text:
    The People ex rel. The Trustees of The Village of Jamaica et al., App’lts, v. The Board of Supervisors of Queens Co., Resp’ts..

      (Court of Appeals,

      Filed March 15, 1892.)

    Highways—Supervisors—Certiorari.
    The action of a board of supervisors in passing an act for the improvement of roads in a town is not reviewable on certiorari.

    Appeal from judgment of the supreme court, general term, second department, affirming action of the board of supervisors in passing an act providing for the improvement of public highways in the town of Jamaica, and authorizing the issue of bonds.

      John M Parsons and Augustus N. Weller, for app’lts; Francis H. Van Vechten, for resp’ts.

       Reversing 43 St. Rep., 33.

   Earl, Ch. J.

On the 25th day of May, 1891, the supervisors ■of Queens county passed an act “ for the improvement of certain public highways in the town of Jamaica, in the county of Queens,” in which they provided for grading, regulating and macadamizing certain streets and highways in the village and town of Jamaica. The act provided for raising $400,000 for the expense of the improvement upon bonds to be issued by the county treasurer of the county, and it regulated the rate of interest, the time, of payment and the form of the bonds. It provided that the whole expense of the improvement should be paid by taxes to be levied in the town of Jamaica, and it appointed five persons commissioners to take charge of arid superintend the improvement,- who were to serve without compensation.

The supervisors claimed authority to° pass the act under § 2 of •chapter 855 of the Laws of 1869, and it was passed with the assent of two-thirds of all the supervisors, the supervisor of Jamaica voting therefor.

These relators, claiming that the action of the supervisors was illegal, and unauthorized by law, procured a writ of certiorari to review their action, and the court granting the writ ordered that further proceedings to lay out and repair the highways by the board of supervisors, or by the special commissioners by them Appointed, be stayed pending the certiorari proceeding, or until the further order of the court. The supervisors made return to the writ, and the court upon the return, and after hearing counsel for the respective parties, affirmed the proceedings of the supervisors.

Upon that hearing the counsel for the supervisors, as we infer from the opinion of the court, objected that the proceedings could not be reviewed by writ of certiorari. The court overruled that objection, and decided the case presented to it upon the merits. The same objection is made here, and we think it is insuperable. The court is so clearly without jurisdiction to review the proceedings of the supervisors upon this writ that we ought not to pass, upon the merits involved.

The writ of certiorari is appropriate only to review the judicial! action of inferior courts or of public officers, or bodies exercising: under the laws judicial functions ; and there is no authority to be found in the reports of this state sanctioning its use for any other purpose. When the action of a public officer or of a publics body is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari. And so it has been so often held that the rule-has become elementary. People v. The Mayor, 2 Hill, 9; Matter of the Mount Morris Square, id., 14; People ex rel. Savage v. The Board of Health, 33 Barb., 344; People v. Supervisors of Livingston Co., 43 id., 232; aff’d 34 N. Y., 516; People ex rel. Corwin v. Walter, 68 id., 403; People ex rel. Burnham v. Jones. 112 id.,. 597; 21 St. Rep., 820.

This act of the supervisors of Queens county was purely a legislative act. Legislative power was devolved upon them under the’constitution by the legislature, and the act was as purely legislative as if it had been passed by the legislature itself. If this action by the supervisors can be reviewed by certiorari, then every act and resolution of the board of supervisors, every ordinance of a city board of aldermen, every ordinance and resolution of a village board of trustees, and generally all the acts of public: officers involving the exercise of some discretion could be reviewed in the same way, and thus there would be a wide departure from the practice and procedure which have always prevailed in this: state, and much embarrassment might attend the discharge of legislative, executive and administrative functions by public-, officers, local boards and state departments.

In all the cases cited by the learned counsel for the relatorsin support of this writ, the board or officers whose action was-reviewed by certiorari had some judicial function to discharge, and hence they are all distinguishable from this.

The writ of certiorari was not needed in this case to prevent a. failure of justice or to defeat the consummation of an alleged wrong. Assuming, according to the contention of the relators, that the act of the supervisors was unauthorized and illegal, they and every aggrieved taxpayer could arrest all proceedings under the act by an action instituted under laws specially provided for such cases. Code, §§ 1925, 1928 et seq.; chap. 531, Laws of 1881, as amended by the act, chap. 673, Laws of 1887; Barker v. The Town of Oswegatchie, 41 St. Rep., 821.

The supreme court should not, therefore, have affirmed the action of the board of supervisors, but should have quashed the writ

Our conclusion, therefore, is that the order of the general term should be reversed and the writ of certiorari quashed, without •costs to either party in this court

All concur.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of Patience C. Logan et al., Ex’rs of William J. Logan, Deceased.

      (Court of Appeals,

      Filed March 15, 1892.)

    "Will—Legacies—Construction—Residuary clause.
    By his will testator gave property to his wife in lieu of dower, legacies of $8,000 each to five of his relatives, and a life estate in a similar sum, to he invested by his executors, for the benefit of his sister Jane, with a gift over to her children, naming them. By the residuary clause he directed his executors to sell all his real estate, and after “ the payment of the aforesaid legacies * * * to pay over and divide such remaining sum to and among the legatees mentioned in this my will to whom I hereby give and bequeath the same, share and share alike.” Held, that the residue should be divided into seven equal parts, one part not to be paid to Jane, but to be held by the executors in trust until her death, and then over to her children.
    Appeal from judgment of the supreme court, general term, second department, .modifying surrogate’s decree.

      William D. Veeder and Edward Winslow Paige, for app’lts; Daniel G. Rollins, for resp’ts.

       Modifying 41 St. Rep., 793.

   Maynard, J.

The testator had no descendants, and the principal objects of his bounty were his wife, the son of a deceased brother and five sisters. He gave to his wife some articles of personal property, $10,00'0 in money and two lots in Brooklyn as her absolute property and in lieu of dower. He gave to the nephew $8,000, and a like sum to each of four of the sisters. He made provision for the family of the remaining sister, Mrs. Jane ■Clanny, in the fifth clause of his will, in which he gave to his •executors the sum of $8,000, to have and to hold the same in, trust to and for the uses and purposes therein declared; which were to invest the same and keep it invested upon first bond and mortgage upon improved real estate in the cities of Hew York and Brooklyn, and collect and receive the income therefrom and pay it qver to this sister semi-annually during her lifetime, and upon her death to pay over and divide such sum of $8,000, with the unexpended income thereof, to her two daughters, to whom he says he thereby gives and bequeaths the same.

He then directed that the several legacies theretofore given should not be a charge upon the real estate devised to his wife, but should be paid and satisfied out of his personal estate and •out of the proceeds arising from the sales of his other real estate, as afterwards provided in the will. He also gave to Mrs. Clanny for herself and children the use of his burial plot in Greenwood Cemetery, where the remains of his father and mother are interred. He directed his executors to expend a sum, not exceeding $1,000, for the purchase and improvement of the half of a burial plot in the same cemetery, in which the remains of himself and. wife are to be interred. Then follows the residuary clause, over the construction of which this controversy has its origin ; in which he directs his executors to sell all his real estate not specifically-devised and, to quote the precise language used, “ with the proceeds arising from such sales to pay and discharge in full the; several legacies hereinbefore given and bequeathed. After the payment and satisfaction of the aforesaid legacies, should there be any of such proceeds remaining, then and in such case, I direct, my said executors to pay over and divide such remaining sum to- and among the legatees mentioned in this my will, to whom I hereby give and bequeath the same, share and share alike.” ■

It appeared upon the final settlement of the accounts of the executors before the surrogate of Kings county, that the net residuum of the sales of the real estate, after paying all the general legacies in full and the expenses of administering the estate and commissions, amounted to the sum of $11,302.69; and the question arose as to its proper division and distribution. The executors, insisted that it should be divided into seven equal parts, and that they were entitled to take, hold and dispose of one of such parts-in their trust capacity and upon the same trusts as aré prescribed in the fifth clause of the will. Mrs. Clanny and her daughters, upon the other hand, claimed that the fund should be divided into nine equal shares and that they should each have one of such, shares, making the aggregate amount received by them three times that allotted to the widow or any one of the other collateral branches of the testator’s family. The surrogate adopted this view and decreed accordingly. Upon an appeal by the executors-the general term made an order modifying .this decree so as to-divide the fund into seven equal shares and directing one of such shares to be paid to Mrs. Clanny. Her daughters now seek to-secure a reversal of this order.

We-are constrained to differ with both the surrogate and the-supreme court, and to' hold that while this residuum should be divided into seven equal parts, one of such parts should not be-paid to Mrs. Clanny, but should be given to the executors and be held by them upon the same trusts as the legacy of $3,000, which they are required to hold for the benefit of herself and her daughters. In a strict legal sense the executors ar.e the legatees to whóm the moneys disposed of by the fifth-clause are given. Under our statutes the entire estate in the property bequeathed is vested in them for the time being for the purposes of the trust They take jointly, or as onejperson, and not in severalty. Mrs. Clanny takes-no part of the principal of the estate given; nothing but the income, and the gift to her daughters is not to take effect until after • her death. It is reasonable to assume that when the testator, in the thirteenth clause, speaks of “ the legatees mentioned in this-my will,” he had reference to the persons in whom the immediate; title to the legacies given were vested by its previous provisions.

