text:
    In the Matter of JOHN PEARCE, an Imprisoned Debtor.

      Discharge of an imprisoned debtor from impidsonment— only fraudulent acts, committed afi&r the liaMlity to the plaintiff {the objecting judgment creditor) was incurred, 'will bar a dischan’ge — only those who are creditors of the debtor, at the time a transfer of his property is made, can claim that it is fraudulent.

    Appeal from an order made by the county judge of Kings county discharging the respondent, an imprisoned debtor, from imprisonment.
    The discharge was opposed on the ground that the debtor’s proceedings had not been just and fair, and that he had disposed of property with intent to defraud his creditors. The action, under the execution in which the respondent was héld under arrest, was for obtaining moneys by false and fraudulent representations.
    The court at General Term said: “ The first objection taken to the discharge is that the judgment in the action is conclusive evidence in this proceeding that the debtor was guilty of fraud. This is so. But under the statute for the discharge of imprisoned debtors the fraud which will bar a debtor’s discharge is not that of which he may have been guilty in contracting the debt or liability, but fraud in the subsequent disposition of his property to evade such liability. The judgment in the action was not predicated on such an act and, therefore, cannot be evidence of it. The provisions that a -debtor proceedings must be fair, I think must be taken in connection with the contents of the affidavits and be held to relate to the management and disposition of his property subsequent to the liability, not to the circumstances under which that liability was incurred.
    The second objection taken is that the debtor at one time transferred all his property to Ann Naris, as it is cpmplained by the appellant, with intent to defraud his creditors, though such intent is denied by the debtor. It is a sufficient answer' to this objection j that at the time of such transfer the appellant was not a ereditor of the defendant. Only existing creditors at the time can complain of such disposition. (Matter of Brady, 69 N. Y., 215.)”

      George H. Kracht, for Robert C. Manson, creditor, appellant.

      John Gooney, for John Pearce, debtor and petitioner.
   Opinion by

Cullen, J.

Present — Barnard, P. J., Nykman and Cullen, JJ.

Order of County Court affirmed, with costs.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    In the Matter of the Petition of LEWIS H. WIGGINS to Remove LEWIS H. SMITH as Testmentary Trustee.

      Trustee — application to remove a trustee, upon the ground that he has converted a portion of the trust pi'operty to his own use — it will not he defeated hy proof that he Tuts made a settlement with those of the heneficia/ries whose property he had converted, and that the residue of the trust property is, then, in the possession of amd properly invested by his cotrustees.

    Appeal from a decree of the surrogate of Suffolk county, dismissing the petition of the appellant to revoke letters testamentary issued to Lewis H. Smith, respondent, one of the executors and testamentary trustees under the above-named will, and to remove him from his position as such testamentary trustee.
    The petition alleged that the trustee had converted some $6,000 of the testator’s estate to his own use, and that he was insolvent. The answer did not deny these allegations, but averred' that the respondent had satisfied the parties in interest by giving his obligations for this deficiency, and that his business was profitable. Testimony was taken from which it appeared that the allegations of the petition were true. The surrogate denied the application.
    The court at General Term said: “ I think in so doing he erred. The petitioner’s interest is small, but he was entitled to have it protected. The misconduct of the trustee rendered him improper to longer discharge his trusts. His settlement with the other legatees may have discharged him from legal liability to them on account of his default, but it did not obliterate the fault itself.

      “ The fund in which the petitioner is interested is now securely invested and in the hands of the other trustee, as to whom no complaint is made. But this does not necessarily secure the petitioner. The respondent is equally entitled to the possession of the fund with such cotrustee. Also, as the trustee was insolvent, he should have been ordered to file security.”

      William, Riley, for the petitioner, appellant.

      Thos. S. Mount, for Smith, executor and trustee, respondent.
   Opinion by

Cullen, J.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Decree of surrogate of Suffolk county reversed, with costs, unless the trustee Smith file security in twenty days.


text:
    MARY J. BELL, Appellant, v. DAVID McMASTER, Respondent.
    Will— opinion of a laymwn as to the sanity of the testator — what questione may he put to him — his opinion must he founded, wholly upon his own observation.

    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury.
    This proceeding was instituted to have the will of Hugh S. Dunn admitted to probate. It has been tried three times, once before the surrogate, and twice before a jury. Each of the three trials resulted in a decision sustaining the will. The verdict on the first jury trial was set aside for error in the exclusion of evidence; the proponedts having been successful in all the trials in the courts of first instance.
    The court at General Term said: “ Several exceptions appear to the exclusion of evidence. Witnesses for proponents testified to acts and conduct of the deceased and their intercourse with him, and that the impression made on the witness by such acts was that the deceased was rational. On cross-examination contestant’s counsel asked the witnesses, “ If you had known of his breaking out in a prayer meeting with obscene language, wanting to go to an infant school after he was seventy years of age, claiming to be in love with a young girl, would that knowledge have influenced the impression mentioned as received by you? ” “ Would you regard those as signs of mere eccentricity ? ” Both questions were excluded, and to such rulings contestants excepted. The witnesses were laymen, not experts ; none had testified to the facts assumed in the questions, though such facts did appear by the evidence of other witnesses. The rulings complained of were correct. A layman (except an attesting witness) cannot testify to an opinion on the general question whether the mind of the testator was sound or unsound, but only on the impression produced by what he witnessed. {Clapp v. Fullerton, 34 N. Y., 190; Hewlett v. Wood, 55 id., 634.) An answer to the questions put would in no wise have tended to contradict or limit the witness’ previous statement as to what that impression actually was at the time. Besides an answer would have been purely speculative. Neither the witness nor anyone else can say what effect such information would have had on his impressions. The question put to the witness Shields was, if admissible at all, one of that class of disparaging questions which are asked for the purpose of discrediting a witness and rest in the discretion of the trial judge. {People v. Casey, 72 N. Y., 393; Allen v. Bodine, 6 Barb., 383.)
    “ The court below properly refused to allow the opinion of the General Term on the facts of the case rendered on a prior appeal to be read to the jury. The jury were to decide the issues on their own convictions, not on the opinion or belief of the appellate court.”

      ¡S. Chittenden, for the appellant.

      Martin J. Keogh, for the respondent.
   Opinion by

Cullen, J.

Present — Barnard, P. J, Dykman and Cullen, JJ.

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Appellant, v. CHARLES OMEROD and Others, Respondents.

      Injunction — damages sustained, by the granting of a temporary injunction — the defendant is not entitled, to any, if the injunction was properly,granted, even though the action be subsequently discontinued by the plaintiff.

    Appeal from an order made at a Special Term appointing a referee to assess the damages sustained by the defendants, by reason of an injunction granted herein upon the application of the plaintiff.
    The plaintiff is a corporation formed under the general railroad law of the State. The road was laid out in front of a brick-yard owned by the defendants. Being unable to purchase the land, it was condemned under the right of eminent domain, and all the proceedmgs necessary to acquire and perfect the title were taken. After the plaintiff had commenced the construction of the causeway across the waters of the river in front of the defendant’s brick-yard, a voluntary arrangement was perfected, by which the company was to leave an opening in the way for the passage of vessels to the yard. This was done, and over it was placed a bridge for the passage of the railroad construction train, in such a manner that, it could be raised when vessels were to pass through. After this the defendants caused a large schooner to move into this opening, and come to anchor there, so as to prevent the plaintiff from using the railroad and temporary track. Thereupon an injunction was applied for and obtained, restraining the defendants from obstructing the use of the draw-bridge, except for orderly ingress and egress by vessels, and ordering the removal of the schooner from the gap.
    After this the proceedings for the condemnation of the land were reversed and the motion to continue the injunction was thereupon denied. On the 18th day of July, 1882, a notice of discontinuance of this action was served, and the defendants’ costs were paid. On the 19th day of July, 1882, the defendants served notice of a motion for a final judgment that the plaintiff was not entitled to the injunction. The motion was granted and a referee was appointed to ascertain 'the damages sustained by the defendants by reason of the injunction. This arder was subsequently modified by the substitution- of a different referee. From both these orders the plaintiff appeals.
    The court at General Term said: “ The plaintiff was entitled to the injunction at the time of its procurement as a plain matter of right. The land had been acquired and was in the lawful possession and occupation of the company, and the intrusion of the defendants was a wrong perpetrated designedly and without excuse.
    “ How, then, has the action taken by the plaintiff for its protection, in the exercise of a lawful right to use its own property, become a wrong for which it must respond in damages to the defendant ?,
    “ How can a malicious trespasser, who is arrested in his wrong, obtain compensation from the party who brought him to cessation ? Certainly a reversal of proceedings cannot convert that into a right which was before a wrong, nor vice versa.

