upon this appeal is whether the money represented by the Golden mortgage was the money of Mrs. Golden or of one William Hastings. If the latter, we think that, upon the facts here appearing, showing that on prior loans made, interest was deducted at the rate of per cent a month, and, in addition, thereto, a bonus of $300, a case of usury was established. The learned referee did not determine this question of whether or not the transaction was usurious, having found as a fact that the moneys represented by the Golden mortgage were moneys actually advanced by Mrs. Golden, as to whom no proof was offered that would, as against her, taint the transaction with usury. If the conclusion, therefore, of the referee is sustained by the evidence, that the consideration realized by the plaintiff’s decedent, Hillier, “ from the defendant, Ellen Golden, for the making of said bond and mortgage, was the sum of $4,500 paid by the defendant, Golden, to the plaintiff at the time of the making and delivery by the plaintiff to defendant Golden, of said bond and mortgage aforesaid,” then that is the end of plaintiff’s case. If otherwise, the judgment should be reversed, and a new trial ordered.

By the testimony it is shown that prior to 1877 Hastings acquired a mortgage for $1,750 on Hillier’s Staten Island property, which mortgage had been formerly held by one Meyers, who had commenced a suit to foreclose it, and at Hillier’s request Hastings purchased the mortgage, and advanced the foreclosure costs. In addition to this, Hastings' held Hillier’s notes, upon which there was due about $300; making Hillier’s indebtedness, ■at the time of the taking of the mortgage in Golden’s name $2,265.84. Nevertheless, it appears that, after deducting the amount of Hillier’s indebtedness, and a bonus of $300 for procuring the loan, there was paid over to Hillier but the sum of $1,100. How this was made up is shown by one of the exhibits in the case, wherein it appears that interest was computed at the rate oE !■£ per cent, per month upon the Meyers mortgage, and the exaction, of $540, instead of the $300 due on the notes, and the payment of the additional bonus of $300. These facts are beyond dispute, as is also fhe fact that Hillier never, prior to the time that the mortgage was given, nor at any time, knew or had any transactions personally with Mrs. Golden. She, it .appears was a married woman, and a sister of William Hastings, and took no part in the transactions leading up to the loan, but throughout, so far as appears, was represented by either Mr. Hastings or his son. It also appears that the application for the loan, first of $5,000, and subsequently of $4,500, was made by , Hillier to •William Hastings and his son, who agreed to procure the loan for him ; that subsequently they stated that the loan had been procured from Mrs. Golden, and that as a result the attorney was instructed to draw up the bond and mortgage in the name of Mrs. Golden as mortgagee. The money advanced by way of loan came from the bank account of the son, who testified that some ten days prior to the closing of the loan his father had given him a check for the amount, which he had deposited in his own bank, and out of which he subsequently drew the money, so that he had the bills present on the day when the loan -was closed.

It thus appears that the money came from the bank account of William Hastings; and, apart from the statement of the son that it was the money of Mrs. Golden, and of the attorney who drew the papers that he was told by Hillier, who seemed to doubt the accuracy of the statement, that it was the money of Mrs. Golden, there is no evidence in the case that she herself advanced the money; but, on the contrary, not only the circumstance connected with the manner in which the money was procured by the son upon the check of his father, but many other circumstances in the case, would seem to indicate that William Hastings, and not Mrs. Golden, was the real party in interest. Hillier testified that until he executed the bond and mortgage he had never heard of, never seen, never written to, and had never known anything about, Mrs. Golden; and the only contradiction of this testimony is in the statement of the attorney that just prior to the making of the mortgage Hillier told him, to use his own language, “ in a sneering manner, as if he doubted the truth of it, that Mrs. Golden was to make the loan ; ” and the statement of the son that he at one time prior to the mortgage had told Hillier that Mrs. Golden was to advance the money. In addition it was shown that, two years and over after the date of the mortgage, William Hastings wrote to Wooster, who then owned the mortgaged premises, that he held the mortgage on the property, and he, in the previous January, received and receipted for the interest on the mortgage. As against the recollection of the attorney there was placed in evidence his bill for services rendered upon the closing of the mortgage, by which it appears that the amount charged was “ to services rendered and disbursements in the matter of the mortgage for $4,500 from J. ,H. Hillier and wife to William Hastings.”

Thus the record shows that prior to the execution of the mortgage, Hillier had many business transactions with William Hastings, who held a mortgage on the property, which was discharged, together with a note, with the moneys represented by the present mortgage. That the application was made to William Hastings, and that he was present and received a large portion of the moneys, to the extent already stated, is uncontradicted. On the other hand, except the statement of the son—because that of the attorney was mere hearsay, he not claiming to have any actual knowledge on the subject—no evidence was produced to show that the money advanced for the mortgage was Mrs. Golden’s; and it is a significant fact that in this condition of the record she was not called as a witness upon the trial, nor was any satisfactory evidence given to show that she had advanced any portion of the consideration, for the mortgage. We say no satisfactory evidence was given advisedly, because the statement of the son that the money was Mrs. Golden’s is very materially affected when we recall the fact that upon cross-examination he stated the source from which he received the money, namely, a check from his father, which he deposited in bank, and from, which he subsequently drew the money. He does not say of his own knowledge that his father got the money represented by the check from Mrs. Golden, and the case is barren of any evidence other than his mere naked statement to show that Mrs. Golden advanced any portion of the money that was loaned to Hillier.

We think, therefore,, that in view of the primo, facie case which was made out upon all the facts and circumstances connected with the transaction, in the absence of anything to show that Mrs. Golden, beyond the use of her name, was in any way connected with the mortgage, the preponderance of the evidence was in favor of plaintiff’s contention that Mrs. Golden was the nominal, and not the actual, owner of the mortgage, which in fact belonged to William Hastings. The only hesitancy in reaching this conclusion upon the record arises from the fact that the plaintiff’s case is made to depend to a great extent upon the testimony of Hillier, which was taken before trial, and his deposition read, he having in the mean time died. William Hastings had also died prior to the trial, and the defendant William H. Hastings, his son, as his administrator, was substituted. Much of Hillier’s testimony relates to personal transactions between bimself and William EL Hastings, deceased, and a question is presented as to whether or not this was competent, under § 829 of the Code. Upon the record, however, it is not made to appear that any objection wag taken to such testimony, and the question is not. therefore, before us. We must assume, therefore, that this testimony was received without objection, and must be considered as part of the evidence in. support of plaintiff’s contention. With such evidence in, and in the absence of any evidence showing that Mrs. Golden was the real party in interest, we think the referee erred in finding that Hillier received “ from, the defendant Ellen Golden, for the making of said bond and mortgage, the sum of $4,500.”

It is strenuously urged, however, by respondents that, whether Mrs. Golden was the real or nominal owner of the bond and mortgage, this action cannot be maintained, for the reason that Hillier conveyed the property to Wooster subject to the mortgage, and that thus the rights of the parties were fixed, and that the subsequent suit between Wooster and Hillier, by which the clause making the property subject to the mortgage was stricken out without notice to Mrs. Golden, in no way affected or impaired the rights of whomsoever owned the mortgage. The answer to this proposition, we think, is to be found in the case of Insurance Co. v. Nelson, 78 N. Y., 137, wherein it was held that such a subject clause may be eliminated from a. conveyance without the consent of the mortgagee.

Another- argument suggested for upholding the judgment is that the transaction was not usurious, either upon the plaintiff’s own showing or upon the facts as proved by the defendants ; it being insisted that what occurred with respect to the payments by Hillier to Hastings when they came to close the loan would not constitute usury, that the most that such evidence showed was that Hillier paid usurious interest on this settlement upon confessedly invalid advances before then made, and that the agreement to be bound for any interest, when computed upon an overdue claim, does not constitute usury. The answer to this, however, it seems to us, is afforded by the transaction itself, which was a single one. The procuring of the loan and the payment of the usury was part and parcel of a single transaction. Hillier did not pay off his obligations, and afterwards go to Hastings, and obtain the loan in question. He borrowed $4,500, out of which Hastings had the right to retain the amount legally due on the $1,750 mortgage and on the note, and no more. As a matter of fact, however, he retained much more than this, and this additional sum thus retained constituted the usury. But it.is not necessary for us to determine that question, for the reason that the referee found that whether there was or was not usury was immaterial, which was an entirely proper conclusion to be reached in view of his other conclusion that the money was Mrs. Golden’s, and had been advanced by her.