It is undoubtedly true, as the counsel for the appellants argue,, that where the meaning of the testator is apparent from the language used, the plain import of the language cannot be departed, from, and that words in a will are generally to be deemed to have: been used in their ordinary and natural sense; but there is another canon of testamentary construction equally well recognized, that when words are descriptive of a class of beneficiaries, their scope and application may depend, in a large degree, upon the apparent scheme of the will and the signification in which they, or kindred words, are. used in it elsewhere. They may be enlarged or restricted as may best comport with the evident intention and purpose of the testator.

There are many apt illustrations of the application of this rule.. In Cromer v. Pinckney, 3 Barb. Ch., 466, and Brower v. Bowers, 1 Abb. Ct. App. Dec., 214, it was held that the words •“ nephews and nieces ” should be construed to mean not only grand-nephews, and nieces, but even a great grand-niece.

In Bowne v. Underhill, 6 T. & C., 344, the term “ children was made to include grand-children; in Prowitt v. Rodman, 37 N. Y., 42, it was declared that it may include issue however remote-' and will include such issue whenever the reason of the thing demands it; in Low v. Harmony, 72 N. Y., 408, the term was in one clause of the will held to exclude grand-children and in another clause to include them; and in Gelston v. Shields, 78 N. Y., 275, the word was limited to children of the testator by his reputed wife and was held not to include his children by his lawful wife. So the word “ heirs ” has been limited to children, Scott v. Guernsey, 48 N. Y., 106, and the heirs of a particular person to the heirs of his body. Kiah v. Grenier, 1 T. & C., 388. In Weeks v. Cornwell, 104 N. Y., 325; 5 St. Rep., 632, this court held that the term “ legatees ” meant the devisees of the real estate who had only a life interest therein and excluded the remainder-men; and in Sholl v. Sholl, 5 Barb., 312, the words “ all the legacies before mentioned,” in the will, were held to mean the legacies which were chargeable upon the real estate and no others.

Many similar cases might be cited, but these are enough. It is unnecessary to allude to the special circumstances which controlled the decision in each case. They were always of such a character as to afford rational grounds for the conclusion that the-words construed were used in the enlarged or the restricted sense attributed to them.

The effect to be given to testamentary language cannot depend upon conjecture, much less upon judicial caprice. It must stand upon some sound principle of interpretation, and, in the present case, we ought to give to the terms employed an application which will preserve the harmony of the scheme plainly outlined in the will. The first thing which impresses us upon reading that instrument is the absolute impartiality of the favors shown by the-testator to the different collateral branches of his family in disposing of the bulk of his estate. Each branch is given through its chosen representative exactly the same sum. It is not to be inferred that the testator intended to break up this equality of distribution in disposing of the residuary estate. For some undisclosed reason he selected his executors as the recipients, in the-first instance, of the legacy given for the benefit of Mrs. Clanny -and her daughters, and it is probable that the same reason would have been equally potent in determining the direction which the share of the residuary fund intended for her family should take. It is not likely that he would have given to them, unprotected by any trust, a sum which, if the appellants’ contention is upheld, would amount to nearly one-half of the legacy in trust

It is also to be observed that the main .object of the conversion of the real estate into money is to provide the funds for the payment and discharge in full of the several legacies given in the previous provisions cf the will, one of which is the legacy to the executors, and when in the same clause he directs that if, after the satisfaction” of such legacies, there should be any residue it should be equally divided between the legatees mentioned in the will, he evidently had in mind the same persons to whom the general' legacies were to be paid, who in the fifth clause, as we have seen, .are the executors as trustees, and not the beneficiaries of the trust.

The order appealed from should be modified so that the part therein directed to be given to Jane Clanny be paid to the executors, to be held and disposed of by them upon the same trusts as the legacy in the fifth clause of the will, and, as so modified, the •order should be affirmed, with the costs of both parties upon this appeal to be paid out of the residuary estate.

All concur.


author: Landon, J.

text:
    Frank W. Miller, Resp’t, v. The Union Switch & Signal Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Contract—Construction—Termination.
    A contract of employment provided that J., plaintiff’s assignee, should be the general manager of defendant, and assign to it the exclusive right to use all his inventions; that the contract should continue for a period of ten years, subject to termination by either party by one year’s notice in writing to the other parly at any time after the second year, or by the ■death or inability of J. By the eighth clause it was provided that, on the termination of the agreement, said company should have a license, not •exclusive, to use all the inventions that may have been used by it, on payment of $6,500 a year, payable quarterly. In an action for a quarterly instalment, Held, that the dismissal of J. from the employment^ of the company was a mere breach of the contract and not a “ termination” of the agreement as provided for in the seventh clause, and, therefore, the eighth clause was not brought into operation.
    (Following Johnson v. Union S. & S. Co., 43 St. Rep., 337.)
    3. Same—Pleadings—Admission in.
    The complaint alleged that “the said contract was terminated by said company, and the said J. was notified by the defendant to that effect, and that his services would he no longer accepted by the said defendant alter said first day of March, 1888.” The answer contained no denial of tnese allegations, hut admitted “ that on March 1,1888, the defendant dismissed J. from its employ.” Held, that there was nothing in the pleadings to preclude the defendant from insisting that the actual termination was not the one contemplated by the contract.

      Appeal by the defendant from a judgment directed by the general term of the superior court of the city of New York upon, a verdict directed by the trial court in favor of the plaintiff, and upon exceptions ordered to be heard in the first instance at the-general term.
    The plaintiff, as assignee of Charles E. Johnson, brought the-action to recover $1,625 alleged to have become due and payable: to said Johnson under a written contract between him and the-defendant, executed September 20, 1886, whereby it was agreed in substance (1) that Johnson should become the general manager of the defendant; (2) defendant to pay him a salary of $4,500 per year; (3) he should sell to the defendant the exclusive right to use all his inventions relating to the signal business, and also the right to use the inventions of Henry Johnson relating to signal switches, then or thereafter acquired by Charles E. Johnson, and (4) defendant to pay him $3,000 per year therefor; (5) employ Henry Johnson as manager of its works at $4,000 per year; (6) defendant also to pay Charles E. Johnson in addition to the-above ten per cent net profits of the company.
    The contract further provided as follows:

      “Seventh. It is mutually agreed that this contract shall continuefor a period of ten years, subject to termination by either party, however, by one year’s notice (in writing) to the other party at any time after the second year, or by the death of Charles E. Johnson, or by his permanent inability to perform his duties as general manager.”
    “Eighth. It.is further mutually covenanted and agreed that in . the event of the termination of this agreement, the said company, by reason of the expenditures that shall have been made during the continuance of this agreement, shall have a license, not exclusive, to use all the inventions that may have been used in carrying on the business of the company, on “the payment of sixty- • five hundred dollars per year, said sum to be paid quarterly; and shall be entitled to purchase from the said Charles E. Johnson, or his executors, the exclusive right to use all of the inventions-upon as favorable terms as he or his executors may be willing to-grant to other parties.”
    “ Ninth. This agreement to take effect from June 1, 1886, so-far as the management of the business is concerned, but to take-effect, so far as the payments are concerned, July 1, 1886; all accounts and expenses, and all details with reference to the past, business of the company to be adjusted during the month of June. ”
    The complaint alleges “ that the contract continued in existence and was acted upon by both parties thereto, and the said Charles E Johnson continued under said contract to be general manager of the defendant company down to the 1st day of March, 1888, when the said contract was terminated by the said defendant company, and the said Charles E. Johnson was notified by the defendant to that effect, and that his services would be no longer accepted by the said defendant after the 1st of March, 1888.”
    “ That under said contract the defendant had used, and was, on the 1st day of March, 1888, still using, and has since that time -continued to use, certain appliances invented by said Charles R. Johnson, and for which he held letters patent, and certain other inventions and appliances invented by Henry Johnson, but held and controlled by said Charles R. Johnson, which were referred to in said contract; ” and further alleges that there was due to, Charles R. Johnson on September 1, 1888, to be paid him by defendant as royalties under the contract,' $1,625 for the quarter ■ending that day, and specifies the particular inventions referred to in the contract.
    The answer admits the making of the contract, and “ it admits ■that on March 1, 1888, it dismissed Charles R. Johnson from its employ,” denies its use of his inventions after that date, and also ¿hose of Henry Johnson.
    F urther facts are stated in the opinion.
    John W. Houston, for app’lt; George W Miller, for resp’t

       Reversing 30 St. Rep., 810.

   Landon, J.

The theory of the plaintiff’s action is that the ■contract between' Charles R. Johnson and defendant was terminated March 1, 1888; that thereafter the defendant continued the use of his inventions and those of Henry Johnson, and thus by the terms of the eighth provision of the contract became indebted to Charles R. Johnson in the sum of $1,625 for the quarter ending September 1, 1888.

. The defendant’s contention is that the dismissal of Charles R. Johnson from its employment was a mere breach of the contract, ■and not the termination of it provided for in its seventh clause, .and therefore the eighth clause of the contract was not brought into operation.

This construction of the contract has recently been upheld by this court, in an action for another instalment of royalties under the contract brought by Charles R. Johnson against this defendant. Johnson v. Union S. & S. Co., 42 St. Rep., 337.