    “ It appears from the papers before us that the proceedings by which the plaintiff acquired the title to the lands were reversed by the Court of Appeals, but that is by no means a determination that the plaintiff was not entitled to the injunction at the time it was issued. (Methodist Churches v. Barker, 18 N. Y., 465.) Such refusal may have been for irregularity without affecting the merits. It does not appeal’ to us it.was not so, and the burden rested on the defendants, to show it. No damage can be awarded or assessed unless the court finally decides that the plaintiff was not entitled to the injunction at the time it was ^issued. (Code Civ. Pro.,, § 620 ; Benedict v. Benedict, 15 Hun., 306; Weeks v. Southwick, 12 How., 170 ; Shearman v. New York Central Mills, 11 How., 269 ; Palmer v. Foley, 71 N. Y., 106.)
    “ This examination shows that the plaintiff was entitled to. the injunction order at the time it was issued, and the determination in the order appealed from, that it was not so entitled, is erroneous.
    “There was therefore no breach of the undertaking, and the defendants cannot assess damages.
    “ The cases of Carpenter v. Wright (4 Bosw., 655) and Pacific Mail Company v. Leulvng.tfi Ahb. [N. S.], 37) are not authorities against this conclusion.”

      Oassedy dk Brown, for the appellant.

      E. A. Brewster, for respondents Charles and Jerome Walsh.

      Wm. W. Badger, for respondents Omerod and others.
   Opinion by

Dykman, J.;

Barnard, P. J., concurred; Cullen, J., not sitting.

Order of reference and order canceling same reversed, with costs and disbursements.


text:
    In the Matter of the Estate of Andrew Hood, Deceased.

   — Motion to dismiss appeal denied. Order and decree of surrogate reversed, with costs. Opinion by Dykman, J.;

Barnard, P. J., dissenting.


text:
    Stephen D. Coleman v. Thomas R. Sharp, Receiver, etc.
   Judgment and order denying new trial affirmed, with costs. Opinion by Cullen, J.;

Dykman, J., dissenting.


text:
    The People of the State of New York ex rel. James Devlin v. The Fire Commissioners of Brooklyn.
   Order dismissing relator affirmed, with costs. Opinion by Dykman, J., and Barnard, P. J.


text:
    William B. Slocum, Appellant, v. John W. Blauvelt, Executor, etc., Respondent.
   Judgment reversed and new trial granted. Order of reference vacated. Opinion by Barnard, P. J.


text:
    Oscar F. Archer, Respondent, v. Thomas W. Radford, Appellant.

   Judgment of County Court reversing City Court of Yonkers reversed, and judgment of City Court affirmed, with costs. Opinion by Dykman, J.


text:
    George Gurnee and another, Respondents, v. Eliza B. Scott, Appellant.

   — Judgment of County Court and of Justices’ reversed, with costs. Opinion by Barnard, P. J.;

Dykman, J., dissenting.


text:
    Mary Sweet, Respondent, v. Harriet A. Seacord, Appellant.

   — Judgment of County Court and order denying new trial reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.;

Cullen, J., dissenting.


text:
    In the Matter of Elm Street, Yonkers.
   — Order confirming commissioners’ report affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Elizabeth Walsh and others, Appellants, v. The New York, West Shore and Buffalo Railway Company, Respondents.

   — Reargument ordered.

Barnard, P. J., not sitting.


text:
    John W. Jones and another, as Administrators, etc., Respondents, v. Celine W. Power and others, Appellants.

   — Judgment affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Albert Draper, Appellant, v. Sarah Beadel and others, Respondents.

   — Judgment affirmed, with costs. Opinion by Cullen, J.


text:
    Franklin Horton, Respondent, v. Algernon S. Sullivan, as Public Administrator, etc., Appellant.

   — Judgment and order denying new trial, reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J. ;

Cullen, J., not sitting.


text:
    Same v. Same.
   — Appeal from order denying new trial for newly discovered evidence dismissed, without costs. Opinion by Barnard, P. J.;

Cullen, J., not sitting. ,


text:
    Alexander C. Morrison, Appellant, v. Benjamin F. Tracy, Respondent.

   — Part of order requiring security for costs affirmed, with costs and disbursements. Opinion by Barnard, P. J.;

Cullen, J., not sitting.


text:
    Same v. Same.
   — Order refusing leave to renew motion to open default affirmed, without costs. Opinion by Barnard, P. J.;

Cullen, J., not sitting.


text:
    Frederick R. Jorgensen, Respondent v. Horace K. Thurber, Appellant.

   — Judgment reversed and new trial granted, costs to abide event. Opinion by Dykman, J.;

Cullen, J., not sitting.


text:
    Frederick R. Jorgensen, Appellant v. Horace K. Thurber, Respondent.

   — Appeal from part of judgment which disallows interest before commencement of action dismissed, without costs. Opinion by Dykman, J.;

Cullen, J., not sitting.


text:
    James K. O. Sherwood, Respondent, v. The Tradesmen’s National Bank, Appellant.

   — Judgment reversed and new trial granted, costs to abide event. Opinion by Cullen, J.


text:
    The People of the State of New York ex rel. J. Conlon, v. James Jourdan, Police Commissioner.

   — Order dismissing relator from police force affirmed, with twenty-five dollars costs. Opinion by Barnard, P. J.


text:
    Charles H. Roosevelt, v. The Village of New Rochelle.
   Motion denied, without costs.


text:
    In the Matter of the Settlement of James Hughes’ Accounts as Administrator, etc.
   — Decree of surrogate affirmed, with costs to be paid out of estate. Opinion by Dykman, J.


text:
    Jeannette Weir, Respondent, v. Charles Johnson and another, Appellants.

   — Judgment affirmed, with costs. Opinion by Barnard, P. J.;

Cullen, J., not sitting.


text:
    Alfred F. Dunham, Respondent, v. Edmond Griswold, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Cullen, J.;

Barnard, P. J., not sitting.


text:
    Horace B. Claflin and others, Respondents, v. George Huber, Appellant.

   — Judgment and order denying defendants’ motion for judgment and order denying new trial on minutes affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., dissenting on the ground that there is no proof of fraudulent contraction of debt.


text:
    Mary Story, Respondent, v. The Williamsburgh Masonic Mutual Benefit Association, Appellant.

   — Judgment and order refusing to dismiss complaint, ancf order denying new trial on minutes, affirmed, with costs. Opinion by Cullen, J.


text:
    Francis H. Simons, Respondent, v. The New York Life Insurance Company, Appellant.

   — Interlocutory judgment affirmed, with costs; leave to answer given. Opinion by Dykman, J.;

Barnard, P. J., not sitting. .


text:
    The People of the State of New York ex rel. Francis M. Crafts v. The Fire Commissioners of Brooklyn.
   —Motion for reargument denied, without costs. Opinion by Dykman, J.


text:
    Patrick Murtagh v. John Conners.
   — Motion to open default denied, with ten dollars costs.


text:
    John Schwab v. Frederic E. Cleveland.
   — Motion granted for leave to appeal to the Court of Appeals.


text:
    George R. Conklin, Respondent, v. Elizabeth Gignoux, Appellant.

   — Judgment of County Court affirmed, with costs. Opinion by Dykman, J.


text:
    Jacobus W. Hamel, Appellant, v. William Roth and others, Respondents.

   —‘Part of the judgment holding the $2,000 mortfage free from usury affirmed, with costs. Opinion by Barnard, ’. J.; Cullen, J., not sitting. Upon the plaintiffs appeal from the judgment, holding the $6,000 and $8,000 mortgages void for usury, judgment reversed and a new trial granted, costs to abide event. Opinion by Barnard, P. J. ;

Cullen, J., not sitting.


text:
    Joseph Fieldhouse, Jr., Respondent, v. E. M. Neville and others, Appellants.

   — Appeal from order granting injunction dismissed, without costs. Opinion by Cullen, J.;

Dykman, J., not sitting.


text:
    Henry Steers, Respondent, v. The City of Brooklyn, Appellant.

   Judgment affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    James W. Smith, Respondent, v. The City of Brooklyn, Appellant.

   — Judgment affirmed,- with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Ellis R. Thomas and another, Respondents, v. Thomas J. Evans, Appellant, Impleaded, etc.

   —• Interlocutory judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Jacob Ramsey, as Executor, etc., Respondent, v. Barbara Reitzel, Appellant.