The other questions presented upon this appeal need not be considered in view of qur opinion of the force and effect of the evidence upon the main question as to whether Mrs. Golden was the nominal or actual person in the transaction. We think that the plaintiff had made out a prima facie case, which placed upon the defendants the burden of showing that she had really advanced the money; and the burden thus placed upon them we do not find to have been sustained. Eor this reason we think that the conclusion reached by the referee upon this question was against the preponderance of evidence, and that the defendants may have an opportunity of presenting such evidence, if it exists, there should be a new trial. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Follett and Parker, JJ., concur.


source: Caselaw Access Project

author: Yah Brunt, P. J.

license: Public Domain

text:
    Peter Naylor et al., Individually and as Trustees, etc., of Peter Naylor, Resp’ts, Dec’d, v. Elizabeth N. Gale et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Trustees—Compensation of trustees.
    Commissions are to be governed by the law in force at the time of the settlement of their accounts.
    Appeal by defendant Elizabeth N. Gale from a judgment confirming the report of a referee allowing to each trustee full commissions on income computed as on annual accountings.

      Eustace Conway, for app’lts; Evarts, Choate & Beaman (Tread-well Cleveland, of counsel), for resp’ts.
   Yah Brunt, P. J.

This action was brought for the settlement of the accounts of the plaintiffs, as trustees of Peter Naylor, deceased, for the period since December 7, 1883, to which date their accounts had been heretofore judicially settled, and to obtain the acceptance of the resignation and discharge of the plaintiffs as trustees of said trust. There is no dispute made as to the correctness of the accounts submitted by the trustees; but exception is taken to the allowance by the referee to each of the trustees of full commissions on income computed as upon annual accountings; and it is also contended that the respondents are not trustees of the appellant, and are, therefore, not entitled to any commissions whatever. The questions sought to be raised as to the validity of the trust cannot be considered in this proceeding, as the action was simply brought to pass the accounts of the plaintiffs under the will in question. And it would be sufficient, if there were no other reason to dispose of the right of the appellant to question the validity of the trust, to say that no such issue is presented upon the papers before us. But we do not by any means intend to hold that, had the appellant attempted to raise such an issue, it could have been done in this action. The only question, therefore, to be considered is whether the referee erred in holding that each of the plaintiffs is entitled as trustee to full commissions on income computed as upon annual accountings. It is admitted that, were it not for the law of 1892, the plaintiffs would have been entitled to but one commission, and the question presented is whether, by the law of 1892, their claim has been enlarged as to income received and disbursed prior to that time.

As already suggested, the accounting in this action goes back to December, 1883. If the question were an open one, in view of the fact that trustees, unlike executors, have a right to deduct for their compensation full commissions on the income actually received before paying it over, (In re Mason, 98 N. Y., 527; In re Selleck, 111 id., 284; 19 St. Rep., 601,) and that this right accrues annually, I should incline to the opinion that the law which existed at the time their right accrued, namely, at the end of each year, should govern the right of the trustees to commissions for that year. It is true, that in the case of executors it has been frequently held that the law existing at the time of the passage of their accounts is the statute which governs in respect to their compensation, upon the ground that an executor is not entitled to any compensation until the final execution of the duties imposed upon him; and hence no right to commissions accrues until the settlement and passage of his accounts, and such is the .rule laid down in the case of Dakin v. Demming, 6 Paige, 95, and since followed. But, as already observed, in the case of a. trustee in respect to income, his right to commissions accrues annually, and he has a right annually to collect the same, and therefore it would seem that his claim for commissions accrues at the end of each year. But we think that the court of appeals in the case of Savage v. Sherman, 87 N. Y., 283,.have established a different rule, and made the rights of trustees in this respect exactly similar to those of executors. In that case, in the court below, 24 Hun, 307, it was held that the commissions of trustees were to be governed by the law in force at the time of the settlement of their accounts, and this rule was distinctly approved.

It follows, therefore, that the referee was correct, and the judgment should be affirmed, with costs.

All concur.


author: Van Brunt, P. J.

text:
    Julius Imgard et al., Resp’ts. v. Walter B. Duffy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Venue—Convenience on witnesses.
    Upon an application to change the venue for the convenience of witnesses, the affidavit must show, not only what the applicant expects to prove by the witnesses named, but also the ground of such expectation.
    Appeal by defendant from an order denying his motion for a change of the place of trial from the county of New York to the county of Monroe.

      Bacon, Briggs, Beckley & Bissell {M. H. Briggs, of counsel), for app’lt; Welch & Daniels, for resp’t.
   Van Brunt, P. J.

The opinion of the court in the case of Turfjell v. Witherbee, 70 Hun, 401; 54 St. Rep., 96, seems to be entirely applicable to the case at bar. The defendant swears tO' his expectations, and that is all. Within the principles laid down in the case cited, this is not sufficient to justify the court in' granting the motion to change the venue. The party should state at least upon what his expectations are founded, so that the court, may say that there is some ground for the hopes expressed. The order should, therefore, be affirmed, with ten dollars costs and disbursements, with. leave to the defendant, upon payment of the costs of this appeal and the costs of the motion in the court below, to renew the application to change the venue upon new. papers.


author: Parker, J.

text:
    Adolph M. Bendheim, Resp’t, v. James B. Morrow, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

      1. Mortgage—Satisfaction.
    Where mortgage trustees, who have special authority to satisfy the mortgage for certain specified purposes, execute a satisfaction of such mortgage, such satisfaction piece is sufficient to extinguish the lien of the mortgage.

      2. Same—Presumption.
    In such case, the presumption arises, in the absence of evidence to the contrary, that it was done in the proper discharge of their duties.
    An action was brought to recover the amount paid on a contract for the purchase of certain real estate, on the ground that defendant failed and refused to remove the lien of a certain mortgage on such real estate.

      Sidney H. Stuart, for app’lt; Wolf, Kohn & Ullman (Sol Koh/n,. of counsel), for resp’t. ' .
   Parker, J.

If the record contained a complete statement of the facts, this case could be more readily and satisfactorily disposed of by the court. We shall be obliged, of course, to follow the findings and the evidence; but, in doing it, we shall not be unaware that there exists another fact, which, if present, might require that the case be treated differently.

The plaintiff, at public auction, was the highest bidder for certain real estate, the legal title to which was in the defendant After the property had been struck down, a contract in writing between the plaintiff and defendant was duly executed, by which it was provided that the deed to be given should be subject to a first mortgage of $80,000, a second mortgage of $17,360, and an indenture of11 lease to the Condensed Coffee Company. The plaintiff paid down, in pursuance of the terms of sale, $1,500, or twenty-five per cent, of the sum bid. He then caused the title to be searched, and discovered a third mortgage to four persons, as trustees for certain creditors of the mortgagor; their names, together with the several amounts due to them, appearing in Schedules A and B of the mortgage. On the day fixed for the completion of the purchase, the plaintiff tendered the remainder of the purchase money, and demanded a deed in accordance with the contract of sale. At the same time the defendant presented a satisfaction piece of the mortgage, executed in due form by the four persons named as trustees therein, and offered to cancel the mortgage of record. Plaintiff refused to accept the deed, claiming that the satisfaction piece was not sufficient to extinguish the lien of the mortgage, and said that he would not accept it, or pay the residue of the purchase money, unless there was first obtained a satisfaction piece of said mortgage, executed by the trustees, and by all the creditors, beneficiaries, and cestuis que trustent therein named, or a written consent to the cancellation, discharge, and satisfaction of record of said mortgage, executed and acknowledged by all of the said creditors, beneficiaries and cestuis que irustent.

Had the owner of the property gone to the trustees, and paid to them the full amount of principal and interest secured by the mortgage, and received from them, in return, a satisfaction piece duly executed, as is the one before us, and placed the same on record, it would not be contended that the mortgage would not have been thereby discharged of record. Indeed, the respondent’s first point assumes that position to be correct. This concession, it will be observed, admits that, in the due performance of their trust, the trustees, and they alone, had authority to satisfy the mortgage. In so conceding, counsel admits no more than the mortgage asserts ; bnt his concession justifies us in refraining from calling attention to the provisions of the mortgage, which makes it clear that it was expected by the trust maker that the trustees should • have authority to collect and dispose of the moneys which the mortgage was given to secure, and to take all necessary steps to that end. So, had the plaintiff, in searching the title, found the record of the mortgage to be discharged by a satisfaction price, such as the defendants offered to cancel the record with, he would have been justified in making no further inquiries with regard to the matter, and protected by the record against any claims by the creditors named in the mortgage because of a failure on their part to receive from the trustees all. or any portion of the moneys which the mortgage was originally given to secure. An intending purchaser, it is true, is presumed to investigate the title,, and to examine every deed or instrument forming a part of it, and must be deemed to have known every fact so disclosed. Acre v. Westcott, 46 N. Y., 384.