This construction of the contract requires a reversal of the judgment, unless such a termination of the contract as brings its •eighth clause into operation is admitted upon the pleadings. The .general term held that it was admitted. In construing the pleadings it is proper to notice the construction given them by the trial -court in this respect.

The allegation of the complaint is that “ the said contract was "terminated by said company, and the said Charles R. Johnson was notified by the defendant to that effect, and that his services would be no longer accepted by the said defendant after said 1st day of March, 1888.”

The answer contained no denial of these allegations, but contained this allegation: “It admits that on March" 1,1888, the defendant dismissed Charles R. Johnson from its employ.”.

Upon the trial the plaintiff’s counsel contended that the pleadings admitted the termination of the contract. The defendant’s counsel contended that only the termination of employment was admitted. After considerable discussion the defendant’s counsel remarked that if there was any doubt as to his construction of ■the pleadings he would move to amend at once. The plaintiff’s counsel was heard upon the motion to amend. The court disposed of the motion by this remark : “ There is nothing in this •case or in the pleadings that prevents your alleging here that whatever termination there was was not the termination provided for by covenant eight of the contract.” Defendant's counsel then said: “I only asked for the amendment upon the assumption that there might besome other contention made.”

There was no question, apart from the allegation in the complaint that “ the said contract was terminated by said company,” but that the dismissal of Mr. Johnson was what effected the alleged termination.

The complaint apparently alleges that the termination of the contract was thus effected. The plaintiff proved upon the trial the summary and peremptory manner in which he was dismissed.

The trial court, therefore, adopted no forced or strained, con- ■ struction of the pleadings when it held, as it in effect did, that there was nothing in them to preclude the defendant from insisting that the actual termination was not the one contemplated by the contract. Except for such a construction of the pleadings, justice would seem to indicate that defendant’s motion to amend the answer would have been granted.

With that construction no amendment was needed.

The defendant was permitted to insist upon the defense which the evidence disclosed. It would be unjust now upon appeal to ■deprive the defendant of that defense, by receding from the construction of the pleadings adopted and accepted upon the trial, and giving them a contrary construction. Especially is this so in view of the fact that the termination of the contract alleged in the complaint is as consistent with a termination which does not •call the eighth clause of the contract into operation,"as with the termination which does; and therefore the admission in the answer •may be true without conceding the proposition upon which the ¡plaintiff’s right to recover rests.

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

All concur.


author: Haight, J. Bradley, Yann and Brown,. JJ.,

text:
    Stephen Coursey et al., App’lts, v. John Morton et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

      1. ASSIGKNMEliT FOR CREDITORS—FRAUD.
    The intentional withholding and secreting of assets of a substantial value from the possession of the assignee is a fraud upon the rights of creditors, and renders the assignment void.
    .3. Same.
    Defendants, on the 13th of September, executed an assignment for the benefit of creditors, but it was not recorded until the 14th, during which time it had been held by a person who was to file it if wired by the attorney that a certain settlement could not be made in New York. On the morning of the 14th, and before it was recorded, defendant drew $96S from the bank and gave it to his wife, who secreted it about her person, for eight months, but turned it over to the assignee about four weeks be*fore ■ the trial of this action. Held, that this was in fraud of plaintiffs” rights, as defendant must be deemed to have intended the natural and inevitable consequence of his acts and could not change the rights of plaintiffs by giving up the money after the action was begun and about to> be tried.
    3. Same.
    Defendant had no right to secrete the money for the purpose of using it in effecting a compromise.
    (Bradley, Vann and Brown, JJ., dissent.)
    Appeal from a judgment of the general term, fourth department, affirming a judgment entered upon the report of a referee,

      Louis Marshall, for app’lts; George Barrow, for resp’t Smith ; Goodelle & Nottingham, for resp’ts Yietor and Achelis; Waters &■ McLennan, for resp’ts J. & T. Morton.

       Reversing 31 St. Rep., 1004.

   Haight, J.

This action was brought to set aside a general assignment for the alleged benefit of creditors upon the ground of fraud.

John and Thomas Morton were co-partners engaged in the manufacture of shawls under the firm name of Morton Brothe, at Skañeateles, H. Y. On the 13th day of September, 1887, they executed an assignment in writing to the defendant Sidney Smith of all their property, real and personal, owned by them as co-partners and separately and individually, excepting such as was by law exempt from levy and sale under execution, in trust for the payment of their debts. The trust created by the assignment was accepted by the assignee in the form required by the statute, and the assignment was then delivered to the attorney who drew it, with the understanding that he should proceed to Hew York with the assignor, Thomas Morton, and if possible procure from. Messrs. Yietor & Achelis a further advance upon the stock of shawls shipped them, and in case of their failure to procure an advance, to have the assignment recorded. The assignment was left with a person in Syracuse by the attorney, with directions to record the same if he should wire him so to do, and then on the evening of that day the attorney, with Thomas Morton, proceeded to Hew York. On the morning of the next day they attempted to procure the advance upon the shawls and failed, and thereupon the attorney telegraphed to the person with whom he had left the assignment to have it recorded, and the same was so recorded in the office of the clerk of the county of Onondaga on the afternoon of the 14th day of September, 1887, and thereafter, and on the 5th day of October they executed and filed an inventory and schedule of their assets and liabilities duly verified as required by statute.

The complaint alleges that the said assignors have omitted from the inventoiy and schedules filed by them in the Onondaga county clerk’s office a large amount of moneys for the purpose of defrauding their creditors. ■ This allegation was denied by the answer.

The facts upon this issue are without substantial dispute. They .are- as follows : On the morning of the 14th of September, 1887, after the assignment had been drawn and executed as above -stated, but before it' had been recorded in the clerk’s office, John Morton drew from the Skaneateles Bank upon the firm check .signed by him $963.50, and delivered the same to his wife, who -.secreted it in her breast and thus retained it secreted upon her ^person for about eight months, or until about the 1st day of May, 1888. In delivering the money to his wife he told her to put it away and hold it until he called for it again. Before drawing the money from the bank Morton had a talk with his attorney in reference thereto, and asked what they would do for living «expenses, and they were told that they would have to get along as best they could, but everything they had must go to their assignee. Morton then asked him if they had a right to pay •debts, and was advised that they had a right to draw the money before the assignment was delivered and pay just and bona fide debts with it. John Morton testified that in March previous he had obtained from his wife the sum of $300, moneys which she had saved out of that furnished her by him for household -expenses, etc., and that when he drew the money from the bank he first intended to repay his wife the money had from her, but .afterwards he thought it would not be right to pay her, and so he held it to give to any one that it belonged to. This statement he subsequently changed, and testified : “ When 1 changed my mind in regard to paying my wife I expected to use the $963.50 to compromise with our creditors.” On the 21st day of January, 1888, he was examined in supplementary proceedings, .and on that occasion testified that the firm had no personal prop•erty aside from the shawls in the hands of the parties in Mew York and no money in the bank, but upon a further examination upon the 3d day of February thereafter admitted that he had the $963.50 in his house “ awaiting for whoever it belonged to.”

Thereafter and on or about the first day of May, upon the demand of the assignee, the money was paid over to him. This was -about four weeks before the trial of,this action. John and Thomas. Morton testified that the assignment was made for the purpose of -gaining time, but that it was not made with the intention of hindering, delaying or defrauding creditors. The money in question was not entered upon the inventory; the attorney who drew up the inventory testified that he supposed he knew all the circumstances in relation to the assets as well if not better than the Mortons did themselves, and that he made up the schedules without consulting them.

The rule is that the intentional withholding and secreting of ussets of a substantial value from the possession of the assignee is a fraud upon the rights of creditors and renders the assignment void. Shultz v. Hoagland, 85 N. Y., 464; Talcott v. Hess, 31 Hun, 282; Iselin v. Henlein, 16 Abb. N. C., 73; Chambers v. Smith, 38 St. Rep., 213.

The claim of Mrs. Morton was not one which under' the .circumstances could be paid out of the assets of her husband or that’ of the firm, and Morton wisely refrained from making use of the; money drawn from the bank for that purpose. Coleman v. Burr„ 93 N. Y., 17.

Morton first tells us that after reaching the conclusion • not to pay his wife that he then “ held it to give to any one that it belonged to.” But he knew that it belonged to the assignee and that it was the money of the firm; that he and his brother had made a general assignment of all of their property; that the assignment included this money, and that he had been advised by his attorney before drawing the money that everything they had must be turned over to the assignee; that if any debts were paid they must be Iona fide debts and paid before the assignment was delivered. He had not us$d the money to pay debts before the assignment was delivered; he had never used it to pay debts, but instead thereof had during the eight months that intervened after the assignment kept the same secreted upon the person of his wife.

It is said that the money was omitted from the inventory for the reason that it was made up by the attorney without consulting the Mortons, and John says he supposed the money was in,, but it was signed and sworn to by them. John says he did not. examine it, but as we have seen as late as January 21, 1888, in¡ giving his testimony in supplementary proceedings, John still insisted that they had no personal property aside from the shawls in the hands of the parties in Rew York, and no money in the bank. These are the excuses given, but they do not change the main facts. The $963.50 belonged to the firm and was omitted from the inventory; it was drawn from the bank after the assignment, was executed and before it was recorded and was secreted upon, , the person of the defendant John Morton’s wife for the space of about eight months thereafter, and until it had been discovered in legal proceedings instituted for that purpose.