   — Judgment of County Court and of justice reversed, with costs. Opinion by Barnard, P. J.


text:
    William H. Ellis, as Administrator, etc., Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

   — Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.;

Dykman, J., dissenting.


text:
    Thomas J. Bonnell, Respondent, v. Martin D. Graham and others, Appellants. Condit N. Predmore and others, Respondents.

   — Judgment affirmed, with costs to plaintiff and to respond ent Predmore; separate bills of costs against appellants. Opinion by Barnard, P. J.;

Dykman, J., not sitting.


text:
    Barrett’s Dyeing Establishment, Appellant, v. W. Moore Wharton and others, Respondents.

   — Judgment reversed and new trial granted at circuit, unless defendants stipulate to- remit their judgment for-damages against the plaintiff,.in which case the judgment should be affirmed, without costs of appeal. Opinion by Cullen, J.


text:
    The City of Brooklyn ex rel. C. A. M. Stadlmair, Respondent, v. Charles A. Willard and Patrick Hefferman, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.;

Cullen,. J., not sitting.


text:
    Emma T. Barringer, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   — Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    Margaret Cosgrove, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   — Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    John T. McGrath, Respondent, v. Charles T. Cromwell, Appellant, Impleaded, etc.
   Interlocutory judgment upon order overruling defendant’s demurrer to plaintiff’s complaint affirmed, with costs. Opinion by Dykman, J.;

Barnard, P. J., not sitting.


text:
    William H. Ricketts, as Receiver, etc., Plaintiff, v. Gerhard Wessels, Defendant.

   — Exceptions overruled, and judgment for plaintiff upon the verdict with costs. Opinion by Barnard, P. J.


text:
    Levi W. Flagg v. Joseph W. Swift.
   — Motion denied, without costs.


text:
    Matter of Application of H. A. Frost to disbar Henry Daily, Jr.
   — Order refused with leave to withdraw papers and amend same. (Memorandum on file.)


author: Davis, P. J.:

text:
    THOMAS D. ADAMS and DANIEL A. DAVIS, as Assignees, etc., of EMANUEL M. OBREIGHT and SIMON WEIL, Appellants, v. ABRAM STERN and Others, Respondents.

      Action by an assignee in bankruptcy — the limitation of two years, prescribed by section 5057 of the United States Bevised Statutes, does not run if the existence of the claim be fraudulently concealed.

    This action was brought by the plaintiffs, as assignees in bankruptcy, to recover of the defendants an indebtedness for goods sold and delivered to them by the bankrupts. The defendants admitted the indebtedness, but claimed that the action could not be maintained because not brought within two years from the time the cause of action accrued as required by section 5057 of the United States Revised Statutes. It appeared that the plaintiffs were appointed assignees in February, 1876, but had no knowledge of the existence of the debt until May, 1880. The .bankrupts omitted to set out the debt in their schedule of assets, and also neglected to set it up in a schedule made to accompany a general assignment, executed by them shortly before they were adjudged bankrupts, which had been set aside as fraudulent at the suit of the plaintiffs. Their books contained no entries showing the existence of the indebtedness. There was some evidence given which tended to show that the defendants colluded with the bankrupts in concealing the debt from the plaintiffs.

      Held, that the running of the limitation of two years, prescribed by section 5057 of the United States Revised Statutes for maintaining any suit between an assignee in bankruptcy and a person obtaining an adverse interest touching any property or rights of property transferable to or vested in such assignee, was suspended by any fraudulent concealment which prevented the commence-meat of the action, and that it only commenced to run from the time that the plaintiffs became aware of the existence of their cause of action.
    That the question as to whether or not there had been a fraudulent concealment of the existence of the indebtedness in this case should have been submitted to the jury.
    Appeal from a judgment in favor of the defendants, entered on a verdict directed by the court at the circuit, and from an order granting an additional allowance.
    The action was commenced September 22,1880, by the plaintiffs, who had been appointed assignees in bankruptcy of the firm of Obreight & "Weil, February 14, 1876.

      Marsh, Wilson dé Wallis, for the appellants.

      Mel/oiUe li. Megensbwrger, for the respondents. .
   Davis, P. J.:

This action was brought by the plaintiffs, as assignees in bankruptcy, to recover of the defendants an indebtedness’ for goods sold and delivered to them by the assignors in bankruptcy. The answer of the defendants admits the sale and delivery of the goods, and does not allege that the indebtedness has been paid. They also admit that the plaintiffs are assignees in bankruptcy of the alleged bankrupts. It is alleged in the complaint and was proved on the trial that the bankrupts neglected to put the indebtedness in this case in their schedule of assets, and that the plaintiffs had no knowledge of the existence of the debt until about the month of May, 1880. It was also shown that the bankrupts prior to the proceedings in bankruptcy made an assignment for the benefit of their creditors, which assignment, after the appointment of the assignees in bankruptcy was at their suit set aside as fraudulent and void under the provisions of the bankrupt laws of the United States, by a decree entered in the District Court of the Southern District of New York, January 9, 1878. The schedules filed with that assignment did not contain any statement of the indebtedness of the defendants to the assignors, nor any reference to the transaction out of which it arose. It was also shown that the books of the bankrupts, Obreight &"Weil, did not contain any entries disclosing the sale by them of any goods to the defendants, or any indebtedness of the defendants to that firm. Some evidence was given on the trial tending to show that the defendants were parties to the concealment from the plaintiffs, of their connection with and indebtedness to Obreight <k Weil.

The defendants pleaded, and at the trial relied solely as a defense upon the provisions of section 5057 of the Revised Statutes of the United States, which statute was by them put in evidence on the trial.

The plaintiffs asked to go to the jury upon the question of fraudulent concealment of the existence of the indebtedness from them by the defendants and by their assignors. The court refused to submit that question to the jury and due exception was- taken.

The court directed a verdict for the defendants on the ground that the right of action was barred by the provisions of section 5057 of the Revised Statutes of the United States, the action not having been brought within two years after the right of action had accrued to the plaintiffs, to which direction exception was duly taken.

Another motion was then made on the part of the defendants for an additional, allowance. The court took the motion under advisement and subsequently made an order allowing five per cent of the amount claimed by the plaintiffs. An appeal is also taken from this order.

The defendants did not deny the indebtedness, but defended it exclusively on the ground of the statute of limitations, and they succeeded in that defense. The case was a simple one, involving no intricate question of fact or law, and occupied but a short time in the trial, and we think it was not one in which an allowance should have been made. The order granting the allowance should be reversed.

Section 5057 of the Revised Statutes of the United States is as follows:

“ Section 5057. No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause' of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when an assignee is-appointed.”

As an original question we should have no difficulty in holding that this section has no application to an action brought by assignees in bankruptcy, to recover a simple and acknowledged debt owing to the bankrupts, but that it related only to questions of title to the property assigned and transferable to or vested in the assignee by .the decree in bankruptcy, so that no persons could contest the assignee’s right to such property after the expiration of two years, and so that the assignee could not pursue the same by 'action in the hands of a person claiming adversely, after the same lapse of time. We agree with the learned counsel for the appellant that it does not seem to be within the reasonable meaning of the words of the statute to say that a person who admits an indebtedness for the agreed price of goods sold and delivered, and never paid for, is a person claiming an adverse interest touching property or rights of property. To illustrate more fully, if the promissory note of A. B. were part of the assigned assets, and the title of the assignee were in nowise disputed, A. B. would not be a person claiming an adverse interest touching the property or rights of property vested in the assignee, and section 5057 would have no application to the case. The note being valid in the hands of the assignee would be subject to no' statute of limitations except that of the State, and if transferred by the assignees in bankruptcy the holder could bring suit at any time before the expiration of six years after the cause of action arose ' upon it. If, however, some third person claimed title to the note, adversely to the assignee in bankruptcy, he must sue to enforce that title within two years after his cause of action accrued against the assignee ; or if, on the other hand, the adverse claimant had possession of the note, the assignee in bankruptcy must, within the same time, bring his action to enforce his claim. These questions of title are quite independent of the indebtedness of the maker of the note, whose liability upon it exists and continues independently of any controversy between the adverse claimants over the title to the note itself.

We are bound, however, to accept the authoritative construction of the statute by the courts of the United States. The decisions of the courts seem to be, to a considerable extent, in direct conflict. (Smith v. Crawford, 6 Bened., 497; Re Krogman, 5 Bank’cy Reg., 116; Bachman v. Packard, 7 id., 353; Walker v. Towner, 16 id., 285; Doty v. Johnson, 6 Fed. Rep., 481; Payson v. Coffin, 4 Dillon, 386; Phelps v. McDonald, 99 U. S., 306.)