But an examination of the mortgage to the trustees, would have disclosed that, in the discharge of their duties, they were expected and required to collect thereon the sum secured, and distribute it to the parties entitled thereto; that, in the accomplishment of that purpose, they had authority to execute and deliver a proper satisfaction price. It would have further- discovered to the inquirer special authority to satisfy the mortgage, in order that a new mortgage for a permanent loan might become the first mortgage, and to receive another mortgage to be placed on the prop-' erty in lieu of the one so. satisfied, and, again, that, in the event of part payment, satisfaction was authorized to be made, and a new mortgage for the balance given. And having thus ascertained from the instrument that the trustees, at the time of executing the satisfaction piece, had authority to do so, he would not have been called upon to inquire whether the satisfaction piece had been induced by the giving of a new mortgage ; by part payment, and a new mortgage for the remainder; by payment in full, in cash, or whether they had received nothing, for the law presumes that trustees will do their duty, and a purchaser, under such circumstances, may relie upon that presumption, in the absence of information to the contrary.

The cases of McPherson v. Rollins, 107 N. Y., 316; 12 St. Rep., 488, and Waterman v. Webster, 108 N. Y., 157; 13 St. Rep., 527, cited by the respondent, are not in conflict with this view. In McPherson's case, the trust created by the terms of the mortgage, which was executed in 1873, was to continue until 1880. The mortgage declared that it was intended as security for the payment of $250 annually to Deming, individually, and $50 annually to the general guardian of Florence MacPherson, on or before the 15th day of May, in each year, until she should arrive at the age of fifteen years, and thereafter the further sum to said Deming or guardian, of $100, payable annually until Florence should arrive at the age of twenty-one years, for the benefit of Florence. There was a similar provision, although covering a different period, for a sister of Florence. A little over a year after the mortgage was executed, Deming signed and executed a satisfaction piece. But the court held that it appeared upon the face of the mortgage that Deming had no power to receive payments in anticipation of the times fixed by the mortgage, which still had a number of years to run, of which fact the purchaser must be presumed to have had notice. In Watermarks case, the mortgage was executed to Joseph Waterman to secure the sum named, with interest, which was to be paid as follows: Interest on whole sum to Sarah Waterman during life; after her death, a portion of the principal was payable to Joseph Waterman ; the residue to be invested in securities for the benefit of the children of James Waterman, to be distributed when they, respectively, should arrive at age. There was reserved to the mortgagor the right to have the mortgage discharged, upon executing other securities upon the same condition. It was after the children of James became of age that Joseph received the money which led him to execute the satisfaction piece. He did not pay the money to the children, and, in the action brought by them for a cancellation of the satisfaction piece, it was held' that he had ceased to be trustee, and had no authority to receive the payments, and that, as the mortgagor acted in violation of the agreement embodied in his mortgage, he could not be deemed to have acted in good faith in making payment.

Although the satisfaction piece in this case had not been recorded at the time of the tender, the question actually presented for determination is not different in its legal effect, than in the case we have supposed. It was duly executed, and needed only to be recorded in order to bring about a cancellation of the mortgage record. This the defendant offered to do, and no objection was made in respect to such offer, other than that the satisfaction piece was not sufficient to extinguish the lien of the mortgage. The conduct of the parties leads us to suspect that at the time of the execution of the satisfaction piece the trustees had not been paid in full, and, possibly, that they had consented to an arrangement which they understood would prevent them from receiving all that the mortgaged interest was fairly worth; so that their conduct operated to wrong their cestids que trustent, and was in the nature of a fraud upon them, of which facts the purchaser had knowledge. If such was the case, an entirely different question would be presented than we have so far considered, for the presumption arising from the execution of the instrument satisfying the mortgage, to the effect that the trustees had proceeded in conformity with the duties imposed by the trust, would have been overcome. But as we cannot pass on suspicions, but only upon findings and evidence, we need not pursue this subject further. The findings nowhere assert that the mortgage had not been paid in full, nor do they, in the recital which they make of the objections interposed by the purchaser against taking the title offered, contain any intimation that it was assigned as a reason for the alleged insufficiency of the satisfaction piece. Turning to the evidence adduced on the trial, we fail to find anything which would support a finding either way on that subject. As the record stands, therefore, the only questions presented are two: (1) Did the trustees have authority to satisfy the mortgage, in the-course of the due execution of the duties devolved upon them by the trust? (2) Does the presumption arise, from the fact that they did execute the satisfaction piece, that it was a step taken in the proper discharge of the duties .assumed by them ? The discussion already had requires an affirmative answer to both of these questions. The judgment should be reversed, and a trial granted, with costs to the appellant, to abide the event.

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


author: Per Curiam.

text:
    The People ex rel. James I. Raymond, App’lt, v. Thomas F. Gilboy et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Certiorari—Judicial acts.
    The action of the board of estimate and apportionment, under chapter 331 of 1892, as amended by chapter 33 of 1893, is not judicial, and is, therefore, not reviewable on certiora/ri.

    Appeal by relator from an order quashing writ of certiorari, issued to review action of the board of estimate and apportionment of the city of New York, in reducing his claim against the city.

      J. M. Bowers, for app’lt; G. S. Coleman, for resp’t
   Per Curiam.

Order affirmed, with disbursements, on opinion of court below.

The opinion of the court below at special term is as follows :

This is a motion to quash a writ of certiorari commanding the defendants, as constituting the board of estimate and apportionment of the city of New York, to certify and return the proceedings of the said board whereby a certain bill of the relator was reduced by the board of estimate and apportionment on the ground that the proceedings of the relator cannot be reviewed by a writ of certiorari. It would appear that, if the position of the relator is well taken, the writ should be quashed on motion, as the court in that case has no power to determine the question upon the merits. People v. Board of Sup’rs of Queens Co., 131 N. Y., 471; 43 St. Rep., 665.

The respondents assumed to act under the provisions of chapter 331, Laws 1892, as amended by chapter 33, Laws 1893. By this section the comptroller of the city of New York was to pay certain debts, liabilities, or obligations incurred or created by a committee provided for in the act, “ after the same shall have been audited and allowed by the board of estimate and apportionment and the question here is whether or not the action of the board of estimate and apportionment, in auditing and allowing the bill was a judicial act that can be reviewed by this writ. It seems to me clear that it is not. The writ of certiorari is appropriate only to review the judicial action of inferior courts, or of officers or bodies exercising under the. law judicial functions. It is not available to review the.action of a public officer or a public body which is merely legislative, executive, or administrative, although it may involve the exercise of discretion. People v. Board of Sup'rs of Queens Co., supra. I think the case of Lanigan v. Mayor, etc., 70 N. Y., 456, is controlling upon this question. In that case a claim against the city was attempted to be enforced under the provisions of the act consolidating the city and county governments, wherein it was provided that all charges against the county were made charges against the city, but, before the city officers could pay a claim under the act, “ it must have been examined and allowed by the auditor and approved by the comptroller." The auditor in that case examined the claim, and reduced it. It was held by the court that there was nothing for the city auditor to do but to examine the voucher, and see that it was in proper form; that he had no right to revise the action of the supervisor and readjust the claim ; and that the action of the auditor was not judicial, and neither bound nor estopped the receiver or the plaintiff. The language used by the legislature in. that case was “ examined and allowed by the auditor.”

In this case the comptroller is directed to pay the claim, after the same shall have been “ audited and allowed by the board of estimate and apportionment.” It would appear that the duty of the board of estimate and apportionment in this case was the same as that of the auditor in the Lanigan case, and, if the action of the auditor there was not judicial, I do not see how it can be said that the action of the board in this case was judicial. I think, therefore, the motion should be granted, and the writ quashed; the same disposition to be made in the three other writs, the motion to quash having been submitted with this motion.


author: Follett, J.

text:
    Maggie Lahey, as Administratrix of, etc., William Lahey, Deceased, Resp’t, v. William Ottman & Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Evidence—Res gestee.
    Declarations, made some time after the transaction, are not part of the res gestm.

      % Same—Declarations.
    Self-serving declarations, to he admissible, must not he the result of thought or deliberation.
    3. Same.
    They must he voluntary.

      4. Same—Principal and agent.
    Where the principal is liable for the tort of his agent, the statements or admissions of such agent, to he admissible against the principal, must he part of the transaction to which they relate.
    5. Same—Admissions.
    To create an admission by silence, it must he shown that the party remained silent or that by his conduct he tacitly admitted the truth of the statement.
    6. Trial—Objection.
    When the mode, by which a fact is offered to be established, is prima facie incompetent, and attention is called by an objection to the reason why the mode is illegal, it is sufficient.
    Appeal- by defendant from a judgment, and from an order denying a motion, made on the judge’s minutes, to set aside the verdict and for a new trial.

