author: Beady, P. J.;

text:
    SELINA BARTLETT, Respondent, v. JOSEPH MUSLINER and Others, Appellants.

      Evidence — general reputation of a person’s being unma/rried is not admissible to disprove his ma/rriage — Bowes'— a grantee of the husband, cannot set up a mortgage which was a lien upon the premises at the time of the maniage, against the widow's claim for dower.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee, and from an order confirming'the report of a referee.
    This action was brought to recover dower in the property known as No. 106 Gold street, in the city of New York. It has been twice tried. On the first trial the jury disagreed, and on the second, a verdict was rendered for the plaintiff on the issue of marriage. Subsequently the case was sent to a referee to report what was the proper dower for the plaintiff, and to take an account of the rents and profits of the property for the six years preceding.
    It appeared from the report, that on the 14th day of May, 1875, the plaintiff, in due form of law, made demand of her dower, in the lands and premises described in the complaint, of defendants. That at the time of plaintiff’s marriage to Caleb Bartlett, who was then seized of the premises, there was a mortgage thereon dated 25th August, 1856, and duly recorded, of $10,000, from said Bartlett to Caroline A. "Wyeth; that on 'the 28th of May, 1858, said Bartlett conveyed the premises to James H. Francis for the consideration of $14,000; that Francis assumed the payment of the mortgage, and this was taken as part of the purchase-money, and that said mortgage was canceled of record in November, 1859 j that Francis conveyed the premises to Lawrence Schultz, who conveyed the same to Frederick Fink; that in April, 1864, Fink conveyed to Isaac Iioehster for $12,000, and that in the summer of 1868, said Iioehster conveyed the premises, by a warranty deed, to the defendants, and was paid by them as the price thereof $30,000, and at the same time he orally promised the defendants the good will of the business.
    The referee adjudged and determined that the mortgage aforesaid from Caleb Bartlett to Caroline A. Wyeth in no way affected the plaintiff’s right of dower as against defendants, as they were ■estopped by claiming through the said Caleb Bartlett, the husband, or his asssignee, from calling in question the plaintiff’s right of dower in the premises.
    The court at General Term said: “Another exception taken during the trial and presented for consideration, was the ruling of the court upon this question: * State what was Bartlett’s reputation as to his being a married man ? ’ The object of this question was to prove .a negative, and on the part of the appellant it is asked, in the brief, if general reputation as to marriage is admissible, why not general reputation as to being unmarried 1 It is true that marriage may be presumed from the general reputation of the parties as husband and wife in connection with other facts and circumstances. (Brinkley v. Brinkley, 50 N. Y., 192, and cases there cited.)
    But the negative proof of this fact, namely, that by general reputation there was no marriage sought to be established in the manner adopted by the defendants, is unprecedented, which is a sufficient answer to it.
    The chief point in the case, as stated on the appellant’s brief, is whether the plaintiff was entitled to dower in anything more than the equity of redemption at the time of the alienation by her husband, who conveyed the property subject to a mortgage of $10,000. The report of the referee shows that the defendants do not claim under the mortgage, but by a chain of title from Francis, to whom the plaintiff’s husband conveyed the premises, and by whom the mortgage was not only assumed, but paid, as shown by the fact that the conveyance to Francis is dated on the 28th of May, 1858 ; the conveyance by him to Schultz bears date March 18, 1861, and the mortgage discharged and canceled of record in November, 1859.
    The statute provides that where a person seized of an inheritance in land shall have executed a mortgage of such, estate before marriage, his widow shall nevertheless be entitled to dower out of the land mortgaged as against any person except the mortgagee and those claiming under him. (2 R. S. [Banks’ 6th ed.], 1121.) It will have been perceived that the mortgage herein was executed prior to the marriage. Notwithstanding this provision of the statute which seems to admit of no doubt of the plaintiff’s right to recover, the appellants are understood — although it is not very distinctly, asserted in the briefs •— to claim that the mortgage having been paid off by Francis, and the defendants claiming under Francis as subsequent grantors, have the right to be subrogated to the rights of the mortgagee and the amount of the mortgage deducted from the value of the property. This is substantially the language of the proposition as presented for consideration. All the adjudications, however, in this State, affecting the question, are to the contrary.
    In the case of Van Dyne v. Thayre (19 Wend., 162) it was said by Cowen, J.: “ There can be no doubt that a conveyance in any form of the husband’s equity of redemption, though it arose upon a mortgage given by him before coverture, would be altogether ineffectual as a bar of dower when set up by his mere assignee against his widow. As between the widow and assignee the equity of redemption would be looked upon as a legal estate. Being disconnected with the title of the mortgagee he shall never, in answer to a claim of dower, be allowed to set up the mortgage as an outstanding title. As a defendant, claiming under the husband by a conveyance subsequent to the coverture, he stands absolutely estopped to deny the paramount right of the widow. In short the mortgage is for all purposes of defense to him a nonentity.”
    In Jackson v. Dewitt (6 Cow., 316) the rule is clearly stated which governs claims kindred to those urged in this case. Woodavorth, J., referring to the cases of Hitchcock v. Harrington (6 John., 290), and Collins v. Torry (7 id., 278), says, that they decide that the widow may recover her dower out of the land mortgaged against the tenant deriving title by mesne conveyance from the husband; that the tenant cannot deny the seizin of the husband, nor set up the mortgage as a subsisting title, when there has been no foreclosure or entry by the mortgagee. And this result is in harmony with the doctrines declared in the case in 19 Wendell (supra).