In Phelps v. McDonald, the last case cited, the court seem to have accepted the construction of section 5057, which requires that all suits by or against the assignees shall be brought within two years from the time the cause of action accrued, to be the true one; •although the question whether such construction was correct was not, in fact, presented by the case, the court holding that that section had no application to actions between bankrupts and his •assignee. But assuming that the court below gave the correct •construction to the section of the statute in question, it is settled by the Supreme Court of the United States that a fraudulent con-concealment, which prevents the commencement ■ of an action within the time specified by the statute of limitations, suspends the operation of the statute, so that it commences to run only from the time when a knowledge of the right of action comes to the plaintiffs. (Sherwood v. Sutton, 5 Mason, 143; Bailey v. Glover, 21 Wall., 349 ; Tyler v. Angevine, 15 Blatch., 543 ; Martin v. Fullings, 3 Fed. Rep., 206; Gifford v. Helms, 8 Otto, 252.)

In Bailey v. Glover (supra), it was held that where there has been no negligence or laches, on the part of the plaintiff, in coming to the knowledge of the fraud, which is the foundation of the suit, and when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by or becomes known to the party suing, or those in privity with him.

In Martin v. Fullings, the suit was brought to recover goods belonging to the bankrupt, omitted from his schedule and fraudulently concealed, and it was held to be properly brought within two years after the discovery of the facts. The principle of these decisions is applicable, we think, to the 'case at bar. Here the assignor in bankruptcy fraudulently concealed from the plaintiffs the fact of any indebtedness for goods sold and delivered by them to the defendants. They omitted the indebtedness and the names of their debtors from the schedules which they verified by their oath. The same omission was made in their schedule when they made the assignment for the benefit of their creditors, although the-oath required by the statute was taken.

The plaintiffs brought suit to set aside that assignment, and it was set aside by the Federal courts as void for fraud. But that fact brought no notice to the plaintiffs of the existence of the indebtedness of the defendants. It is hardly conceivable that the defendants did not know of the proceedings in bankruptcy, and that their creditors had been declared bankrupts; and no evidence was given tending to show that' they were not aware of those facts. It ivas proved that the plaintiffs had no knowledge of the existence of the. debt until about May, 1880, and' then suit was commenced soon after that time. Before commencing it they had caused their claim to be presented to one of the defendants, who, it appeared by the evidence, acknowledged the indebtedness, and declared, himself ready to pay the same, but without interest. He referred the matter to another of the defendants, who also, on personal application, acknowledged the indebtedness and promised to pay it.

There was a circumstance slight in itself, but sufficient without, explanation to justify the presentation of the question of fraudulent concealment on the part of the defendants themselves, to the jury. For it was shown that one of the defendants, when the attorney for the plaintiff called upon him and he offered to pay the same without interest, said that if the attorney would enforce the interest he, the defendant, “would divulge the whole thing, and that would reflect on the attorney’s father.” Taken in connection with the-other facts already mentioned, and unexplained, the jury might well have said that these parties not only knew of the existence of the indebtedness, but were connected with some fraudulent arrangement, by which the bankrupts were keeping the knowledge of the-indebtedness from their creditors, and seeking to preserve it in the hands of the defendants for their own use. It was only in case interest was sought to be enforced that the defendant threatened to divulge the whole thing; and from this fact, in connection with the readiness to pay without interest, the jury might have inferred that they were acting under a fraudulent arrangement for the benefit of the bankrupts, under circumstances in which they thought interest ought not to be charged. ■

We think that under the established rules of the United States-courts, the question of fraudulent concealment was a proper one to be submitted to the jury, and that it was error to refuse to do so.

It is not necessary to consider whether or not, under the laws of the United States, the several promises of the defendants to pay the debt took the case out of the statute.

The judgment must be reversed and a new trial granted, with ■costs to' the appellants to abide the event.

Daniels and Dwight, JJ., concurred.

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


author: Ter Curiam:

text:
    JAMES A. FLACK and Others, Executors, etc., of WILLIAM C. CONNER, late Sheriff, etc., Appellants, v. THE STATE OF NEW YORK, Respondent.

      Sheriff — not entitled to poundage.when the judgment debtor dies, while in his custody.

    The death of a judgment debtor while in the custody of the sheriff, under an execution issued against his person, does not entitle the sheriff to recover poundage from the judgment creditor.
    'The right of a sheriff to poundage after the arrest of the judgment-debtor depends upon some act to be done by the defendant or his friends, such as the payment of the judgment, or some act of the plaintiff, such as his consent to the debtor’s discharge, or upon the application of some legal principle by which his discharge is accomplished.
    Appeal from an order and decision of the State board of audit, filed May 16, 1882, disallowing the claim of the executors of the estate of William C. Connor, late sheriff of the city and county of New York, deceased, for poundage on an execution against the person of William M. Tweed.

      Delos McCurdy and H. W. Bookstaver, for the appellants.

      Leslie W. Russell, for the respondent.
   Ter Curiam:

We think the principles enunciated in the case of Ryle v. Falk (reported in 24 Hun, 255), and which was affirmed in the Court of Appeals upon the opinion delivered in this court, are decisive of this appeal. It was declared in that case as the settled law of the State, that upon the arrest’ of a person under an execution, judgment was satisfied so long as the defendant continued in custody under arrest, and the sheriff was entitled to his poundage whenever the defendant was discharged by the payment of the judgment, or under the act for the relief of debtors, or by the consent of the plaintiff, and it was also declared that under the Code the rules and provisions which govern executions against the body under the former statute, had not been changed, and further, that it was not the law of this State that the sheriff was entitled to no fees unless the judgment upon which process issued had actually been collected by him, and therefore the fees of the sheriff and his right to poundage had not been changed or affected by the provisions of the Code.

Assuming for the purposes of this appeal that the judgment debtor was held under the execution against his person, inasmuch as he was not discharged by the payment of the judgment, or under the act for. the relief of debtors, or by the consent of the plaintiff, none of the events occurred which entitled the sheriff to his fees. The judgment debtor died whilst in custody and not by-the act of the judgment creditor. The right of the sheriff to poundage after the judgment debtor is arrested, depends upon some act to be'done either by the defendant or his friends, namely, the payment of the judgment, or by the plaintiff by his consenting to the discharge, or by the application of some legal principle by which his discharge is accomplished, and all of these are predicated of the continued existence of the debtor after the act has been performed by which his liberation has been accomplished.

The death of the judgment debtor prevented the occurrence of any one of the acts mentioned, and he was therefore not discharged. His death did not prevent the'enforcement of-the judgment against his estate, notwithstanding his imprisonment, and therefore the judgment was in no sense collected in whole or in part.

■ None of the cases cited by the appellants are in conflict with the views herein expressed. They have been carefully considered and this is our view of their effect, and therefore the order appealed from should be affirmed, but without costs.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, without costs.


author: Daniels, J.:

text:
    HORACE B. CLAFLIN and Others, Plaintiffs, v. JULIUS FRENKEL and Others, Defendants.

      Arrest — order of, granted for the fraudulent disposition by the defendant of property situated without the State — Code of Civil Procedure, sec. 550, sub. 2 —A party who pursuant to the condition of an oi'der releasing him from an'rest stipulates not to sue, cannot thereafter avoid such condition.

    This action was brought by the plaintiffs, who were engaged in business in the city of New York, to recover the price of merchandise there sold to the defendants, who were engaged in carrying on business in the city of Mobile, in the State of Alabama. An order of arrest was granted and served upon the defendant Frenkel here, upon the ground that since the purchase of the goods the defendants had fraudulently disposed of their property in the State of Alabama with the intent to defraud their creditors.

      Held, that the order was properly granted under subdivision 2 of section 550 of the Code of Civil Procedure providing for its issue in actions upon contracts, where the defendant has since the making of the contract removed or disposed of his property with the intent to defraud his creditors; and that the fact that the property so disposed of was situated without the limits of this State was immaterial.

      Blasón v. Bruno (33 Barb., 520) distinguished and criticised.
    A defendant who is released from arrest, by an order imposing as a condition of such release that he shall stipulate not to bring an action for damages for false imprisonment, and who does so stipulate and obtains his release under such order, is not entitled on appeal to have so much of the order as imposed the condition reversed.
    Appeals by both parties from an order made at a Special Term discharging the defendant Frankel from imprisonment under an order of arrest granted in this action.

      Mél/ville H. Regensburger, for the plaintiffs.

      Rudolph Sampler, for the defendants.
   Daniels, J.:

The defendants appealed from that portion of the order which, required Frankel, who was under arrest,- to stipulate not to bring an action for damages because of his arrest as a defendant after his discharge. He did so stipulate and secured his discharge by complying with that portion of the order; and after having done that it was too late for him to complain that this condition had been imposed upon him. He received the benefit which a compliance with the condition proposed to him, and could not subsequently appeal from this portion of the order. For that reason his appeal should be dismissed.