Every party must be deemed to have intended the natural and inevitable consequences of his acts, and where his acts are voluntary and necessarily operate to defraud others he must be deeiped to have intended the .fraud. Coleman v. Burr, supra; Cunningham v. Freeborn, 11 Wend., 240-252; Ford v. Williams, 24 N. Y., 359; Edgell v. Hart, 9 id., 213; Wilson v. Robertson, 21 id., 587-593.

The necessary and inevitablé consequences of the acts of Moiv ton, as above related, were to deprive the creditors of the money so retained by him, and they were thus defrauded out of that, which belonged to them. True, he says he did not intend to-hinder, delay or defraud, but his acts necessarily did defraud, by-depriving the creditors of that which belonged to them, and in the eye of the law he must be deemed to have intended that, which he knew to be the inevitable consequences of his acts. But he says he retained this money expecting to use it to compromise with his creditors. It appears that after the assignment an effort was made on the part of his attorney to bring about a compromise. This fact does not change the character of that transaction. He had no right to retain and'secrete the money for the purpose of using it in effecting a compromise. Whilst a creditor has the right to make a statement of his financial condition and ask his creditors to compromise, an assignor has no right to secrete a part of his assets and then induce his creditors to accept a less sum than they otherwise would, under a supposition that the whole assets had been disclosed in the inventory.

The money retained was of a substantial amount. It was substantially all of the assets of the copartnership that were at the time available. There was real estate, but it appears to have been heavily encumbered with mortgages. The shawls manufactured by the firm had been shipped to dealers in New York for sale, and they had advanced thereon all that they could be induced to. There was some office furniture and coal on hand, and four hundred pounds of wool, some mill supplies and mill machinery, and $600 that belonged to Thomas Morton individually. These were the assets. The liabilities exceeded $20,000 in amount. It will therefore be readily seen that the money withheld by the defendant John was an important, if not the greater, part of the assets.

It is said, however, that because the money was paid over to the assignee that no harm has been done to the creditors. It was not, however, paid over until after this action was brought and nearly ready for trial. At the time the action was brought the money was fraudulently withheld from the assignee and the assignment was then void. The Mortons could not by their subsequent acts be permitted to change the rights of the parties as they then existed. To do so would be equivalent to saying to assignors in the future that they could retain and secrete such portion of the assets as they saw fit, and if not discovered it would be all right, but if discovered they could at any time before the trial turn the same over to the assignee, and thus maintain the validity of their assignment.

It appears to us that the exceptions were well taken to the refusals to find the 9th, 10th and lOJ-th requests, and to so much of the 10th finding of fact as related to the matter discussed, and that the judgment should consequently be reversed and a new trial granted, with costs to abide the event.

All concur, except Bradley, Yann and Brown, JJ., dissenting.

Bradley, Yann and Brown,. JJ.,

dissenting, were of the opinion that, while the general term might, with great propriety, have reversed the judgment upon the ground that the findings of the referee were opposed to the weight of evidence, still, as there was some evidence to support the referee’s conclusion, this court could not interfere.


author: Per Curiam.

text:
    Cyrus D. Angell, Resp’t, v. William Van Schaick et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Brokers—Commissions—Law op poreiqn state.
    In an action by a Pennsylvania broker for commissions on a sale of real estate in that state, the answer set up a statute of that state requiring real estate brokers to take out a license, and in default of doing so imposing a penalty of $500 to he recovered by action, and alleged that the highest court of that state had decided in a proper case that a broker could not recover compensation who had not taken out a license. On demurrer, Held, that defendants pleaded sufficient facts to enable them to prove what the Pennsylvania courts have decided.
    2. Same.
    It was sufficient to aver that the courts of Pennsylvania hold that a real estate broker cannot recover his commissions unless authorized to engage in that business as required by the statutes of that state.. It was neither necessary to set out the facts on which the decisions were rendered nor to refer .to the cases by title nor to aver when and where reported, if reported.
    Appeal from a judgment of the general term of the supreme court, fifth judicial department, which reversed a judgment entered on the decision of a special term, which overruled plaintiff’s demurrer to defendants’ second cause of action.

      J$. D. Northrup, for app'lts; Henderson & Wentworth, for resp’t.

       Reversing 30 St. Rep., 714.

   Per Curiam.

It is alleged in the complaint that the defendants owned real estate in McKean county, Pennsylvania, that the plaintiff was a real estate broker having his office in that county, and that in 1886 the defendants employed the plaintiff to sell their realty, agreeing to pay him $600 for his services if he sold it for $30,000. It is further alleged that the plaintiff effected a sale for the sum mentioned. An answer was interposed in which two defenses were pleaded: (1) A general denial; (2)' That in 1885 and 1886 the plaintiff was a resident of and engaged in the business of a real estate broker in McKean county.

It was further averred that by the statutes and laws of that state all persons are forbidden, under a penalty of $500 for each offense, to engage in that business without paying to the treasurer of the county a fee fixed by the statute, and obtaining from that officer a commission authorizing them to carry on the business. It was also alleged that “ The highest court of ultimate and appellate jurisdiction of said state of Pennsylvania, in a proper case brought before it for review, has decided and still holds that a real estate broker not having such commission, or not having paid or caused to be paid into the treasury of the proper county the sum of money required by said laws and statutes to procure the same, cannot recover compensation or commissions for his services as such real estate agent or broker. That by the laws and statutes of the state of Pennsylvania the plaintiff was absolutely prohibited from using or exercising the business or occupation of a real estate broker within the state of Pennsylvania under a penalty of $500 at and during all the times-and periods of time mentioned in said complaint, and was also thereby prohibited from recovering in an action any compensation of commissions for his alleged services as a real estate broker alleged .in said complaint.”

The statutes are referred to in the answer by the dates of their enactment, and the most important sections are literally set forth. It was further alleged in the answer “ That the plaintiff, before the 1st day of January, 1887, had never paid or caused to be paid the sum or fee provided and required by said § 5 of said laws and statutes.” “ That the whole of the said alleged services of the plaintiff for the defendants herein, and all the other matters and transactions alleged in said complaint, so far as any thereof ever occurred, took place, or were transacted, or performed, occurred, took place and were performed and transacted in said city of Bradford, in said county of McKean and state of Pennsylvania, and none thereof were performed, transacted, nor agreed to be done, performed or transacted without said'county of McKean; and that the land and property alleged and mentioned in said complaint was wholly situated in said county of McKean.” To this defense the plaintiff demurred “ upon the ground that such second defense is insufficient in law, upon the face thereof, in not stating facts sufficient to constitute any defense.” This demurrer was overruled at the special term, and a judgment entered which was reversed at the general term, and leave was granted the defendants to appeal to this court

The learned counsel for the plaintiff says in his points that the second defense is insufficient because: (1) “ There is no averment that the facts appearing in the complaint and in the answer demurred to, do constitute such a proper case; (2) There is no averment that the highest appellate court of said state of Pennsylvania ever did decide or ever will decide as in the answer averred upon the facts now appearing in these pleadings; (3) What facts must appear to constitute a proper case in the judgment of that court of ultimate and appellate jurisdiction is left wholly unstated.” The position of counsel is not very clearly stated. Of course no decision has been made by the courts of Pennsylvania upon the identical facts presented by the pleadings in this case, because they have never been before those courts, but if the learned counsel for the plaintiff means that the defendants should have averred in their answer that the decisions were made in cases involving facts like or similar to those in the case at bar, that mode of pleading would be open to his objection that such an averment would be but an allegation of the conclusion of the pleader that the facts involved in the decided cases were in legal effect the same as those set out in the answer in this case, and the result would be that all of the facts in the decided cases would have to be set forth in order to enable the defendants to prove the decisions of that state.' We are not now concerned about what the courts of Pennsylvania have decided or upon what particular facts their decisions were made. The sole question before us is, have the defendants pleaded sufficient facts to enable them to prove what those courts have decided. Upon the trial those decisions will, or may be proved in the'manner provided by our laws, and then the courts of this state will be called on to determine whether the adjudications made by the courts of the state of Pennsylvania, are decisive of this case. It is sufficient to aver that the courts of that state have held that a real estate broker cannot under their statutes recover compensation for his services in negotiating sales without having received a commission authorizing him to engage in that business. It is neither necessary to set. out the facts on which the decisions were rendered, nor' to refer to the cases by title, nor aver when or where reported, if reported.*.,

The validity of this contract must be. determined by the laws of the state of Pennsylvania, and we think that under the rule laid down in Marie v. Garrison, 83 N. Y., 14, and Lorillard v. Clyde, 86 id., 384, it is sufficient to aver that the courts of Pennsylvania hold that a real estate broker cannot recover "his commissions unless authorized to engage in that business as required by the statutes of that state.

The judgment of the general term should be reversed, with costs, and the plaintiff should have leave, upon the payment of costs within twenty days, to withdraw the demurrer and try the issues raised by the pleadings.