      William 8. Cogswell, for app’lt; William F. Handel, for resp’t,
   Follett, J.

This action is for the recovery of damages, occasioned by the death of the plaintiff’s intestate, caused, it is alleged, by the negligence of the defendant’s employe. On the 7th of September, 1892, plaintiff’s intestate was run over by defendant’s cart on Third avenue, near Thirty-second street, sustaining injuries from the effect of which he died on the next day. It is alleged in the complaint and admitted in the answer that the defendant is a corporation, that it owned the horse and cart, and that it was driven by its employe while engaged in transacting defendant’s business. At the time of the accident the horse was being driven on the west or down-town track of the Third Avenue Railroad, and at the same time a car passed on the east or up-town track of said railroad. According to decedent’s declaration, made shortly after the accident, he was in the street for the purpose of taking this up-town car, and the defendant’s driver testified that such was his apparent purpose. Cunningham, a witness called by the plaintiff, and the only witness, besides the driver, who saw the decedent just before the accident, testified that he left the northwest corner of Thirty-second street and Third avenue to cross the avenue, but he could not state his purpose. There is little or no evidence as to what the decedent or the driver did immediately preceding the collision, except that given by the driver,and the declarations of the iritestate, the admissibility of which is about to be considered. Immediately after the accident, decedent was taken to Brimolow’s drug store, which one witness testified was on the corner of Thirty-first street and Third avenue, and another that it was on the corner of Thirtieth street and that avenue. It was either one or two blocks from the place of the accident: When the decedent was being taken into the drug store, John Casey, a policeman, being attracted by the crowd, entered the store where the driver and the decedent then were. What then occurred will best be described by quoting the policeman’s evidence, who was called by the plaintiff.

“ I arrested the driver, and had a talk with the deceased, in the presence of the driver. Q. State what conversation you had with the deceased. (Objected to.) Q. Was this immediately after the accident? A. Yes, sir. By the court: Q. Tell what you heard of it ? A. My attention was attracted to a crowd at Thirty-first street. A man came rushing up to me, and said: 1 There is an accident. A man is run over; and there were three or four men taking him into a store, a drug store.’ I asked where was the man that drove the wagon. They said, ‘We have him here.’ I immediately placed him under arrest. I asked the deceased how he got run over. (Defendant’s counsel objects to any statement made by the deceased.) Q. Was the driver there with you? A. Yes. (Objected to; objection overruled; exception taken.) By plaintiff’s counsel: Q. State what the deceased said to you ? A. I asked how the accident occurred. He said he was about to take a Third avenue car. He left the sidewalk, and this wagon came along. He was about to board the car, and this wagon came along, and he held his hand up to pull them up, and before he had a chance to get out of the way he was thrown down.”

Afterwards, the time not appearing, the policeman took the decedent and the driver to the station house.

‘•Q. Did he (intestate) at any time time make any other remark ? A. Yes, in the station house- Q. Was the driver there? A. Yes, sir. Q. State what he said. A. When he was taken before the sergeant, the sergeant asked him, ‘Are you going to make a charge against this man ? ’ He said, ‘ Well, if he will pay all expenses, I won’t.’ The sergeant said, 1 Take him in the back room.’ While he was in there he had a conversation with the driver. He (intestate) said: ‘You had no right to do what you done. A fool would not do it, and I will make a charge against you.’ ”

The rulings of the court by which the declarations of the intestate were admitted are challenged on his appeal, and it is sought to sustain them upon two grounds: (1.) That the declarations were a part of the res gestae; (2) because they were made in the presence of the defendant’s driver. Whether self-serving declarations are admissible or not depends upon whether they were made under such circumstances that they are presumed to be instinctive, but if they may have been the result of thought or deliberation they are not admissible. The declarations at the drug store are clearly not a part of the res gestae. The accident occurred at the corner of Thirty-second street, and the drug store was either one or two blocks away, and some time had intervened between the accident and the interview — how much is not disclosed by the " record. The declarations were not voluntary, but were drawn from the declarant by the question of the policeman. These declarations were not admissible as a part of the res gestae under the rule laid down by the court of appeals. Whitaker v. Railroad Co.. 51 N. Y., 295; Waldele v. Railroad Co., 95 id., 274; Martin v. Railroad Co., 103 id., 626; 4 St. Rep., 303. The declarations made at the station house are still more remote and objectionable.

Were the declarations admissible because made in the presence of the defendant’s driver? In case a principal is liable for the tort of his agent, statements of his agent, made during the commission of the wrong, are admissible as against the principal; but it is essential that the statements or admissions should be part of the transaction to which they relate. In case an agent or employe commits a tort for which his principal is sought to be held liable, and sometime afterwards makes an admission or statement against the interest of his'principal, it is not admissible in evidence against him, unless authority is shown on the part of the employe to make the admission or statement. In. this case the driver made no distinct admission or statement, and the only ground upon which it can be urged that these declarations amount to an admission is that they were made in the presence, and presumptively in the hearing, of the driver. When a statement is made in the presence of a person interested, by an adversary, and under such circumstances that it ought to be denied, and the interested person remains silent, it becomes an admission by conduct; but before a statement so made becomes admissible by reason of the conduct of the person to whom made, it must be shown that he remained silent, or that by his conduct he tacitly admitted the truth of the statement. An employe or agent cannot bind his principal by conduct unless he has authority to bind him by a direct admission or statement. The reception of these declarations, of the driver cannot be sustained on the ground that they were a part of the res gestee, or upon the ground that the defendant was bound by the conduct of the driver, or by his failure, if he did fail, to deny the statements. The driver’s statement at the police station was some little time after the accident, and was evidently made with reference to the criminal liability of the driver, and related to the complaint then made against him. Tinder such circumstances the driver cannot be deemed to have been acting as the agent of the defendant, and in the course of his employment.

It is urged that the objection to any statement made by the deceased,” and the exception subsequently taken to the ruling of the court, are not applicable to the evidence subsequently given. At first the court did not rule on the objection, but, as soon as a ruling was made, an exception was taken; and we think that the objection and exception clearly related to the admissibility of the decedent’s statements, and to nothing else. It is also urged that the objection is not sufficiently explicit to raise the question that the evidence was inadmissible. The fact sought to be proved — the conduct of the decedent and the driver—was relevant and competent, but the mode by which it was sought to be proved -— by the decedent’s statement — was not prima facie competent, and to this point the objection went, and it must have been understood by the court and by the plaintiff’s counsel. A general objection to the admissibility of a fact in evidence is sufficient in case the fact offered is wholly incompetent, and its incompetency could not have been obviated by other evidence; and when the mode by which the fact is offered to be established is prima facie incompetent under the general rules of evidence, and attention is called by an objection to the reason why the mode is illegal, it is sufficient. The burden is on the plaintiff of proving a proper foundation for the introduction of these declarations, which were prima facie incompetent, but this she failed to do.

The judgment and order should be reversed, and a new trial .granted, with costs to the appellant to abide the event.

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


author: O’Brien, J.

text:
    In the Matter of the Estate of Clarissa E. Curtis, Deceased.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Taxes—Collateral inheritance.
    Remaindermen, where property is left to a trustee for certain beneficiaries, with remainder to the survivor of other persons, are not liable, during the life estates, to pay on their contingent interests the tax imposed by chap. 483, of 1885.
    Appeal by the executor or trustee from an order assessing and fixing the tax and an order affirming the same.

      Oortlandt Irving, for app’lt; Edward Hassett, for resp’t.
   O’Brien, J.

The testatrix died Movember 3, 1886, leaving a will, which was admitted to probate; and the question presented ■on this appeal is as to whether certain remainders to nieces and nephews are liable at the present time to pay any collateral inheritance tax, under chapter 483 of the Laws of 1885. By the fourth clause of the will the testatrix gave the remainder of her personal property to her executors in trust, to receive the income and apply the same to the use of her daughters Clara Isabella Curtis and Julia Frances Munson during their lives in equal shares, and to the survivor for life. By the fifth clause she devised her real estate or its proceeds to her executors in trust, to divide into eight equal portions, and to receive the income therefrom, and apply three portions to the use of her daughter Clara Isabella Curtis during her life, three portions to the use of her daughter Julia Frances Munson during her life, .one jiortion to the use of her granddaughter Edith Hastings during her life, and one portion to the use of her grandson Ernest Hastings during his life. By the seventh clause of her will the testatrix devised and bequeathed all the remainders upon the said life estates in the real and personal property as follows: One-half thereof absolutely to her nieces Mary Helen Ridgway and Clara Adelaide Tatchenhorst, (now Clara A. James,) children of Edwin Racy, “ and the other half thereof absolutely to my nephews Charles H. Racy, Walter Racy, and Harold Racy, children of my deceased brother, William H. Racy; that is to say, to such of my said nieces and nephews as shall be living at the time of the successive termination of every such trust, in such respective portions, and to the issue then living of each of said nephews and nieces then deceased; the issue taking per stirpes, and not per capital Ernest Hastings, to whom the testatrix bequeathed one-eighth of her income during his life, died unmarried in June. 1887. Harold Racy and Walter Racy, two of the three persons to whom she bequeathed one-half of the residue of her real and personal property by the seventh clause of her will, died unmarried; Harold before the death of the testatrix, and Walter after.