The plaintiffs appeal from the portion of the order directing the defendant Frankel to be discharged from imprisonment under the order made for his arrest; and this appeal presents the more important point to be determined for the disposition of the case. It appeared by one of the affidavits made on behalf of the plaintiffs, that they were engaged in business in the city of - New York and sold and delivered to the defendants goods and merchandise at prices agreed upon, amounting to the sum of $8,755.90, no part of which had been paid. This affidavit was carelessly drawn, but still it is to be inferred from it, as the plaintiffs were engaged in carrying on their business at the city of New York, that the sales were made at that place, and that the defendants’ liability was incurred for the payment of the price of the goods, under and in conformity with the laws of this State, and for that reason when he was found here there would seem to be no impropriety in subjecting him to all the legal remedies which the law secured to the plaintiffs for the purpose of enabling them to obtain payment of their debt.

The order of arrest was made for the reason that the defendants after contracting tins debt had disposed of their property with intent to defraud their creditors. This was done in the city of Mobile, in the State of Alabama, where the defendants carried on their business. And that they did so dispose of their property is a fact left free from dispute in the case. Because this disposition was made by them of their property in another State it has been urged that it formed no ground of arrest in an action prosecuted in this State, and that their arrest was unauthorized if the defendants did not subject themselves to that remedy by the fact of the goods being purchased and delivered to them in this State. But as the Code has provided the remedy of arrest, it has not made it dependent upon any such distinction It has, on the other hand, declared in general terms that the defendant may be arrested in an action upon contract, express or implied, other than a promise to marry, where since the making of the contract he has removed or disposed of his property with intent to defraud his creditors. (Code of Civil Pro., § 550, sub. 2.) This remedy has been provided for in terms so broad as to be subject to no exceptions. In language certainly it includes .all actions on contract against a defendant who has removed or disposed of his property, intending thereby to defraud his creditors.

The Code itself has not declared this to be a violation of the 'obligation of the debtor to his creditors, but it arises out of the general principles of law adopted to secure the substantial morality and good faith of persons engaged in trade. At the common law, and wherever its principles may be observed, the debtor is restrained from making any disposition of his property, intending thereby to defraud his creditors. This obligation is recognized and in some form is enforced, wherever the common law prevails, and as that law is presumed to exist in the State of Alabama, it was obligatory upon these debtors carrying on their business there. In effect they were prohibited by its wholesome restraint from making any disposition of their property with the intention thereby of preventing their creditors from collecting their debts.

By making such a disposition these defendants violated this restraint of the law and the obligations resting upon them in favor of the plaintiffs as their creditors. And for that violation they became subject to arrest, under this provision of the Code, whenever either of them placed himself within the reach of the process of this court.

The case of Blason v. Bruno (33 Barb., 520) has been cited and is relied upon as requiring a different construction to be placed upon this provision of the Code. That was an action between parties who were residents of Cuba, where the entire transaction took place, and the court at Special Term discharged the order which had been made for the arrest of the delinquent party. The case very materially differed in its leading circumstances from that which has now been presented. For in addition to those already mentioned it was merely made to appear that the defendant had converted his property into money. But it was not shown that he had in any manner disposed of the money. The order for that reason was probably right, while the principal cause assigned for making it was not in harmony with this general provision of the Code.

A point similar to the one now presented arose in Brown v. Ashbough (40 How., 226). That was presented under a provision. of the same nature as that 'now contained in subdivision 4, section 549 of the Code of Civil Procedure. The action was upon a contract where the defendant had been guilty of a fraud in creating or incurring his liability. The parties resided in Hamilton, in Canada, where the sale of the property had been fraudulently induced, and for that reason it was claimed that the defendant was not liable to arrest in an action for the recovery of the debt, brought in this court. But on a very full consideration of the case by Marvin, J., a different conclusion was reached and sustained, and it was held that the defendant was liable to arrest under the same provision, as it was contained in the Code of Procedure, when he was found and proceeded against in this State. The right to arrest him was held to he merely an attribute of the remedy which the laws of this State had provided for the collection of debts that had been fraudulently contracted.

That conclusion was well sustained by the consideration given to it by the learned justice. (Id., 241-243.) And the reasons which supported the arrest in that instance would seem to be equally as applicable to a case of the nature of that now before the court. No substantial distinction can be drawn between the right of the creditor to arrest his debtor in a case where the debt itself has been fraudulently contracted, and the present case where, actuated by a like intent to defraud, the debtor has removed or disposed of his property. In each case the fundamental obligation requiring the observance of good faith in the conduct of the debtor is equally violated, and in one no more than it is in the other.

The construction which was acted upon in the case just referred to was substantially the same as that which was adopted in City Bank v. Lumley (28 How., 397) and in Johnson v. Whitman (10 Abb. [N. S.], 111).

And nothing whatever was suggested in Moller v. Aznar (11 id., 233), which was not consistent with, the same view. And that this should be held to be the effect of both these provisions of the law results from the circumstance that the right to arrest the debtor, when the facts essential to it are made to appear satisfactorily in the case, is a part of the remedy secured to the creditor to enable Mm to coerce bis debtor into the payment of his debt. It has been added to the ordinary course of procedure because of the debt02-’s positive misconduct in either fraudulently contracting the debt, or after it has been contracted, placing his property with a fraudulent intent, beyond the reach of his creditor. The wrong to the creditor is precisely the same whether the act may be committed in this or another State. And the enactment of a statute on the subject is not necessary for the admonition or information of the debtor that, in his dishonest conduct, he has violated his obligations to his creditor. Consciousness of his misconduct will result from his knowledge of the common principles of trading morality when a debtor, secures the property of another by making use of false representations, or deprives the creditor of the means of collecting his debt, by making a fraudulent disposition of his property. He requires no statutory provision to impress him with the conviction that his act is wrong and should be made the subject of punishment. Wherever, therefore, the creditor may be able to present his case in such a form as to bring it within the terms of the remedial provisions of the law, he should be held' entitled to the complete' remedy which has been provided for the collection of his demand.

This point was very fully considered in Whittemore v. Adams (2 Cowen, 626). There, by a cession of the debtor’s property, under an act of Congress in force bnly in the District of Columbia, his person had become exonerated from imprisonment. But notwithstanding that circumstances he was still held liable to arrest under the laws of this State in an action prosecuted here for the recovery of the debt. This conclusion was held to be warranted by the circumstance that the arrest was a portion of the remedy which the laws had here provided for the enforcement of the contract. (Id., 632.) And a similar view received the approbation of the court in Hinkley v. Marean (3 Mason, 88), and Titus v. Hobart (5 id., 378). Upon the effect of copious citations of English and American authorities, this has also been declared to be the settled law in section 571 of Story’s Conflict of Laws (6£h ed.). The principle is there broadly stated and maintained, that a debtor will be liable to arrest on a demand arising against him in another country, when the proceeding taken for its collection includes that as a part of the remedy. This general subject was considered in Don v. Lippmann (5 Clark & Finn, 1), where it was held that the party entitled to a legal remedy had the right to enforce it, as it was provided in the country where the proceeding should be taken.

Under the principles sustained by these authorities, as well as the very general language employed in the enactment of this subdivision of the Code, the plaintiffs had the right to arrest their debtors and hold them to bail, when they had placed themselves within the reach of the process of this court.

The case that was made out was all that could be required for this purpose. The order of arrest was a lawful proceeding in the action, and the order by which it was set aside should be reversed and an order entered denying the defendant’s motion, and directing his recommitment to the custody of the sheriff, and for the usual costs and disbursements.

Davis, P. J., and Macomber, J., concurred.

Order reversed and motion denied, with ten dollars costs and disbursements.


author: Macomber, J.:

text:
    JAMES S. COX and JAMES BOYCE, Appellants, v. WILLIAM E. DORWIN, Respondent.

      Bankruptcy proceedings — a stay of proceedings during their pendency, “until the further order of the court," is vacated by the receipt of his discharge by the bankrupt— XT. S. Bev. Stat., see. 5106.
    While this action was pending an order was made by the District Court of the United States for New Jersey, in bankruptcy proceedings instituted against the defendant, staying generally, all proceedings by his creditors during the ' pendency of such proceedings, “until the further order of the court.” Thereafter the defendant received a discharge in bankruptcy, whereupon the plaintiffs entered a judgment against him by default in this action.