All concur.


author: Vann, J.

text:
    Israel D. Goodman, Resp’t, v. Jacob Cohen, App’lt.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Contract—Statute of frauds.
    Defendant, a dealer in damaged goods, agreed to purchase $600 worth of plaintiff’s goods which had been damaged by fire and to pay therefor to the insurance companies, which were to pay the same to plaintiff in addition to the damages fixed by defendant as appraiser; the latter also agreed that if either of the companies failed he would pay its share directly to plaintiff. Held, that defendant did not agree to pay for the goods if the company did not pay for them, hut to pay for them in any event, either to the company or to the plaintiff, and so the contract was not within the statute of frauds.
    2. Same—When contract not void as against public policy.
    There was nothing in the contract that was necessarily so opposed to public policy as to call upon the court to interfere without an exception.
    (Follett, Oh J., and Landon, J., dissent.)
    Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment entered upon the verdict of a jury and also affirming an order denying a motion for a new trial.
    Action to recover the sum of $105.26, the alleged purchase price of certain goods claimed to have been sold by plaintiff to defendant, upon the promise of the latter to pay said amount to the Citizens’ Insurance Company of Mobile, provided it should not suspend business, or go into liquidation, or become insolvent within sixty days, and if either of those events happened, upon the further promise to pay said sum to the. plaintiff.
    The complaint alleged the making of said agreement, the delivery of the goods to the defendant thereunder, the insolvency of said insurance company within the period specified, a demand of payment and a refusal by defendant to pay. The answer was a general denial.
    The facts, so far as material, appear in the opinion.

      JBenno Loewy, for app’lt; Arthur Furber, for resp’t.

       Affirming 29 St. Rep., 716; see 82 id., 675.

   Vann, J.

Upon the trial it appeared that in January, 1887, the plaintiff was a dealer in men’s underwear at No. 80 Bast Broadway, in the city of New York. His stock of goods was insured to the amount of $4,750 in four insurance companies, including the Citizens’ of Mobile, and, a loss having happened by a fire that occurred on the 3d of said month, one Sunshine, selected by the plaintiff, and the defendant, selected by the insurance companies, were duly appointed appraisers to estimate the damages, with power to select a third person as umpire if they could not agree. The appraisers met, but after much effort could not unite in making an award. The defendant had been instructed by the representative of all the companies to make the appraisal as brief as practical, to avoid choosing an umpire if possible, and if’ there were a few items that the appraisers could not agree upon, to allow them as a total loss and take the goods, which the insurers were authorized by their respective policies to do. Some damaged goods that cost $500 were in fact delivered by the plaintiff to the defendant, who took them away, sold them and turned the proceeds over to the insurance companies, and on the trial he claimed that he did this as agent of the insurers, pursuant to their directions and under the provisions of the policies permitting it.

On the other band, the plaintiff claimed that the defendant, in order to facilitate an adjustment of the disputed items of damage, purchased said goods for himself at their cost price, and in his own ñame and behalf promised to pay $500 for the same to the several insurance companies in proportion to the amount of their respective policies, but as there was some doubt as to the financial condition of the Citizens’ Insurance Company of Mobile, that he further promised that if that company should become insolvent or fail within sixty days, he would pay its proportion, or $105.26, to the plaintiff. The amount so to be paid to the companies was to be included in the award, as if the goods thus sold had been a total loss, and the plaintiff was to get his pay from all except the Citizens’ Company when the award was paid, and from that company also unless it failed, in which event the defendant was to pay plaintiff directly for a proportionate part of the goods. Bach party supported his theory by the direct and positive testimony of several witnesses, and the defendant’s version was to some extent corroborated by documentary evidence. The jury, however, found for the plaintiff, and hence the contract, even if unusual in form and improbable in fact, must for the purpose of this appeal be regarded as established in accordance with his theory. After the sale and delivery of the goods the appraisers made an award, which included said goods as totally lost, and each company, except the Citizens’ of Mobile, paid its proportion of the award to the plaintiff.

The defendant claims that the agreement was a special promise by him to answer for the debt or default of the insurance companies, and that it was void because not in writing. This depends on who bought the goods. If the insurance companies bought themthe debt thereby created was for them to pay and the promise of the defendant was to answer for their debt, but, as the jury have found, he bought the goods for himself, and hence the debt was his own. The promise was to pay for goods purchased by the defendant; not to pay any part of the damages caused by the fire.

The agreement was not made by him in behalf of the companies, but in his own behalf. The companies did not elect to take the goods, but the defendant elected to buy them of the plaintiff, who owned them at the time, and in consideration of the sale he promised to pay the price agreed upon to the appointees of the plaintiff, and so far as the amount in question is concerned, to the plaintiff himself in a certain contingency, which subsequently took place. The defendant was not .to become liable upon the default of another, but was absolutely liable by the terms of the agreement. There was no original promise by one and a collateral promise by another, 'hut a single promise made by the defendant for a consideration moving directly to himself. He did not agree to pay for the goods if the company did not pay for them, but to pay for them in any event, either to the company or to the plaintiff. The contingency mentioned did not affect his liability, but only the method of discharging it, as he was to pay the same amount whether it happened or not. So far as the purchase of the property is concerned, and that is all that is here involved, there was only one debt, and that was never binding on the company, but on the defendant alone. We think that the contract, as the jury found it, was not within the statute of frauds. Mallory v. Gillett, 21 N. Y., 412; Leonard v. Vredenburgh, 8 Johns., 29; Rector, etc., v. Teed, 120 N. Y., 583, 588; 31 St. Rep., 908; Wales v. Stout, 115 N. Y., 638; 23 St. Rep., 982; Milks v. Rich, 80 N. Y., 269.

The claim that there was no evidence that the Citizens’ Insurratice Company had failed is not well founded, for one of the witnesses testified to an admission 'of the defendant that he knew it had failed. There was other testimony on the same subject in favor of the plaintiff’s theory, and no effort was made by the defendant to show that said company was solvent.

It is further claimed that the agreement, as testified to by the plaintiff and his witnesses, was void as against public policy, because the defendant had no right while acting as an appraiser to buy any part of the subject of the appraisal for himself. No such defense was pleaded in the answer, and the question is raised by no exception taken upon the trial, but we are asked to consider it upon the ground that the court should upon its own motion refuse to enforce a contract if it is obviously opposed to the policy of the law.

The defendant, while acting as an appraiser, acted as a judge and if the contract necessarily tended to bias his judgment or affect his impartiality in that capacity it was doubtless void as against public policy. The contract, however, if performed according to its terms, could have had no such effect. The defendant, in his own behalf and not in behalf of the companies he represented, purchased damaged goods and agreed to pay what they were worth before they were damaged to the companies interested, in proportion to their interest. The purchase price was included in the award on the same basis as if the goods had been a total loss, but as the companies were to receive the same amount from the defendant they could lose nothing. On the other hand, the defendant would lose by the transaction, unless he could sell the unsound goods at their value if sound, or persuade, for he could not compel, the companies to reimburse him for the difference. In other words, he took upon himself the burden of loss, so far as the goods in question were damaged. To that extent, by force of the contract now attacked as illegal, the companies were in effect relieved of the obligation of their policies.

Certain goods of the plaintiff had been damaged to the amount of $1,134.50, which was agreed upon by the appraisers.. Certain other goods worth $500 at cost price had also been damaged, seriously, as claimed by the plaintiff, but slightly, as claimed by the defendant The appraisers could not agree upon the amount of damage that these goods had sustained. In order to close the matter up the defendant agreed to buy them of the plaintiff for $500, and instead of paying that sum directly to him, to pay it to , the companies and include it in the award, making it $1,634. As stated by one of the witnesses, the defendant said to the plaintiff: “ In order to close the damages, I am going to buy personally $500 worth of goods and in order that it should not appear crooked before the companies, I will divide it proportionately, according to the amount of insurance of each company. I will give them my check for it, and they in return will give you their check.” In case one of the companies failed, he added: “I will give you my check for it at the expiration of the time.”

He was to pay the companies for the goods he took, and they were to pay the plaintiff. By no possibility could the defendant make anything out of the matter, and it was only by the voluntary action of the companies that he could be saved from loss. While we deprecate the tendency of any contract, however fair and honest it may be, whereby an arbitrator deals with the rern adjudicandam, we see nothing in the contract under consideration that necessarily is so opposed to public policy as to call upon us to interfere without an exception, because if the point had been raised upon the trial it might have been shown that the purchase was made by the defendant with the knowledge and consent of all the insurance companies.

After examining all the exceptions to which our attention has been directed, we find no error requiring a reversal of the judgment, which should, therefore, be affirmed, with costs.

All concur, except Follett, Ch. J., and Landon, J., dissenting.


author: Haight, J. Vann, J.

text:
    Otto Schmidt, Resp’t, v. The Steinway & Hunter’s Point Railway Company, App’lt.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    Negligence.
    A sewer pipe standing on end with planks across it at the edge of an excavation in the street, as a barricade, was negligently placed by the employees oí the contractor so near the track that it was hit by a passing street car and knocked into the hole, injuring plaintiff. The driver standing on the platform, looking at it from that position, could not see that his car would hit it, and he proceeded under a signal of the foreman of the contractor. A car had just passed without hitting it. Held, that under the circumstances it was not necessary for the driver to stop and measure before proceeding, and he was not chargeable with negligence because of his failure so to do.
    (Bradley, Vann and Brown, JJ., dissent.)
    Appeal from a judgment of the general term, second department, affirming a judgment entered on a verdict.

      George W. ¿Stevens, for app’lt; M. L. Towns, for resp’t.

       Reversing 32 St. Rep., 912.

   Haight, J.

This action was brought to recover damages for a personal injury.