The learned surrogate appointed an appraiser to fix and report the value of the interest liable to pay the collateral inheritance tax, and such appraiser reported the values of the various interests of said nephews and nieces in the property of the testatrix, but stated that none of them, except the said interest of Ernest Hastings, which vested upon his death in the four nieces and nephews,, was at present liable to taxation, as, under the terms of the will,, it cannot now be determined who will ultimately be entitled to-the respective remainder values above mentioned.!’ With this view the learned surrogate did not agree, saying in his opinion: “ The appraiser, however, has fallen into error in concluding that the tax cannot now be assessed. The tax upon the remainder became due and payable, under section 2, immediately upon the death of the decedent, and the act likewise provides that the person whose interest is so taxed may defer the actual payment thereof by filing a bond and renewing the same from time to time-until it vests in possession. Should the remainder-man die prior to the decease of either of the life tenants, the remainder would then vest in her issue, who'would then be the persons required to-pay the tax, or continue the security for its payment, until the estate vested in possession.”

Consonant with these views, the matter was remitted back to the appraiser, who thereafter filed his report as amended, fixing the amount of the tax for which the contingent interest were liable. It is conceded that the several life interests created by the will were not liable to the payment of any tax. The executor has paid the tax on all property that vested in the nephews and nieces upon the death of Ernest Hastings. Thus the present appeal is taken from those portions of the order made upon the coming in of the-appraiser’s reports which declared such contingent interests liable to-pay at the present time any tax, and from the order affirming the same as fixed by the appraiser. In the conclusion arrived at by the learned surrogate we are unable to agree. The provisions of the-will show that, as to the nephews and nieces of the testatrix, each takes an interest which is contingent upon surviving the terminaof the trusts, and, unless they so survive, they will never receive such interests in possession. As urged by appellant, time is of the essence of the gift, and futurity is annexed to the substance of such gift. There is no present gift Should any of the. nephews or nieces die before the termination of the trusts, leaving no issue (as has happened in the-case of one of them, Walter Racy, who died unmarried in December, 1891), the interest of those so dying will entirely cease, and pass to the survivors. Should all of the nephews or nieces die before the life beneficiaries, without children, or, should they die leaving children, if the children should die before the termination of the life estates, as the will makes no further provision, the property, including said remainders, would become intestate, and vest by law absolutely in Clara I. Curtis, Julia F. Munson, and Edith Hastings, the daughters and granddaughter of the testatrix, all of whom are exempt from taxation by the law of 1885. It is, therefore, clear that at the present time it is impossible to tell whether such property and the remainders therein would vest in possession in persons liable to pay such tax, or in persons exempt therefrom; nor can it be determined until such trusts terminate. ¡Neither is it possible, in the other aspect, assuming that the life interests should terminate, to determine which of the nephews and nieces, or the children of such of them as may have died, will succeed to the property. It would appear that the original position upon these facts taken by the surrogate was that this was in principle analogous to his decision in Re Clark's Estate (Surr.), 5 N. Y. Sup., 199; 22 St. Rep., 354. As therein said: “To make the tax accrue at once, two things are necessary. First, to determine definitely the fair market value of the property subject to the tax, and, second, the person to whom such property passes. * * * The act does not say that where property is left to A., an exempt person, for life, with a contingent life estate to B., that A. shall be taxed to pay for B.’s prospective enjoyment, even though B. may never enjoy it The act expressly exempts certain persons and taxes others, and it cannot be rightly held that, where property was left for life to an exempt person, and after his death, for life to one not exempt, should she survive, that, in that event, the corpus of the estate, which is exempt, should be diminished by the amount of the tax upon the happening of an event which would not make the life tenant liable to the tax, whether it did or did not happen, and which, if the contingency should fail, might throw the estate back to persons who were exempt. Neither the- first estate nor the last should be taxed for the contingent second estate. It must be that, in cases such as this, where it is absolutely impossible to decide to whom the property will go, the intention is that the appraiser shall report the fair market value of the property at decedent’s death, and that the latter must be regarded as suspended until the contingency does or does not happen, at which, time, that is, at the death of the life tenant, it can be determined to whom the property would pass, and whether or not it is subject to the tax.”

With this reasoning of the learned surrogate we entirely concur, and we think that the application of the same rule to the facts in this case would have justified the appraiser in reporting, as was there done, “ the fair market value of the contingent interests at the date of the death of the decedent,” and in further reporting that, in view of the contingent character of the bequests, he could not report the remainder as presently taxable. The reason for not applying the principles laid down in Be Clark's Estate to the interests here sought to be taxed is presumably to be found in the final statement in the opinion of the surrogate that he did not decide the questions here presented until the court of appeals had reached a determination in the Stewart Case, 131 N. Y., 278; 43 St. Rep., 171. We do not regard that case, however, as in any way overruling the principle applied in Be Clark's Estate,. The Stewart case is authority for the positions correctly stated in the head note, that the collateral inheritance act of 1885 contemplates not only the taxation of such interests as are capable of valuation at the death of the decedent, but every interest, immediate or future, derived under him, not excepted by the act; that contingent interest given by a will, which, after the death of the testator, are converted, before the happening of an event upon which they are limited, into actual vested estates, can then be appraised and taxed under the provision of said act, § 13, which authorizes the surrogate to appoint an appraiser of property subject to the payment of the tax as often as, and whenever occasion requires, who shall appraise the same at its fair market value. As shown by that case, there are two classes intended to be provided for by the act of 1885, and these are covered by two different sections, viz., §§ 2 and 13 of the act. Section 2 relates, as stated in the opinion, to “ cases where property is devised or bequeathed for life or a term of years to a person whose interest is exempt from the payment, of any tax, with remainder over to collaterals or strangers in blood.

In these cases the section prescribes that the (entire) property passing under such a devise or bequest shall be appraised immediately after the death of the decedent at what was the fair market value thereof at the time of the death of the decedent, and, after deducting the value of the estate for life or years, that the tax prescribed by the act on the remainder shall be immediately due and payable.” All other property which is the subject of taxation comes within the class controlled by section 13, which authorizes the surrogate to appoint an appraiser “ as often as an.d whenever occasion requires ” And, as said in the Stewart case: “It is to be noticed that this. section does not, as does the second section, require the valuation to be made immediately upon the death of the decedent, * * * nor * * * that the property appraised thereunder shall be appraised at what was the fair market thereof at the time of the death of the decedent, as is required in the cases falling under the second section."

In another part of the opinion it is said : “ But we think that the thirteenth section does include cases like the present, and that contingent interests given by a will, which, after the death of the testator, are converted by the happening of the event upon which they are limited into actual vested estates, may then be appraised and taxed under the provisions of section 13."

We think that the Stewart case and the one at bar are analogous to principle, and that the designation of the person under appointment in the former is equivalent to the survivorship of the nephews and nieces of the testatrix after the death of the life tenants. When the contingency is removed by the termination of the trusts; an appraisement can be made and the tax fixed with perfect fairness to all parties interested; and, applying the reasoning in the two cases , referred to (In re Clark's Estate and the Stewart case) to the facts here appearing, no appraisement of the contingent interests of the collateral relatives should be attempted to be made, nor any tax imposed thereon, until such interests become vested in possession, and, by the removal of the contingency, it appears whether they have so vested in parties liable to taxation or in parties exempt.