      Held, that the defendant’s discharge vacated the stay; and that the plaintiff’s practice was regular.
    Appeal from order of the Special Term staying the plaintiffs’ proceedings, and granting leave to the defendant to plead his discharge in bankruptcy.

      John Brooks lea/oitt, for the appellants.

      Remvngton Yernam, for the respondent.
   Macomber, J.:

The sole ground for the defendant’s motion at the Special Term was an order granted by the District Court of the United States for New Jersey, in bankruptcy, staying, generally, all proceedings of creditors of the defendant pending his proceedings in bankruptcy. This stay was respected by the plaintiffs and their attorney until after they were apprised that the defendant had received his discharge in bankruptcy, and thereupon judgment was entered as upon a default.

The plaintiffs’ counsel contends, and, as we think, correctly, that the defendant’s discharge necessarily vacated the stay. The bankruptcy court, having only statutory and restricted jurisdiction, could not lawfully grant a longer restriction against creditors of the bankrupt who were pursuing their remedies in the State court. The provisions of the Revised Statutes of the United States is as follows:

Section 5106. “No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt until the question of the debtor’s discharge shall have been determined; and any such suit or proceeding shall, upon the application of the bankrupt, be staid to 'await the determination of the court in bankruptcy on the question of the discharge,” etc.

Nor is there anything in the order of the bankruptcy court which goes any further than the statute permits. The restraining order was only “ until the further order of the court.” The discharge in bankruptcy by necessary application was such a further order in the premises as permitted the plaintiffs to proceed with their action. (See Bump’s Bankruptcy [10th ed.], 700 et seq; In re M. Rosenberg, 2 B. R., 81.)

That part of the order permitting the defendant to plead his discharge in bankruptcy is not supported by any of the papers upon which it was granted. The motion below was solely upon the ground that it was not competent for the plaintiff to enter up judgment while the restraining order still existed. Failing in that, this application should have been denied.

The order appealed from should be reversed, with the usual costs, but without prejudice to the defendant, upon suitable papers, to come in' and interpose as a defense Ms discharge in bankruptcy, and such other defense as may exist.

Davis, P. J., concurred.

Present — Davis, P. J.; Daniels and Macomber, JJ.

So ordered.


text:
    WILLIAM M. PRICHARD and JOHN LEE SMITH, as Executors of and Trustees under the Will, etc., of WILLIAM D. THOMPSON, Deceased, Respondents, v. JOHN B. THOMPSON, in his own Right, and as one of the Executors of and Trustees under said Will, Appellant.

      Witt — validity of a discretionary power conferred upon executors, to distribute a fund among clum'itahle institutions — when the interest upon the fund is to be distributed with it.

    A testator gave and bequeathed to his executors bonds and stocks amounting at their par value to the sum of $150,000, to be distributed and applied to such charitable and educational uses, and in such manner as should be specified and directed in a codicil to his will, which he was not then prepared to make. In case no such codicil was made, then, upon trust, to distribute the said sum to and among such incorporated societies, organized under the laws of the State of New York or the State of Maryland, having lawful authority to receive and hold funds, upon permanent trusts, for charitable or educational uses, as his executors, the survivors or survivor of them, should select, and in such several sums as they should determine. The distribution was to be made and completed in the lifetime of the longest liver of two persons named in the will, and, at any fate, before the expiration of three ¡fears from the testator’s decease. The testator died without having made the codicil referred to in the will, and thereafter stocks and bonds of the par value of $150,000 were transferred to the executors.

      Held, that the direction authorizing them to distribute the fund among such of the corporations named as they should select was valid.
    That all interest received upon the stocks and bonds after the expiration of one year from the death of the testator should be included in and distributed with them. ■ . .
    Appeal from so much of the judgment of. the Special Term as establishes the validity of the tenth paragraph of the will of the plaintiffs’ testator. The action was brought to obtain a construction of the testator’s will.

      E. M. Hawks, for the appellant.

      D. Smith, for the respondents.
   Daniels, J.:

By the tenth paragraph of the will, the testator bequeathed and gave to his executors, bonds and stocks amounting at their par value to the sum of $150,000, upon the trust that they should distribute and apply the same to such charitable and educational uses, and in such manner as should be specified and directed in a codicil to his will, which he was not then prepared to make, and directed further in case such codicil should not be completed and executed, so as to form a part of his will, then upon trust to distribute the said sum of $150,000 among such incorporated societies, organized under the laws of the State of New Y ork or the State of Maryland, having lawful authority to receive and hold funds upon permanent trusts for charitable or educational uses as my said executors, the survivors or survivor of them, shall select for that purpose, and in such several sums, not exceeding in any case the amount that such incorporated body is empowered by law to take and hold upon the uses'aforesaid, as they, my executors, the survivors or survivor of them, shall determine.

He did hot prepare or execute such a codicil, and consequently left this bequest to be distributed under this direction contained in the will.

It was further directed that the selection and distribution to the sdcjpties should be made and fully,,completed /within the lifetime of the longest liver of the two persons lastly named in the fourteenth clause of the will. This clause nominated the executors selected by the testator for the execution of the will, and the last two named in it were "William M. Prichard and John B. Thompson. The division and distribution which it was intended should be made was therefore required to be entirely completed within the lives of these two individuals, and that did not exceed the period during which by the statute the absolute ownership of the property might be lawfully suspended (2 R. S. [6th ed.], 1167, § 1); and the expectation expressed by the testator that the division should be completed at any rate before the expiration of three years after his decease had no tendency to prolong this period. It was, on the other hand,.intended to abridge it and require that the division should be made within the designated period of thi’ee years, although that should be less than the time limited upon the lives of the last two persons named in the fourteenth clause of the will. The design of the testator was that it should certainly take place within the lives of those two persons, and that in no event should it exceed the period of three years. This construction is entirely consistent with all that is contained in the will concerning the distribution of this property. And even if the directions might be regarded as ambiguous, it is the duty of the court to adopt it for the purpose of sustaining rather than defeating the disposition intended to be made by the testator of this portion of his estate.

This paragraph of the testator’s will was not incapable of being executed by reason of the discretion committed by it to the executors in the selection of the societies to participate in the dis: tribution of the estate. That there were such incorporated societies organized under the laws of this State, and also under the laws of the State of Maryland, having authority to receive and hold funds upon permanent trusts for charitable and educational uses, and from which a suitable and proper selection could be made for the distribution of this portion of the estate of the testator, was found as a fact in the case. The objects generally intended to be benefited were capable of being selected under the exercise of the authority vested by the will in the executors, and that they were given this general power of selection does not appear to be inconsistent with any principle of law applicable to such a disposition.

In Power v.Cassidy (16 Hun, 294; S. C., affd. 79 N. Y., 602) such a power of selection,when limited to the Roman Catholic charities, institutions, schools or churches in the city of New York, as the majority of the trustees should select, and in such proportion as they should think proper, was sustained by this court and the Court of Appeals. And the fact that the power of selection in the present ease was so extended as to include the incorporated societies of this State, or of the State of Maryland, having lawful authority to receive and hold funds upon permanent trusts for charitable or educational uses, will not so distinguish this case from that which was then decided as to require the application of any different principle to its disposition. Whether the executors should be limited in their power of selection to a certain class of institutions of a city, or to another class in the entire State, will not change the application of the principle. That which would include the former would apparently be equally efficient in its comprehension of the latter. The power given to the executors to make the selection and divide this portion of the testator’s estate between the incorporated societies selected was, therefore, in conformity to the law and should be carried into effect by the executors. They have been given no discretion upon this subject, but have been required to distribute this sum in the manner provided for in the will, and the judgment properly directed them to carry the provisions made upon this subject into effect.

The disposition directed to be made of this portion of the estate is not affected by anything contained in White v. Howard (46 N. Y., 144). The restraints which were there observed related to the real property of the testator and are not controlling in a case of this nature. "What this testator required to be done was that this portion of his estate should in the end be divided between such incorporated societies as had lawful authority to hold the funds intended to be given them, upon permanent trusts, for charitable or educational uses; and no law or authority of this State prevented that design from being carried into effect. Even if the societies should be selected in the State of Maryland they must be such as ■would be legally .capable under the laws of that State of receiving funds upon such a trust; and no more than that could be required for the purpose of sustaining the direction given upon this subject. (Chamberlain v. Chamberlain, 43 N. Y., 424.) And that there were such societies has been established as a matter of fact in the case.