The plaintiff was in the employ of one George H. Smith, a contractor, and was engaged in digging a trench for a sewer along Steinway avenue in Long Island City, parallel to and by the side of the defendant’s horse railroad in that avenue. At about six o’clock in the afternoon of June 1, 1888, the men engaged in excavating the trench were directed to erect a barrier around the excavation. This was done by laying planks across the trench, standing sections of sewer pipe on either side and placing planks on top thereof to form a guard rail around the trench.

The plaintiff remained in the trench and assisted in adjusting the plank on which the sewer pipe was placed which subsequently fell. The plank was twelve inches in width, whilst the pipe that was placed thereon was fifteen inches in diameter. The pipe was placed within a foot and a half to two feet from the rail of the defendant’s track. At this instant one of defendant’s cars passed along the track, and the pipe fell into the trench upon the plaintiff, causing the injury for which this action was brought.

It is claimed on behalf of the plaintiff that the car in passing struck the sewer pipe, causing it to tip over and fall. Whilst on behalf of the defendant it is claimed that the car did not hit the pipe, and that it toppled over in consequence of the vibration caused from the car, or from the caving of the earth on the side of the trench underneath the plank.

The witness Preiser says that the car struck the pipe, whilst policeman Burden testified that he was riding upon the car, sitting upon the front seat next to the sewer; that he heard no crash, felt no jar, and did not notice that the car struck the pipe, but he saw the pipe topple over and fall.

The only theory upon which the defendant could be charged with negligence is that the driver ran his car against the pipe, knocking it over.

The evidence to which we have referred required the submission of that question to the jury, which found for the plaintiff, and we must, therefore, on this review, assume that the pipe was struck by the passing car.

But was the company, or the company’s driver, at fault ? There is no substantial dispute as to the circumstances. The driver approached with his car to the place where the excavation commenced, and then stopped. Thre*e pipes were standing in line by the side of the excavation. A car had just passed them without hitting. The conductor of the car looked along the side, and ¡thought there was sufficient space to pass. The foreman of the • contractor signalled the driver to come on, and thereupon he drove along with his horses upon a walk, passing two of the .sewer pipes, but striking the third. All of the witnesses agree, including the plaintiff, that the car was stopped and did not advance until the signal was given, except the foreman, who thinks ¡¡that this car did not stop, but that the one in advance did. He, however, does not claim to be certain, and concedes that he made .a motion with his arm for the car to come. The plaintiff had • only worked two days, and was not much acquainted with the men. He says that he saw a big, tall man standing there, and he ;gave commands for the cars to stop or start; that he had seen the .man that day and the day before doing that He further stated : • “ He was not in our gang of workmen.” And the witness Preiser ísaid* he was not one of their workmen. All of the other witnesses agree that it was Moses Smith, the foreman, and Smith himself states that there was no one there to tell the cars to come on or stop but himself, and that he generally did that by giving motions with his arm. It will be observed that whilst the plaintiff and witness Preiser state that the man who gave the ■signal to advance was not a fellow workman of theirs, they do not .-say that it was not the foreman Smith. This is the only variance, ¡if such it can be considered, in the evidence.

It is quite apparent that the driver of the car proceeded upon the signal of the foreman of the contractor, under a supposition that the sewer pipes had been properly placed a sufficient •distance from the track to allow his car to pass without hitting. ■It is said that he must have known that men were working in the ¡trench; that he could have seen the pipe standing by the side of ■the sewer, and that he should have taken other precautions to ¡avoid the accident; that he should have measured the distance, .••and made sure that his car would not hit the pipe.

This view appears to have been taken by the general term, the presiding judge saying that the company owed extreme vigilance "in the management of its cars and this duty was increased by the ■excavation. We do not, however, understand the rule to be as broad as there stated.

A careful man is guided by a reasonable estimate of probabilities. His precaution is measured by that which appears likely in the usual course of things. The rule does not require him to use -every possible precaution to avoid injury to others. He is only required to use such reasonable precautions to prevent accidents as would ordinarily be adopted by careful, prudent persons under like circumstances. Barker v. Savage, 45 N. Y., 191; Ray on Negligence, 133.

Had the pipe stood in front of the defendant’s car so that the ■driver could have seen that the car must necessarily strike it, a ■different question would have been presented. The pipe was not ¡so placed. It was negligently placed by the employees of the contractor so near the track that* it was hit by the caí-, bat the driver standing upon the platform, looking at it from that position,, could not see that his car would hit. He proceeded under the-signal of the foreman with the supposition that the employees o£ the contractor had placed it a sufficient distance to permit the-passage of his car, and, under the circumstances, it does not, appear to us that it was necessary for him to stop and measure before proceeding, and that he is chargeable with negligence because of his failure so to do. He but did what every other man would have done under like circumstances.

We are, therefore, of the opinion that the evidence failed to-establish negligence on the part of the defendant, and consequently the judgment should be reversed and a new. trial granted, with, costs to abide the event.

All concur, except Bradley, Vann and Brown, JJ., dissenting.

Vann, J.

dissent upon the ground that it was for the jury to say whether the driver exercised the care required by the circumstances, when, after coming to a full stop, he drove on “prettyfast, at a good gait,” standing in the middle of the platform, without looking to see, or getting in a position where he could see,,, whether his car would strike the section of sewer pipe, or whether there was any one in the trench who might be injured, of talcingany precaution to prevent injury to those engaged in making the excavation.

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


author: Macomber, J.

text:
    Elizabeth Wadd, Resp’t, v. James E. Hazleton et al., Ex’rs of Albert Hill, Deceased, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Trust—Assignment op mortgage.
    Defendants’ testator, who left no wife or descendants, shortly before his-death told his attorney, who was one of his executors, to draw an assignment of a certain mortgage to plaintiff, and a few days before his death, gave him the assignment duly executed, but not acknowledged, and told him to put it with his papers in bank and that he intended plaintiff to have it. .He had made provision in his will for plaintiff, who had been his servant, but during the last year of his life he told his former counsel whcs had drawn his will that he intended to make further provision for her. Held, that this showed a settled intention on testator’s part, unrevoked at. his death, that this property should he turned over by the executors to-plaintiff at his death, and that by the receipt of the assignment under these circumstances the executor became bound to so deliver it.
    8. Same—Evidence—Code Civ. Pro., § 835.
    Section 835 of the Code does not prohibit evidence of a declaration made-in a casual conversation to one who was formerly an attorney for the person making it, where no advice was asked and the relation of attorney and. client had previously terminated.
    (Lewis, J., dissents.)
    Appeal from a judgment entered in Genesee county, June. 2,, 1890, on the report of a referee.

      B. A. Washburn and George Bowen, for app’lts; L. N. Bangs., for resp’t
   Macomber, J.

This action was brought to obtain a delivery to the plaintiff of a bond in the sum of $2,000, secured by a real estate mortgage upon lands in the county of Erie. Pending the action, the defendants, with the assent of the plaintiff, and under an arrangement by which such acts should not prejudice the rights of either party, collected the amount of the bond and mortgage, and they now have in their hands the moneys arising therefrom, subject to the final judgment in this action; so that the judgment which was rendered in pursuance of the decision of the referee directed the payment by the defendants of the amount thereof, with interest, together with costs of the action, instead -of directing an actual delivery of the securities themselves, as was prayed for in the complaint.

On the 30th day of June, 1884, the defendant’s testator was the owner of this bond, executed by one Charles Buckholt, and of the mortgage collateral thereto, to secure the payment of the sum of .'$>2,000, bearing date the 7th day of May, 1881, payable six years thereafter with interest. On the 30th day of June, 1884, the testator requested the defendant, Charles J. Hill, to draw an .assignment of the bond and mortgage to the plaintiff. Mr. Hill took these securities to his home and drew an assignment thereof, afterwards returning to the testator the papers, with the assignment properly drawn and ready for execution. The testator died in Le Roy, Genesee county, on the 29th day of August, 1884, at the age of eighty-seven years, possessed of real and personal property of the value of $65,000, over and above all debts and liabilities. He left no widow or descendants, his wife having died in the year 1870. His final disposition of his property was contained in a last will, with four codicils added thereto. In the will, and in the first two codicils, Lucius H. Bangs, then' an -experienced counsellor of long standing, practicing in the village of Le Roy, was named as one of the executors. On the removal •of the latter, however, to the city of Buffalo, the testator, by the .third codicil, substituted Mr. Hill in his place as one of the -executors. Shortly before the death of the testator, and on the second day of his final illness, he gave to Mr. Hill the assignment -of the bond and mortgage, properly executed by him, but not .acknowledged (and so, of course, not recorded), with directions to •deposit it with other papers in his, the testator’s, bank. There is not any evidence that the bond and mortgage, and the assignment thereof, were ever delivered personally to the plaintiff in the lifetime •of the testator. An attempt was made in the answer to claim that the testator was not of sound mind and memory at the time of the execution of the assignment, and that the same was obtained from him through undue influence and fraud. But the evidence wholly fails to establish either of such defenses, as the learned referee has very properly held. The general question, therefore, is, whether .-at the time of the execution of the assignment of the bond and mortgage by the testator he intended to make an absolute gift to, •or a settlement upon, the plaintiff of this bond and mortgage, to take effect at his death. As there was not an actual delivery of -.the choses in action to tlie plaintiff in the lifetime of the testator. her right to recover must depend upon the solution of the question whether the testator intended to, and did in fact, make am effective settlement upon her of this property before his death-

In the consideration of this question, the inquiry is naturally-made : what is the evidence showing an actual declaration of a trust, through the medium of which an effective trust was established and the defendants required to account to the plaintiff for the proceeds of these securities ? To this end it is necessary to examine the facts and attending circumstances of the testator’s acts, his purposes, as declared by himself both orally and written, somewhat in detail, in order to ascertain his intentions, and to determine whether there in truth exists evidence of such declaration] of trust.