The injustice of any other conclusion can be seen when we remember, as said m Re Will of Cager, 111 N. Y., 847; 19 St. Rep., 497, “ the tax is upon the individualand how it would work, if its payment could be enforced against all the nephews and nieces who are living at the death of the testatrix, and who might or might not eventually succeed to the estate, may be shown by taking the case of one of thoseocollaterals who died unmarried after the testatrix, and whose remainder interests, under the provisions of the will, have passed to others. He neither en. joyed any benefit, nor had he any power of disposition. Hot hav. ing, therefore, any beneficial interests, it would be a great injus. tice to hold that he was obliged to pay a tax upon such interest, and, now that he is dead, that his estate should be charged with such payment, when it would inure entirely to the benefit of others. With respect to the others who are still living, although by reason of their death before the life tenants, they may never come eventually into possession of any interest in the estate, the tax, if now assessed and held to be payable, can be enforced against them, which, if they are unable to pay it, might result in their imprisonment, under the power given to the surrogate to enforce a decree by proceeding for contempt. Code Civil Proc., § 2555. In re Prout’s Estate, Surr., 3 N. Y. Supp., 831; 19 St. Rep., 318. A construction of the act, therefore, which might result in injustice and hardship to those intended to be benefited, should not be resorted to, unless the express provisions of the act require such a construction. This, as we have endeavored to point out, is not necessary; and, although the fair market value of the contingent interests at the date of the death of the decedent might have been fixed, we think it was wrong to determine the value of the interests, because not capable of valuation, of each of the nephews and nieces in the property, but that, as was done in Re Clark’s Estate, “ in view of the contingent character of the bequests,” the appraiser should have reported the remainder as not at present taxable. Our conclusion, therefore, is that the orders appealed from should be reversed with costs and disbursements.


text:
    Elizabeth Mercer, App’lt, v. William Stuart Mercer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Divobce—Counsel fees.
    Payment, by the husband, of the wife’s counsel in an action for divorce is not the subject of provision by final judgment, but must be directed, pendente lite, by order on special application.
    2. Same—Contempt.'
    Such order is a mandate of the court, entitling the wife to enforce compliance therewith by contempt proceedings, though it directs the amount to be paid to be included, and it is subsequently inserted iu the judgment.
    3. Same.
    That the order was made after trial and a decision in favor of plaintiff upon defendant’s default, and that the latter is without funds, are considerations which cannot be urged on appeal from an order denying a motion to punish for contempt.

      Appeal from an order'denying a motion to punish defendant for failing to comply with an order, directing him to pay plaintiff money for counsel fees. '

      F. ' De Lysle Smith, for app’lt; J. M. Ferguson, for resp’t.
   O’Brien, J.

By the judgment in this case it was decreed that plaintiff was entitled to an absolute divorce from the defendant, and, in addition to other provisions including the payment of a certain sum as permanent alimony, it provided that the defendant should pay to the plaintiff’s attorney the sum of $500, as directed by the order of this court, “ being the sum allowed by said order as a counsel fee to said plaintiff, and that said defendant give to the clerk of this court security for the payment of said allowance for counsel fee within the time and according to the terms by said order provided.” This order, made prior to the entry of the judgment, directed that the sum of $500 “ be, and the same is hereby, allowed to the plaintiff herein as a counsel fee to enable her to prosecute this action ; ” and then follow provisions directing the defendant to pay, and requiring him to give security for such payment, concluding with this recital: “ And it is hereby further ordered that the said allowance as counsel fee hereby granted may be included in plaintiff’s judgment herein as a part thereof, and that the provision may be made in said judgment that the said plaintiff may have execution from time to time against the said defendant for the collection thereof."

The defendant not having paid the $500, or given the security, as directed by the order, a motion was made to punish him as for a contempt for his misconduct in thus failing, neglecting and refusing to obey said order. The objection was taken below that inasmuch as there was a direction in the order for including the amount in the judgment, which, as shown, was so included, a proceeding as for a contempt would not lie, but that the plaintiff's sole remedy was an execution upon the judgment. The memorandum of the judge below states : “The case of Jacquin v. Jacquin, 36 Hun, 378, constrains me to deny this motion, without costs. In that case, as shown by the opinion, “the amount directed to be paid by the order was the costs and counsel fee recovered by the final judgment entered in the action." It was therein held that where, in an action for a separation, the final judgment directs the defendant to pay to the plaintiff’s-attorney a fixed sum as for her costs and counsel fees, the failure of the defendant to make such payment cannot be treated as a contempt.

It will thus be seen that the question therein presented was with respect to costs and counsel fees directed to be paid by a final judgment, whereas the question here relates to a counsel fee directed to be paid by a pendente lite order; and the decision was there expressly placed upon the ground that the costs and counsel fees directed by the judgment were not moneys directed to be paid by orders, as provided for in § 1769 of the Code, to enforce compliance with which a proceeding as for a contempt would lie. That section (Code, § 1769) provides that the court mhy, during the pendency of the action, “from time to time, make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action.” And, as said in the opinion in Jacquin v. Jacquin, supra: “ That section has been limited to orders made during the pendency of the action, by which the husband may be required to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide for the education and maintenance of the children of the marriage, or for the support of the wife.”

The real question, therefore, to be here determined, is whether the allowance made was one within the provisions of § 1769 of the Code, or was one made in the final judgment. By reference to the terms of the order from which we have quoted, and which was entered prior to the final judgment, it will be seen that it was a direction for the payment of a counsel fee pendente lite; and were it not for the recital that such allowance may be included in plaintiff’s judgment herein as a part thereof, and that the plaintiff may have execution for the collection thereof, no question could arise. It remains, then, to be determined whether such a recital in the order, coupled with the fact that the judgment directed an execution to issue for the sum thus allowed, took away the plaintiff’s remedy which she otherwise would have had for enforcing the payment thereof by proceedings as for a contempt. It is doubtful whether such provision in the judgment is warranted, because § 1769 is seemingly the only authority for an allowance to the plaintiff for the expenses of- the action, and this makes no provision for such an allowance in the judgment. In Percival v. Percival, 14 St. Rep., 255, it is said: “ But the judgment contained a provision awarding to the plaintiff, among other things, the sum of $300 for past expenses which she had incurred prior to the judgment. This sum was improperly inserted in the judgment, inasmuch as the rule as now administered is that expenses pendente lite, if they are awarded at all, must be awarded upon special application, and cannot properly form a part of the judgment, citing Beadleston v. Beadleston, 103 N. Y., 402 ; 3 St. Rep., 634. To this extent the original judgment must be modified.”

In Williams v. Williams, Sup., 6 N. Y. Supp., 647; 25 St. Rep., 183, it was said: “ The counsel fee was unauthorized. The statute (Code Civil Proc. § 1769) only makes provision for costs ; that is, in the final judgment All sums necessary to enable the wife to carry on the suit must be awarded on special motion.” And in Straus v. Straus, 67 Hun, 591; 50 St. Rep., 845, it was ■said, in construing § 1769: “This section, which is the only authority for an order directing payment of the expenses of the wife for counsel in the action, evidently means that such direction shall be given in an order, and notin the final judgment.”

These cases, therefore, are all authority for the position that payment of the expenses of the wife for counsel in the action is not the subject of provision by final judgment, but is the subject of a special application, and that payment during the pendency of the action is to be directed by order. It appearing, therefore, that the amount directed to be paid had been granted upon a special application made prior to the entry of judgment, to enable plaintiff to prosecute the action, such order was a mandate of the court, (notwithstanding the direction to include it in the judgment and its subsequent insertion), entitling the plaintiff to enforce complianee therewith by contempt proceedings.

It was made to appear, however, that this allowance was made several days after the case had been tried, and a decision awarded in plaintiff’s favor, the defendant being in default, and not appearing on the motion; and it is urged that, being now without funds, he should not be punished by a proceeding as for a contempt. These, however, are considerations that might be well addressed to the learned justice who made the original order, or to the judge before whom the motion to punish for contempt shall be heard; the sole question presented for our determination being whether the plaintiff’s only remedy was by execution, as held by the judge below, or whether a proceeding as for a contempt will lie. Having reached the latter conclusion, it follows that the order appealed from should be reversed, with costs to plaintiff, and with leave to renew the motion.


text:
    Oliver W. Barnes, Resp’t, v. Francis C. O’Reilly et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Evidence—Parol.
    Where the agreement provides that plaintiff should he paid a certain-sum for procuring the contract, the defendant, in an action to recover such sum may show that, by mutual mistake, there was omitted from the agreement a stipulation that such sum should be paid from the profits of the contract, and that there were no profits.
    2. Appeal—Record.
    To enable the appellate court to determine whether the rejection of a< document, offered in evidence, was error, the instrument, or a sufficient statement of its contents, should be contained in the record. .
    Appeal by defendants from a judgment in favor of plaintiff,, entered on the report of a referee.

      Durnin & Hendrick, for app’lts; Blair & Phelps, for resp’t.
   Follett, J.