By the judgment which was entered, the income of the $150,000 of bonds and stocks required to be appropriated for this purpose was held to be distributable with the stocks and bonds themselves after the expiration of one year from the granting of letters testamentary. IJpon a settlement of the accounts before the surrogate a similar provision was made upon the subject, and both seem to be conformable to the directions given by the will as well as the statute declaring in general terms the time within which legacies should become payable by the will. The executors were required to select from the productive bonds and stocks of the testator’s estate this amount of $150,000, and they were bequeathed and given to.them for this purpose. As an incident of the title so created the income of the securities would also be held by the executors for the benefit of these ultimate beneficiaries.

The executors did as a matter of fact select, set off and transfer to themselves, as trustees, the bonds and stocks of the testator’s estate, amounting at their par value to the sum of $150,000, upon the.trusts created by the tenth paragraph of the will; they therefore held them for the sole and only purpose of making this distribution. From that time they were in their hands as trust property for the benefit of the distributees which they were required to select; and the fact that they delayed making the selection, which they should otherwise have made, could not deprive the societies intended to be benefited of their shares of the income'.

The ease appears to have been in all respects properly, disposed of at the trial, and the judgment should therefore be affirmed, with costs.

Davis, P. J., concurred.

Present— Davis, P. J., Daniels and Macombek, JJ.

Judgment affirmed, with costs.


text:
    REVERE COPPER COMPANY OF BOSTON, MASSACHUSETTS, Appellant, v. ANTHONY W. DIMMOCK, Respondent.

      Costs of appeal — when the successful party is entitled to them as a matter of right.

    A judgment entered by tbe plaintiff in an action for the recovery of money only, upon a verdict for more than fifty dollars, was reversed by the General Term and a new trial granted, with costs to the defendant to abide the event. The Court of Appeals reversed this order and affirmed the judgment, with costs.

      B.eld, that the plaintiff was entitled to include in his bill of costs the items allowed by the Code for services rendered and disbursements incurred upon the appeal to the General Term.
    Appeal from au order made at a Special Term denying a motion for the readjustment of costs.

      Edward B. Whitney, for the appellant.

      George Putnam Smith, for the respondent.
   Daniels, J.:

The plaintiff obtained a verdict exceeding in amount the sum oí fifty dollars in an action for the recovery of money only. The judgment upon it was reversed by the General Term and a new trial ordered, with costs to the defendants to abide the event. From this order an appeal was taken to the Court of Appeals where it was reversed and the judgment on the verdict was affirmed, with costs.

In the adjustment of the plaintiff’s costs the items for services and disbursements on the appeal to the General Term were excluded. This denial of these costs.was erroneously made, for the plaintiff was entitled to costs, as a matter of course, upon the recovery of the verdict obtained in the case. (Code of Civil Pro., § 3228, sub. 4.) And when costs are so awarded section 3251 of the Code has prescribed the precise items which shall be allowed, and by subdivision 4 of this section the rejected items have been included.

It was not requisite that in the final determination these costs should be in direct terms awarded, for the law had declared the right to them to follow the favorable decision which was made. (Ayers v. Western R. R. Co., 49 N. Y., 660.) The case of Howell v. Van Siclen (8 Hun, 524) was that of a reversal and a new trial ordered, where the costs have been made discretionary; and the disposition of Matter of Protestant Episcopal School (86 N. Y., 396), and the Union Trust Company v. Whiton (78 id., 491), were equally discretionary in this respect.

Neither of them, therefore, is applicable to the case now before the court; and the same observation is equally as pertinent to that of the First National Bank of Meadville v. The Fourth National Bank (84 N. Y., 469).

The plaintiff had a lawful right to the costs and disbursements now claimed by him. The order should therefore be reversed, with costs, and an order directing a readjustment in which the allowance of these controverted items shall be made.

Davis, P. J., and Macomber, J., concurred.

Order reversed and readjustment ordered, with ten dollars costs and disbursements.


text:
    In the Matter of MAX STEINERT, an Attorney.

      Contempt — imprisonment of an attorney for a failure to paiy a fine — what statements as to his inability to pay it do not justify his discharge— Code of Civil Procedure, sec. 2286 —1843, chap. 9.
    An attorney having been confined in jail for the period of three months and two days for the non-payment of a fine imposed upon him by way of punishment for contempt, applied to be released upon the ground of his inability to pay the fine. His affidavit stated that he had no means wherewith to pay it and that his relatives were not in such pecuniary circumstances as to enable them to pay it for him. No details were given, nor were his statements in any way corroborated. In his affidavit, made on this application for his discharge, he swore that if given an opportunity he would pay the amount due, and believed he could do so in the course of a year or two. Upon the issue of the warrant for his arrest he had given bail for his appearance in the sum of $1,000.

      Held,, that the statement made by him did not warrant the court in discharging him.
    That the order discharging him should be reversed, and he should be recommitted to prison, unless he should enter into a bond, with one or more sufficient sureties, conditioned for the payment of the fine in three equal annual installments.
    That, in a proper case, if he could not be lawfully released under section 2286 of the Code of Civil Procedure, he could be under chapter 9 of 1843.
    Appeal from an order made at a Special Term held at chambers discharging Max Steinert, an attorney and counselor-at-law, from arrest and imprisonment under a warrant of commitment granted by this court.
    The motion for the discharge of Mr. Steinert was made on his affidavit and on the warrant of commitment.
    In his affidavit he stated, among other things, that if relieved from imprisonment he would, with the assistance of his relatives and with money which he believed he would be able to earn, pay the whole of the fine in the course of a year or so ; and he swore that if given an opportunity he would pay every dollar of the amount.

      William G. Clifford and Henry Bisehoff’ Jr., for Simmermeyer, appellant.

      J. G. Julius Langhein, for Max Steinert, respondent.
   Daniels, J.:

At the time of his release the attorney had been in custody for the period of three months and two days for the non-payment of a 'fine of $1,100 imposed upon him by way of punishment for a con tempt. It is not necessary to inquire whether he could be lawfully released under section 2286 of the Code of Civil Procedure, for by chapter 9 of. the Laws of 1843 similar authority was given to the court over cases of this description. Under one or the other the court certainly, in a proper case, has the power to relieve the person imprisoned. But for the purpose of entitling him to such relief it is required to be shown that the party imprisoned is either unable to endure the imprisonment or to pay the sum required by him to be paid. It was not shown that Steinert was unable to ' endure further imprisonment. All that was stated in his affidavit was that he was unwell and feared that longer imprisonment would permanently injure his health. This was very far from showing that he could not endure further imprisonment; and it was not asserted for that purpose, but merely as a reason why an order should be made allowing the motion to be brought on without giving the usual notice. The real ground, upon which the affidavit disclosed it to be the purpose upon which to apply for his discharge, was the inability of the attorney to obtain' the money required to make payment of the fine.' And what he said Upon this subject was that he had no means with which to pay it, and that his relatives were not in such pecuniary circumstances as to enable them to make the payment for him. This was substantially the statement upon which he was discharged from imprisonment. It was made without detail or any corroboration whatever and proceeded from the party himself, whose misconduct appears' to have been of no common character, and by the opinion given on the determination of his case it certainly should not have been credited (Matter of Steinert, 24 Hun, 246), for it was then made to appear that “ he had been guilty of several criminal offenses in his efforts to retain the moneys collected by him,” and as a mere 'matter of punishment it was due to the proper administration and observance of professional •obligations and good conduct that the imprisonment should hare been prolonged beyond the time to which it was allowed to extend.

When the attachment was issued upon which the attorney was arrested he was able to obtain bail for his appearance in the sum of $1,000; and there is reason to believe from this circumstance that he had the ability of securing the future payment of this fine, or some substantial portion of it, in order to obtain his release from imprisonment. And if he had his sworn determination to pay the demand after his release should be required to be.observed in that manner. Upon the simple statement made by him his discharge was unwarranted, unless proceedings of this nature are to be divested of their corrective character and allowed to degenerate into a solemn legal farce.

The order should be reversed and the motion denied and the attorney recommitted to prison unless he shall enter into a bond, with one or more sufficient sureties, for the payment of the fine imposed upon him in three equal yearly installments, which will afford him a longer period for that purpose than the one mentioned by him in his affidavit as necessary.

Davis, P. J., and Brady, J., concurred.

Order reversed, motion denied. Order entered as directed in opinion.


author: Brady, J.:

text:
    In the Matter of Opening LEXINGTON AVENUE, between Ninety-seventh and One Hundred and Second Streets.

      Constitution — streets in cities may be laid out by authority of a private or local bul— Constitution, art. 3, sec. 18 —1881, chap. 469, is constitutional.