The plaintiff, in the month of August, 1867, entered the service-of 'the testator and his wife, as a household servant, upon am agreed compensation to be paid to her, and there remained in the-employment of the testator and his wife until the death of the wife, which occurred in the year 1870. After that time, the plaintiff continued in the testator’s family as a servant, but upon increased wages, until the testator’s death. Prior to the death of the-testator’s wife, the family consisted of the testator, his wife and the plaintiff. After the death of the wife, it consisted of the testator, the plaintiff, and, for about five years of the time, of one Frances J. Field, a niece of the testator, who lived in the family, but who paid for her board. After the death of the testator’s. wife, the plaintiff had the entire charge of the household, doing-much manual labor for the family, and nursing the testator in his illnesses. The deceased felt under many obligations to her, and he manifested them very conspicuously in his will and codicils-thereto. By the will itself, which bears date June 14, 1878, he = bequeathed to her the sum of $1,000. By the same instrument,, he devised to her the house and lands where he then resided ire, the village of Le Roy, consisting of thirteen acres of land, absolutely, and bequeathed to her the household furniture in the homestead, including maps and pictures, together with the farming-tools, horse, wagon, phaeton, cutter, robe, harness, and such tools and implements as were used in carrying on that small farm. Im addition thereto, he gave to her, absolutely, out of the residue off the estate not thereinbefore disposed of, the further sum of $1,000-In this will the executors named were Lucius N. Bangs, Hiram. W. Haskell and James E. Hazleton.

The first codicil, which was executed June 14, 1880, contains-nothing material to this case. On the 22d day of September of that year the second codicil was executed, but this likewise in no way affects the rights of the plaintiff. On the 29th day of January, 1883, the testator made and executed a third codicil, by which he appointed as one of the executors the defendant, Charles J. Hill, in the place of Lucius N. Bangs, in consequence of the-contemplated removal of the latter from Le Roy to Buffalo. By the thirteenth clause of the will, power to sell and convey the real, •estate was given to the executors. By this third codicil, such power was modified and explained, so as not to refer to, or in— elude, the real estate or appurtenances thereto belonging which he had devised to the plaintiff in the eleventh clause of the will. On the 22d day of October, 1883, the fourth codicil was executed, by the testator. He therein asserts that in the eleventh clause of his last will and testament in relation to the household furniture, he intended to include all beds and bedding, earthern and glass ware, knives, forks and spoons, in short, all articles belonging to- or in use in the house.

In the month of January, 1884, the testator had a conversation with Luqius N. Bangs, who had been his counsel in drawing the will and the first two codicils, and had been appointed one of the. two executors therein, in which he told Mr. Bangs that he had made up his mind to make a provision for the plaintiff in addition to what he had made for her in his wdll; that the rate of interest, had fallen from what it used to be, and that he had made up his mind to give her about $2,000 in addition to the provision for her in his will; that she had been very faithful in his household, and the provision in his will would be less valuable than when he made it. In the month of June of that year, the testator handed the bond and mortgage to the defendant, and requested him to draw an assignment thereof to the plaintiff, and as the-referee finds, “ said something about his intention to give Libbie that”

Such are the conclusions, in substance, reached by the learned referee upon questions of fact which, in this appeal, we have brought to bear primarily upon the question of the testator’s declaration of a trust. The referee in his conclusions has not stated the evidence too strongly in favor of the plaintiff. Indeed, in one aspect thereof, the findings could have been much more conclusive against the defendants, for the defendant Hill himself was called in his own behalf as a witness, and testified in substance, on examination by his own counsel, that a few days before the testator died he requested him to take possession of some papers, including the assignment of this bond and mortgage, and the bond and mortgage themselves, which was accordingly done; that the testator said something about his intention to give Libbie the assignment, and wanted him to take the papers home and draw it. The witness said in answer to this that he had an assignment of a bond and mortgage at home which the testator had given him, and he would use that as a model. As stated above, after the assignment had been prepared the papers were returned to the testator, who subsequently handed them to the defendant Hill with the directions above mentioned.

I think that these facts show clearly an actual declaration of a settled purpose on the part of the testator, which was unrevoked at the time of his death, that this particular property should be turned over by his executors to the plaintiff after his death. A voluntary trust may be created by any words or acts of the testator indicating with reasonable certainty, first, an intention on the-part of the trustor to create a trust; and, second, the subject, purpose and beneficiary of the trust. Fisher v. Fields, 10 Johns., 495; Briggs v. Penny, 3 Macn. & G., 554; Reeves v. Baker, 18 Beav., 379.

Mr. Hill, by the arrangement, as testified to by himself, became a voluntary trustee under an obligation arising out of a personal ■confidence reposed in him by the testator, and he voluntarily accepted such trust for the benefit of the plaintiff. Everyone who voluntarily assumes the relation of a personal confidence of another is deemed a trustee within the meaning of the rule by which the intended settlement of property by one upon another is to be ■carried out It is not necessary that the scheme of the trustor.■should fall within any of the titles of uses and trusts of our Revised Statutes-; dt is sufficient if his purpose is to effect an end which could have been reached by contract between the trustor •and the beneficiary dealing directly with each other. The receipt by the defendant Hill of the securities, under the circumstances ■stated by him, shows an unqualified assent on his part to the assumption of the obligation reposed in him by the testator. He knew, because- he had been told prior to the execution of the assignment, that the testator wanted the assignment drawn as. a gift ■to the plaintiff. Day v. Roth, 18 N. Y., 455.

We. have, therefore, the mutual assent of the trustor and the trustee to the creation of the obligation on the part of the trustee to carry out the express wishes of the deceased relating to this particular security. The beneficiary may avail herself of. such trust arrangement, although unknown to her at the time, and may take advantage of the same after the death of the testator occurring before any rescission in fact, or any act tending ’to show a purpose to rescind the creation of such trust. Moses v. Murgatroyd, 1 Johns. Ch., 119; Shepherd v. McEvers, 4 id., 136; Cumberland v. Codrington, 3 id., 261; Weston v. Barker, 12 Johns., 276, 281; Neilson v. Blight, 1 Johns. Cas., 205; Acton v. Woodgate, 2 Myl. & K., 492.

This trustee, Mr. Hill, had good reason to know what the purpose of the testator was, because an assignment of another bond and mortgage had been made' to him, but the bond in that instance was retained by the testator for the purpose of collecting interest thereon during his lifetime. Mr. Hill, therefore, must be •conclusively charged, under the facts stated by him, and under all •of the circumstances of the case, with actual knowledge that it was the fixed purpose of the testator to have placed absolutely in the hands of the plaintiff, as owner, these securities after his death.

In point of equity and according to clear reasoning the proposition is plain, that he who assumes a confidential relation to another in any matter must, for the purpose of carrying out the wishes and making effective the intention of the other, be deemed to have acted according to his. confidential instructions, and he •cannot, either in his own behalf or in'behalf of anybody else, be heard to dispute the obligation of the trust thus voluntarily -assumed by him. Accordingly, we should treat this case as though Hill had, immediately after the death of the testator, ■.actually delivered to the plaintiff these securities and the assignment thereof.

The case is much stronger in favor of the "plaintiff than is that, of Martin v. Funk, 75 N. Y., 134, and the many cases there considered in the opinion bearing upon the general question. In the-multitude of authorities it would be idle to cite any where the.facts are materially different from those arising out of this case; but much instruction may be gleaned by the examination of Bunn v. Winthrop, 1 Johns. Ch., 329: Barry v. Lambert, 98 N. Y., 300; Schluter v. Bowery Savings Bank, 117 id., 125; 27 St. Rep., 980; Beaver v. Beaver, 117 N. Y., 421; 26 St. Rep., 922; Mabie v, Bailey, 95 N. Y., 206; Gilman v. McArdle, 99 id., 451.

The learned counsel for the appellant relies mainly upon the-case of Young v. Young, 80 N. Y., 422. Without, however, entering upon any discussion of the decision in that case, and the.bearing of it upon subsequent decisions of the same court, it isP perhaps, enough to say that it contains clearly a recognition of." the doctrine of Martin v. Funk, supra, but its conclusion was; reached upon the ground that the case showed that there was nob exhibited in the record a clear, consistent and continuous purpose on the part of the deceased in that case to make a settlement: of the property upon the beneficiaries; and that the withdrawal of a portion of the property from one of the packages of the securities, and using it for other purposes, was an act inconsistent, with a settled and fixed purpose of making an absolute gift by way of settlement to take effect at his death. Even that case holds that where the donor- retains the property, a trust may still be created, if the acts and words relied upon, for the creation of such trust, be unequivocal and necessarily implied,. that the-donor hold the property as trustee for the benefit of another. Were it necessary for the upholding of this judgment to decide-that the possession of the bond and mortgage, and the assignment thereof, continued to be in the testator, we think that the case of Martin v. Funk, supra, and other cases cited, would be sufficient, authority to that end. But under the facts disclosed in this cas.e, we think that Mr. Hill was, under the duty imposed voluntarily and accepted voluntarily by him, bound to deliver the bond ana mortgage and the assignment in question to the plaintiff upon the. death of the testator.