This action is for the recovery of $9,000, with interest thereon from February 16, 1887, which is claimed to be due, pursuant to the following contract:

“ This memorandum or agreement; entered into this 16th day of February, A. D. 1887, witnesseth: That, whereas, the parties of the first and second parts hereto have entered into a contract to construct fifty miles of the Duluth, South Shore & Atlantic Railroad, it being agreed and understood that the interests of the said parties hereto shall be share and share alike, that is, each shall be entitled to and be responsible for a one-third interest in said contract, the party of the first part hereunto being Oliver W. Barnes,, and the parties of the second part Francis 0. O’Reilly and Joseph U. Qrawford, it is agreed and understood by and between the-parties hereto that, in consideration of the said party of the first part having procured said contract and allowing said parties of the second part to share with him in the same, as herein stated, the said parties of the second part hereby agree to pay to the said party of the first part the sum of ten thousand dollars ($10,000), one thousand dollars of which has heretofore been paid on the 27th day of January, 1887; and it is hereby further agreed and understood that the said parties of the second part assume to furnish all the capital that is necessary for the prosecution of the work, and to carry on the same to completion, in accordance with the original contract made on the 27th day of January, 1887, and they further agree that they shall give their personal attention to the construction and completion of said work in accordance with said contract; and it is further agreed and understood that the said party of the first part shall not be required to furnish either capital or personal attention in the management, construction, or completion of said work as provided for in said contract, further than that he will hold himself ready from time to time to give the firm the benefit of his professional knowledge and counsel in the management of said work as may be desired. It is further agreed and understood that the said work shall be commenced forthwith, and prosecuted diligently to completion in compliance with the terms of the contract for the same, and to the best advantage to the parties of the first and second parts. It is further agreed and understood that the said work shall be prosecuted, and the business carried on, under the firm name of F. C. O’Reilly & Co. It is further agreed and understood that the said F. G. O’Reilly is hereby designated to take charge of the financial business associated with the construction of said work, and that the firm shall have a clerk to keep proper books of account of the business of said firm. In witness whereof we have hereunto subscribed our names and affixed our seals, at New York, this 16th day of February, A. D. 1887.

“ Joseph U. Crawford, [l. s.]”

“ Oliver W. Barnes, [l. s.]

“ F. 0. O’Reilly, [l. s.]

The defendants, by their answer, admitted the execution of the contract, and that the sum of $9,000 had not been paid, and alleged that before the execution of the contract it was orally agreed between the litigants “ that the interests of the said parties were to be share and share alike, i. e., the plaintiff and the defendants were each to receive one-third (1-3) of the profits and to be responsible for one-third (1-3) of the losses. That the defendants were to pay the plaintiff for his work in procuring said contract the sum of $10,000, and that said sum was to be paid out of the profits derived from said contract, before any division was made.” It is also alleged that “by a mistake, mutual on the part of both of the parties thereto, .the said agreement failed to contain a clause providing that the sum of ten thousand dollars to be paid to the plaintiff for having procured said contract should be paid out of the profits derived therefrom, and that the sum of one thousand dollars, theretofore paid, should be deemed a payment on account of said profits.’’ The defendants alleged that no profits were earned by the construction of the railroad, but that .the firm sustained a loss of $39,473.51, for one-third of which the plaintiff was liable. It was also alleged in the answer and found by the decree that on June 30, 1888, the firm was dissolved by an instrument in writing, signed by the three partners.

The defendants demand, among other relief, that 'the contract be reformed to correspond with the agreement entered into. On the trial the defendants offered to prove the allegations contained in their answer, but the' evidence was rejected under the objection of the counsel for the plaintiff. This was error.

It is also urged that the referee erred in rejecting the contract of January 27, 1887, ^referred to in the contract of February 16, 1887, on which the action was brought. The rejected contract is not contained in the record, and it may have appeared to be irrelevant on its face. When an appellate court is asked to determine whether the rejection of a document offered in evidence was error, the instrument rejected, or a sufficient statement of its contents, should be contained in the record to enable the court to decide the question. Many of the important dates in the record are clearly erroneous, and so confusing that we might well refuse to decide the case, and send it back for resettlement; but the error committed is so patent .we have concluded to decide the appeal on the present record.

The judgment should be reversed, and a new trial ordered before another referee, to be appointed on settlement of order herein, with costs to the appellant to abide the event.

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


text:
    William H. Clark, Resp’t, v. Charles T. Poor, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Will—Probate.
    Section 1861 of the Code of Civil Procedure does not apply to wills which have been duly proved.
    Appeal by defendant from a final and an interlocutory judgment sustaining a demurrer to an answer. .

      Lamed, Warren & Knapp (W. P. Knapp, of counsel), for app’lt; Redfield & Redfield (Robert L. Redfield, of counsel), for resp’t.
   Follett, J.

The following facts are alleged in the complaint: November 8, 1892, Anna T. B. De Witt, a resident of the state of Connecticut, died in said state, leaving real and personal property therein, and also real and personal property in the state of New York. She left a last will and testament, executed June 26,1890, in the state of New York, by which she bequeathed to the plaintiff twenty shares of the stock of the American News'Company. December 2, 1892, said will and testament was duly admitted to probate in the county of Fairfield, in the state of Connecticut, and. was duly recorded in the office of the probate court of that county, and letters were duly issued thereon. The will has not been probated in this state. June 6, 1893, this action was begun to have the will proved and established in this state. March 16, 1893, the representative of the estate answered that the twenty shares of stock bequeathed to the plaintiff had been tendered to him, and that he had no interest in having the will proved and established in the state of New York, and demanded a judgment that the complaint be dismissed, with costs. March 18,1893, the plaintiff demurrer to the answer, on the ground “that it is insufficient in law upon the face thereof,” which was sustained, and an interlocutory judgment entered. The defendant not availing himself of the privilege granted to plead anew, a final judgment was entered, awarding the relief demanded in the complaint.

A cause, of action is not stated in the complaint. It is alleged therein that the' will has been duly probated in the state of Connecticut, wherein the testatrix resided and died. It is not alleged that the will or the proceedings by which it was probated have been questioned. Section 1861 of the Code of Civil Procedure, under which this action was brought, does not authorize an action to prove and establish the will of a resident of another state which has been duly probated therein. This section is a re-enactment of §§ 63, 64, 67 and 68, tit. 1, c. 6, p. 2, of the Eevised Statutes, by which it appears that the term “ establishing a will ” means the same as proving a will; and such is the obvious meaning of the term as used in the section of the Code referred to, which has no relation to wills which have been duly proved. Article 7, tit. 3, c. 18 of the Code of Civil Procedure, provides a complete scheme for establishing and giving effect within this state to wills duly probated in other states. A demurrer runs through the entire record, and the court will give judgment to the party who on the whole appears to be entitled to it. The final and interlocutory judgments should be reversed, and the complaint dismissed, with costs.

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


author: O’ Brien, J.

text:
    Chu Pawn et al., App’lts, v. Robert J. Erwin, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Reference—Compulsory.
    Where the real point in dispute between the parties, except with respect to one item, is as to the rate of compensation which the defendant was to receive for his services, a compulsory reference, on the ground of the examination of a long account is properly refused.
    3. Same—Waiver.
    A counterclaim in the answer cannot make an action referable.
    Appeal by plaintiffs from an order denying a motion for a compulsory reference.

      McMahon & Handley (Dennis McMahon, of counsel), for app’lts ; Martin & Smith (George A. Strong, of counsel), for resp’t.
   O’ Brien, J.

The motion was made on the pleadings, the defendant’s bill of particulars of his counterclaim, and on two affidavits ; the latter setting forth in detail the issues, as understood by one of the plaintiffs and his attorney. Since the court is as competent to judge of what issues are presented by the pleadings as either of these affiants, little weight may be attached to the affidavits, and the motion must therefore be disposed of by the construction to be placed upon the pleadings as to the actual issues between the parties.

The complaint sets forth three causes of action, and the claim is advanced that, by reason of the defense interposed, and more particularly the counterclaim of the defendant, there is involved a long account, which entitles plaintiffs to a compulsory reference. It appears that plaintiffs, who are importers, employed the defendant, who was a customhouse broker, to get their goods out of bond; and it is alleged that, while acting for them in a fiduciary capacity, he obtained, at different times, different sums, upon representations, charged to be false, that they were called for by the customhouse authorities to pay extra duties and penalties imposed on the goods of plaintiffs. The first course of action is founded on nineteen several items of money, of large and small amounts, which, it is alleged, the defendant so received and in great part embezzled and fraudulently misapplied to his own use. The second cause of action is founded on four items paid by plaintiffs’ auctioneers to defendant, which were deducted from the proceeds of sale of plaintiffs’ goods at auction, and which, it is charged, were likewise, in great part, embezzled and fraudulently misapplied by the defendant while acting in a fiduciary capacity. The third cause of action is founded upon ten distinct items of money received under circumstances similar to those detailed in the second cause of action. In addition, the plaintiffs allege that the aggregate of the sums of money received by the defendant under said three causes of action from the plaintiffs, as their customhouse broker, and in a fiduciary capacity, was $15,080.29, and that upon an examination by permission of the treasury department, as to the payments upon all importations of plaintiffs, they ascertained that the total of all the duties, penalties, and customhouse charges amounts to $8,526.41, and' that the difference between the two aggregates, to wit, the sum of $6,553.88, is the sum which the defendant received and misapplied, and for which they claim judgment.