    The prohibition contained in section 18 of article 3 of the Constitution against the passage of a local or private hill “laying out, opening, altering, making or discontinuing roads, highways or alleys ” does not apply to streets and avenues of cities, but only to roads and highways as known and designated under the general highway system of the State.
    Chapter 469 of 1881, providing for the laying out and opening of Lexington avenue in the city of New York by the proper authorities of the city, is constitutional and valid.
    Appeal from au order of the Special Term appointing commissioners of estimate and assessment in the above entitled matter.

      Herbert A. Shipman, for F. R. Houghton and others, appellants.

      Arthur Berry, for city of New York, respondent.
   Brady, J.:

The legislature, by chapter 469 of the Laws of 1881, entitled “An act relative to the establishment, laying out and opening or extension of Lexington avenue from Ninety-seventh street to Ninety-eighth street, and from Ninety-ninth street to One Hundred and Second street, in the city of New York,” altered the map or plan of this city by laying out thereon by metes and bounds Lexington avenue between the points above described. It was provided in the act that the proper authorities of the city of New York should take proceedings to open the said avenue. In pursuance of this act application was duly made to the Supreme Court by the department of public works for the appointment of commissioners of estimate and assessment.

This motion was opposed upon the ground that the act laying out the avenue • was unconstitutional and void, being in conflict with section 18 of article 3 of the State Constitution. The objection was overruled and the application granted, and an order to that effect duly entered on the 14th day of J une, 1882. From that order this appeal was taken.

The learned justice presiding at the Special Term, in an opinion which, we adopt, held that the section of the Constitution mentioned was not violated, because it only applies to roads and highways as known and designated under the general highway system of the State, or, in other words, that it relates merely to roads and highways and not to the streets and avenues of cities. And this view was sustained, it was thought, by the case of the People ex rel. The Commissioners v. Banks (67 N. Y., 568), though not precisely in point, for the reason that it presented an analogous question to that involved herein, and it was also thought safe to regard the remarks of the learned judge delivering the opinion in the Court of Appeals as conveying the true import and meaning given by that court to the section under consideration, the learned judge having said:

“ This provision was designed to prevent any interference with the general highway system of the State, or with the keeping of the ordinary highways and public roads in repair under that system, and the supervision of- the officers designated, and in the use of the means and the labor provided by law.”

This conclusion seems to be justified. A street or avenue of a city is not a highway within the meaning of the section under consideration, or within the meaning of the statutes relating to the laying out, opening, etc., of the highways. As contended by the counsel for the respondent the mode of procedure in the two cases is entirely different, and so is the result. The distinction seems to be that lands taken for highways in this State are not taken in fee, but an easement only is acquired for the object in view, while lands taken for the purposes of a street or avenue are acquired in fee by the city. This is suggested in the case of the Washington Cemetery v. Prospect Park and Coney Island Railroad Company (7 Hun, 655), in -which it was said that “under general statutes of the State lands for highways are not taken in fee, but an easement only is taken for the purpose of the highway.” This case was affirmed in the Court of Appeals. (68 N. Y., 630.)

In the State of Indiana it has been held that the general statutes of the State in relation to “ public highways ” do not apply to the streets and alleys of an incorporated town or city. (Indianapolis v. Croas, 7 Ind., 9.)

And it was held in the State of New Jersey that the general road acts of the State do not apply to incorporated places having special power to regulate and improve streets. (Cross v. Morristown, 18 N. J. Eq., 305; State v. Morristown, 33 N. J. Law, 57.)

For these reasons we think the case was properly disposed of in the court below, and that the order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars 'costs and disbursements,


text:
    ROBERT T. SMITH and WILLIAM A. WICKS, Respondents, v. JOHN B. DAVIS, Appellant.

      Attachment — when it should he set aside because of the insufficiency of the affidavit upon which it was granted.

    Upon the application of the plaintiffs an attachment was issued against the property of the defendant upon an affidavit made by the plaintiff Smith, in which he stated that he was one of the plaintiffs comprising the firm of Smith & Wicks; that the defendant was “indebted to the above named plaintiff in the sum of $11,398.65 over and above any counter-claims or offsets, and that the grounds for the plaintiffs’ claim are as follows, to wit: For goods, wares and merchandise sold and delivered to the amount of said sum of $11,398 65; the whole amount whereof is now due and owing.” It then alleged the non-residence of the defendant.

      Meld, that the affidavit failed to show the existence of any indebtedness from the defendant to the plaintiffs, and that the attachment should be vacated upon the application of one who, subsequent to the issue thereof, acquired an interest in the property seized.
    Appeal by Edward D. Christian from an order made at a Special Term denying a motion to set aside an attachment issued in this action against the defendant.

      William L. Royally for the appellant.

      E. More, for the respondent.
   Daniels, J.:

The applicant in whose behalf the motion to set aside the attachment was made was shown to have acquired an interest in the property attached after the levying of the attachment. That entitled him to move to set it aside because of the insufficiency of the affidavit on which it. had been issued. (Steuben Co. Bank v. Alberger, 75 N. Y., 179; 78 id., 252.) When that case was last before the Court of Appeals it was definitely decided that such a party had the right under the provisions of the Code to make and maintain a motion of this nature, if in fact the affidavit was not sufficient to justify the issuing of the attachment; and that was claimed to have been the effect of the affidavit upon which the attachment in the action had been issued. The affidavit was exceedingly brief, and after being entitled in the action was in the following words and figures:

City and County of New York, ss. :
“ Robert T. Smith, being duly sworn, doth depose and say that he is one of the plaintiffs composing the firm of Smith & Wicks; that the above named defendant is indebted to the above named plaintiff in the sum of eleven thousand three hundred and ninety-eight and 65-100 dollars over and above any counter-claims or offsets, and that the grounds for plaintiffs’ claim are as follows, to wit: For goods, wares and merchandise sold and delivered to the amount of said sum of $11,398.65. The whole amount whereof is now due and owing. And this deponent further says that the defendant is not a resident of this State, but resides and is at Richmond, in the State of Virginia.
“ROBERT T. SMITH.”
Sworn to before me, this 15th day ) of September, 1882. ■ )
Alex. Wiley,
Notary Public, N. Y. Co.

By this affidavit no demand in favor of the plaintiffs against the defendant was established. But whatever might have existed'was stated to be an indebtedness “ to the above named plaintiff,” who was the person alone who made the affidavit, and this indebtedness was stated to have been created for goods, etc., sold and delivered to the amount of $11,398.65, the whole of which was then due and owing. These statements, besides being insufficient to establish a cause of action in favor of the plaintiffs, were likewise insufficient to present a cause of action in favor of the one of them who made the affidavit, for it was not stated that either the plaintiffs or he himself had sold and delivered the goods, or that such sale had been made to the defendant in the action. All the facts mentioned may very well be true and still the defendant not be liable either to the plaintiffs or to the plaintiff making the affidavit to the amount of a single dollar. To authorize an attachment the provisions of the Code require a cause of action to be shown by the affidavit, and that' which was made in this case wholly failed to comply with that requirement. The assertion of the indebtedness itself was a mere conclusion which the facts afterwards related in no manner tended to sustain, for nothing was inserted in the affidavit from which it conld be inferred that it was intended to be stated that the goods had been sold to, or even on the credit or liability of, the defendant in any form. An indictment upon this affidavit accusing the person making it of falsely swearing that the goods had been sold to or on the credit of the defendant could not for a moment be sustained, for no such averment by' the most liberal implication can be constructively derived from it.

The case in this respect is no more favorable to the plaintiff than that of Pomeroy v. Ricketts, recently decided, upon the effect of a similar affidavit, by the General Term of this department. (27 Hun, 242.) No authority has been found under which a seizure of the defendant’s property by means of an attachment can be sustained on this affidavit. It has been urged that Reed v. French (28 N. Y., 294) sanctioned a practice as loose and indefinite as that which resulted in this affidavit. But that was a case arising under the provisions of the Code prescribing the statement required to be made to support the confession of a judgment, and where the defendant himself practically consented that his property might be affected and incumbered by means of the statement which he made. The nature of the provisions made upon this subject do not require that degree of care and strictness which has been found necessary to be observed to protect the owners of property from its unauthorized and unwarranted seizure. To entitle a party to make such a seizure before his right to appropriate the defendant’s property has been established by evidence, reasonable and satisfactory proof is required. A plain case must be made out, and where it is not then it necessarily follows that the attachment must be set aside. This rule imposes no hardship upon the applicant for an attachment for he is allowed to make out his case by his own unsupported oath; and where the facts are such as will warrant him in making-the statements required for this purpose he should be obliged carefully and intelligently to embody them in the affidavit.

The order should be reversed and an order entered vacating the attachment, with the usual costs and disbursements.

Davis, P. J., and Brady, J., concurred.

So ordered.