This conclusion necessarily leads to an affirmance of the judgment unless the exception .to the competency of the witness Bangs-, was well taken. Mr. Bangs was called as a witness and examined, in reference to the intention of the testator, as above stated, in respect to giving the plaintiff a larger sum of money than bad been bequeathed or devised to her by the will and codicils. At. this time Mr. Bangs was not the counsel for the testator, and hell ad no confidential relations with him as attorney. He had removed from Le Roy to Buffalo, and.his name had been taken out. of the number of executors, and that of Mr. Hill substituted in-his place. It was a casual conversation in the post-office at Le-Roy, on New Year’s day, where Mr. Bangs chanced to be visiting-at the time. After Mr. Bangs removed to Buffalo he had done-no business for, and had given the testator no advice in respect to his will, or any other matter. The subject of the conversation! was not the disposition of the decedent’s property by will; but of ■an entirely independent act in relation to a particular sum of money that he said he intended to give the plaintiff, for the reason ■that, on account of the decrease of interest, the provision which had been made for her by will seemed to him to be inadequate. There is nothing in § 835 of the Code of Civ. Pro. which prohibits, under these circumstances, the giving of such conversation .in evidence. The witness was not asked professionally for his ■advice, and such advice was not given. It was the mere declaration •of the testator to a person who had known of his pecuniary condition up to a certain time and of his general purposes, that lie intended to give a certain person a given amount of property. Advice was neither sought nor given upon that question. The case, therefore, does not fall within the decision of Bacon v. Frisbie. 80 N. Y., 394, nor Myers v. Dorman, 34 Hun, 115.

The judgment appealed from should be affirmed.

Judgment affirmed, with costs to the plaintiff, payable by the defendants out of the estate.

Dwight, P. J., concurs; Lewis, J., dissents.


author: Lewis, J.

text:
    Mary E. Hack, Resp’t, v. Pliny T. Sexton, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    "Vendor and purchaser—Agreement to pat a reasonable sum.
    To save expense of a foreclosure of his mortgage, defendant agreed to take a deed of plaintiffs farm and pay her what was just and reasonable therefor. In an action for the purchase price, it appeared that there were other liens not known to defendant when he took the deed; that the liens amounted to $4,162.69. Plaintiffs witness testified that the farm was worth $4,600 to a man who took a fancy to it; while defendant’s witnesses, who were neighboring farmers, testified that it was worth $1,000 less than the liens. Held, that a verdict of $500 was not sustained by the evidence.
    Appeal from a judgment of the supreme court against the' defendant," entered in the office of the clerk of the couty of Monroe, on the 21st day of January, 1891, for the sum of $746.60, and from an order denying a motion for a new trial upon the minutes •of the court.
    The action was brought to recover the purchase price of a farm .situated in the town of Macedón, Wayne county, containing about' thirty-one acres, which was conveyed to the defendant, by the ■plaintiff, March 16, 1887.
    The plaintiff’s complaint alleged that no price was agreed upon for the land at the time it was conveyed to the defendant; but that it was conveyed upon the understanding, intention and agreement that the defendant should pay the plaintiff therefor a just .and reasonable sum, and that the land was of the value of $5,000.
    Defendant’s answer set up payment in full. There were incumbrances on the land at the time it was conveyed. The jury, by their verdict, found that the plaintiff’s equity in the premises-was worth the sum of $500, and rendered a verdict for that amount.

      S. B. McIntyre, for app’lt; Garbck & Beach, for resp’t
   Lewis, J.

The question presented by this appeal is whether the verdict was sustained by the evidence.

The plaintiff became the owner of the farm some thirteen or fourteen years before she conveyed it to the defendant

It was, at the time it was conveyed to her, incumbered by a mortgage for the sum of $2,500. The plaintiff and her husband entered into possession, and occupied the farm down to the time that it was sold to the defendant.

They were not able, from the proceeds therefrom, to pay their living expenses and the interest upon the incumbrance; they became involved and not being able to pay their debts they applied to the appellant for aid; he loaned them money from time to time.

He took an assignment of the $2,500 mortgage upon the farm. The plaintiff gave to. the defendant another mortgage upon the farm, to secure the payment of the money which he had advanced to her.

Plaintiff’s indebtedness to the defendant continued to increase, the defendant was not willing to advance any more money, and insisted upon the plaintiff either paying, or in some way reducing the amount thereof.

The plaintiff and her husband made efforts to sell the place, ■offering it for the sum of $4,000, but were not able to find a purchaser. At their request the appellant made efforts to sell the place; and not being able to find a purchaser, he suggested to the plaintiff and her husband that, with a view of saving the expense ■of a foreclosure of the mortgage, they should deed the place to him, and he promised to pay to them what was just and reasonable for the farm.

The incumbrances at the time it was conveyed to the defendant aggregated $4,162.69, consisting of the two mortgages and two judgments which had been recovered against the plaintiff.

The burden of proof was upon the plaintiff to show what her equity in the farm was worth, if anything. She called as a witness Mr. Edward Grage, who testified that he resided in the vicinity ■of the farm; was a carpenter by trade; had worked some at farming ; that, in his opinion, if a man could be found who had a fancy "for the farm it was worth between four thousand and forty-five hundred dollars. Plaintiff’s husband testified that three or four years prior to March, 1887, a Mr. Stone, who lived either in Williamson or Ontario, he couldn’t tell which, came to their place arul offered $5,000 for it; that he pulled the money partly out of his pocket, and said, “ there is the money.”

In speaking of the interview with Mr. Stone in another part of this testimony, he stated that when Stone came there he had $4,000 which he was willing to pay down for the.farm. He testified that the trade did not take place because a Mr. Durfee held a seven per cent mortgage upon the farm. and he would not surrender it.. .

Both plaintiff and her husband testified that, when talking with the defendant about deeding the farm to him, they stated that they ought to get what they paid for it, $5,000; neither of them testified what they thought the place was, in fact, worth. This was all of the testimony produced by the plaintiff tending to show the-value of the farm. '

The offer of Mr.- Stone, made three or four years before the transfer to the defendant, to pay four or five thousand dollars for the farm was very slight, if any, evidence of its value in the year 1887.

The statements of the plaintiff and her husband when they were negotiating with the defendant, that they wanted to get $5,000 for the place, was no evidence of its value. So that, in fact, the only evidence the plaintiff produced tending to show the-value of the farm at the time it was conveyed to the defendant, was the testimony given by the witness, Edward Gage.

The defendant testified that he, from time to time, advanced money to the. plaintiff, until the incumbrances upon the farm amounted to more than he thought it was worth.

That he frequently urged the plaintiff to try to sell the place and offered to assist her in finding a purchaser.

He offered it for $4,000, but could not find a purchaser at that, price. That as the plaintiff was unable to sell, and could not. pay the interest upon the incumbrances, she consented to deed/ the place to him, and that he did agree to do what was right in-regard to paying for it. Before accepting the deed, he assigned the mortgages tó his wife. That his object in taking the deed was to save the expense of a foreclosure of the mortgages.

That he did not know, at the time he took the conveyance,, that the two judgments had been recovered and were liens upon, the place ; that the judgments amounted to between five and six hundred dollars, and that when he learned of the judgments he declined to pay anything more to the plaintiff, as it would be necessary to foreclose the mortgages to perfect the title.

He offered, after it was conveyed to him, to deed plaintiff the property in case of payment of his claims against plaintiff. The defendant called eight witnesses, who testified that they were farmers and resided in the neighborhood of the farm and were acquainted with it, and knew the value of such property. Their opinions as to its value varied somewhat in amount; the highest, price fixed by any of them was the sum of $3,100. Some o£ them testified that it was not worth to exceed $2,500.

They testified that farming lands in that locality had been receding in value for a number of years, and were not worth into> from twenty-five to forty per cent as much as they were fifteen or twenty years before. They testified that the farm had been neglected, and when conveyed to the appellant was in a dilapidated! condition.

The incumbrances upon the farm, as we have seen, amounted! at the time of the conveyance thereof to the appellant to the sumí of $4,162.69. Of this amount, all but between five and six hundred dollars was made up of the indebtedness of the plaintiff to-the defendant. Deducting the incumbrances from the larger price-fixed by Gage, the plaintiff’s interest therein was only $337.31; but, as we have seen, the great weight of evidence established its, value to be at least a thousand dollars less than the incumbrances ■thereon, and several hundred dollars less than the amount of plaintiff’s indebtedness to the defendant

It is well known that farming lands in this state, and in the Eastern states, have steadily and seriously depreciated in value for the past fifteen or twenty years. It is obvious, from an examination of the evidence in this case, that the farm was not worth the amount of plaintiff’s indebtedness to the defendant

The j ury must have arbitrarily fixed the amount of their verdict, without giving any consideration to the weight of the evidence. They evidently allowed their sympathies, and perhaps their prejudices, to control and guide their judgments.

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

Dwight, P. J., and Macomber, J., concur.