The answer admits the receipt of all the moneys charged in these various accounts in the complaint, except one item in the first cause of action, which amounts to $331.16; and, in addition, the first paragraph of the answer admits so much of the complaint as charges that they were received in a fiduciary capacity, and alleges affirmatively the same fiduciary relation. It is difficult to see, therefore, upon what the argument is based, that, under the issues, there will be required an examination of a long account; there being practically, but one issue, viz., the amount of compensation which the defendant was to receive for his services. The argument based on the counterclaim of defendant does not help the plaintiffs, for, as said in Untermyer v. Beihauer, 105 N.Y., 521, 8 St. Rep., 1, “ the defendant has a constitutional right to trial by jury on the issues presented by the complaint and answer, and he does not waive that right by setting up, in addition to his defenses, a counterclaim.” If this could be regarded as an action sounding in tort, then a reference would not be proper. But if we assume, as contended by plaintiffs, that the three causes of action are actions on contract, and if we assume, as we must, that all the items under each contract were covered by a single agreement, it would not require an examination as to the terms and conditions under which each item of money was received by the defendant, but, in proof of each contract, such terms as apply to all the items would only need to be proven. Moreover, the fact that there is more than one contract alleged by way of separate causes of action does not entitle the plaintiffs to a compulsory reference, because it is only where a long account is involved that such can be demanded. We are, therefore, of opinion, as the respondent contends, that an examination of the pleadings in this action will show that the real controversy does not involve an account, but relates solely to one of the terms, not the nature, of the contract under which the moneys in question were received, and that the real point in dispute between the parties, except with respect to one item, is as to the rate of compensation which the defendant was to receive for his services. We think, therefore, that the motion was properly disposed of by the court below, and that the order appealed from should be affirmed, with costs.


text:
    Mary A. Hann, App’lt, v. Weeks W. Culver et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Limitation—Equitable actions.
    Where there is an adequate remedy, both at law and in equity, the limitation which governs the legal, is applicable to the equitable, action.
    Appeal by plaintiff from a judgment dismissing the complaint on the merits, with costs, after a trial before the court.

      Raphael J. Moses, Jr., for app’lt; Thomas Allison, for resp’t.
   Parker, J.

The court rendered judgment dismissing the complaint on the ground that the cause of action pleaded and proved was barred by the statute of limitations. On this appeal that question, and none other, is presented for determination. The plaintiff, Hann, on the 28th day of July, 1881, conveyed to the defendants a large tract of land in Ocean county, state of New Jersey. On the same day, and in the city of New York, her vendees, these defendants, by an instrument in writing not under seal, agreed to convey unto the vendor in said deed, this plaintiff, 100 acres of the land conveyed by plaintiff to the defendants; said 100 acres to be any part of the land so conveyed, which the plaintiff might select, except a tract known as the “ Health Mansion Tract;” the conveyance to be “ a quitclaim or bargain and sale deed ” without warranty. The agreement further declares that such land has already been fully paid, for by the party of the second part. Thereafter, and during the latter part of the year 1881, or spring of 1882, the plaintiff made selection of the 100 acres which she desired to have conveyed to her, and, in addition, caused to be prepared and tendered to the defendants for execution a deed without warranty, as provided by the contract. The defendants refused to execute the deed, or to make conveyance to her, as they had promised by their contract; and subsequently, and on November 16, 1880, they conveyed to the “Barnegat and Long Beach Improvement Company ” all the land which plaintiff deeded to them, including the 100 acres which they had agreed to reconvey. July 23, 1891—considerably more than six years after the happening of either of the events to which we have referred—this action was commenced.

The complaint, after alleging the making of the contract, defendant’s refusal to perform, the conveyance by them to third parties of the 100 acres which was the subject of the contract, stating the purchase price of the entire property conveyed, and asserting that the 100 acres was proportionally of greater value than the residue of the tract, concluded with a prayer for relief that the defendants be adjudged to have received for the plaintiff such part of the entire purchase money as the court may find to be the portion thereof apportionable to the 100 acres selected by the plaintiff, and that the defendants be required to show in what securities they have invested such sums, and to account to the plaintiff for the proceeds of such investments, or for the moneys received by the defendants therefor, with interest.

Plaintiff's right to an action at law for the damages sustained because of the breach of the contract was barred by the statute of limitations at the time of the commencement of this suit, - which does not seek specific performance of the contract, because, according to the allegations of her complaint, the defendants have not been in a position to perform for a period of more than six years. The plaintiff attempts to escape the bar of the statute by praying for an adjudication that the defendants be adjudged to have received the purchase money as trustees, and that they be required to account therefor. An action at law for the damages- sustained by the plaintiff by reason of defendant’s breach would undoubtedly have proven an adequate remedy. But assuming, as the plaintiff contends, that the proceeds of the land in the hands of the defendants were impressed with a trust in favor of the plaintiff, or that the relation existing between them had a trust character, equity would not have had exclusive jurisdiction to afford relief.. In such a case, while the remedy can be pursued on the equity side of the court, a court of law has jurisdiction to give relief in the form of an action for money had" and received, (Roberts v. Ely, 113 N. Y., 128-132; 22 St. Rep., 185 ;) and when the action for money had and received is barred, so is the equitable action. The rule is that, when there is an adequate remedy at law, the election by plaintiff to ask equitable relief does not avoid the limitation which would have governed had he sought legal redress. Butler v. Johnson, 111 N. Y., 204. 19 St. Rep., 85; Rob erts v. Ely, supra; Mills v. Mills, 115 N. Y., 80; 28 St. Rep., 604. In Butler's case the court say :•

“ When the legislature prescribed, for instance, six years, in which to commence an action upon a liability or obligation, express or implied, we think it meant to include in such description an action which might formerly have been prosecuted in either court, upon or by reason of such obligation, and where the remedy would have been adequate in either; and if the form of the remedy chosen were such as would formerly have been cognizable in chancery, yet the limitation applicable to the remedy at law would apply. There can be no sense in enlarging the time by a mere change of the form of the remedy sought, where the subject-matter of the action is precisely the same, and the remedy in either was adequate.”

Under the rule established in the foregoing eases, we think the learned trial court rightly concluded that the plaintiff’s remedy at law was adequate; and that she could not relieve her cause of action from the bar of the statute of limitations by pursuing a remedy in a court of equity.

The judgment should be affirmed, with costs.

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


text:
    Raphael Levisohn et al., Resp’ts, v. William A. Clevenger, App’lt.

      (Supreme Court, First Department, General Term,

      Filed November 17, 1893.)

    1. Evidence—Conversion.
    In an action for conversion, the price at which other similar property was sold, is not relevant upon the question of the value of the converted property.
    2. Appeal—Harmless error;
    Where the irrelevant evidence does not go to the right, hut only to the amount of recovery, and the other evidence is ample to sustain the finding of the jury, it is not prejudicial.
    Appeal by defendant from a judgment entered on a verdict in _avor of plaintiffs, and an order denying a motion for a new trial on the minutes.

      William B. Ellison, for app’lt; Felix Jellonik, for resp’ts.
   Per Curiam.

This action was brought to recover damages for the conversion of thir.ty-four diamonds and one diamond stud, of the aggregate weight of about thirty-four carats. There was no dispute about the number or weight of the diamonds, and but two questions of fact were litigated on the trial: (1) Did the defendant purchase the diamonds in good faith? (2) What was their value? The jury found that the defendant purchased in bad faith, and that the value of, the diamonds was $1,700, which is at the rate of fifty dollars per carat. The evidence is abundant to sustain the verdict that the defendant purchased in bad faith, is liable in trover for the value of the goods, and that they were worth the sum found by the jury. The plaintiff purchased these and other diamonds on the 8th or 9th of January, 1891, and they were permitted to show the- price per carat for which they sold some of the diamonds so purchased. It is urged that this was •error. Undoubtedly the price at which the other diamonds were sold was not a relevant fact upon the question of the value of the diamonds converted. This evidence did not go to the right, but to the amount, of recovery; and, the evidence being ample to sustain the finding that the goods were of the value assessed by the jury, it is apparent, we think, that the error did not prejudice the defendant.

The judgment should be affirmed, with costs.