    In Runyon v. Stewart (13 Barb., 537) it was expressly held that a mortgage given by a husband and wife to secure the purchase-money of the mortgaged premises could not, after having been satisfied and discharged of record, be set up by the assignee of the husband as a bar to his widow’s right of dower. It was also said in that case that there could be no doubt that the husband of the plaintiff acquired an estate in fee by the deed which he received from his mortgagee, subject to be defeated by the mortgage to the latter, which mortgage, at law as well as in equity, was a security merely, the mortgagee having but. a chattel interest, the freehold being in the mortgagor.
    This doctrine has been sustained by the recent case of The Trustees of Union College v. Wheeler (61 N., Y., 118), in which it is said that the mortgagor, both in law and equity, is regarded as the owner of the fee and the mortgage is a mere chose in action, a security of a personal nature, an assignment' of which could not pass the title. Where the party is in possession under a foreclosure of a mortgage, the rule is different, as it must be under the statute, the object of the foreclosure being to protect and complete the title of the mortgagee under the mortgage; for the mortgage, while a mere lien, is still such a one that a foreclosure ripens it into a title, extinguishing that of the mortgagor. And that is the case not only in favor of the mortgagee, but also of the purchaser at the foreclosure sale, and of all persons afterward claiming under him. (Smith v. Gardner, per Daniels, J., 42 Barb., 365.)
    It should be borne in mind not only that Francis, through whom the defendants derive title, was not a mortgagee, but a vendee deriving title from the plaintiff’s husband, assuming the payment of the mortgage which he subsequently discharged, and that he occupied the position really of one paying cash for the property described in the deed to him from the plaintiff’s husband. lie took possession under his deed and the obligations which he assumed by it, and not under the mortgage which he had assumed to pay as a parj; of the coñsidération and which he did pay. lie, therefore, took the title subject to the superior rights of the plaintiff who did not join in the conveyance. She was clearly entitled, at the death of her husband, to be endowed of the land which he conveyed during coverture, to the extent of one-third of the value at the time of the alienation. Such was the rule before the Kevised Statutes. (Marble v. Lewis, 36 How. Pr., 337, and cases cited.)
    The appellant in this case predicates all the propositions in antagonism to those herein expressed, upon the assumed fact that the defendants held under the mortgage. If his position were correct, the plaintiff could not recover. (Van Dyne v. Thayre; Van Dyne v. Sairs; Jackson v. Dewitt, supra; Denton v. Danny, 8 Barb., 618; De Lisle v. Herbs, 25 Hun, 485.) This is, as we have seen, an erroneous view of the relations between the parties. The defendants can derive no benefit from the fact that the mortgage was paid by Bartlett’s grantee. He' was not the mortgagee of Bartlett and was not in any way connected with the mortgagee, except as a debtor having assumed its payment. The' rule governing actions kindred to this, eliminated by the cases cited, is this, namely: the widow of one seized of lands conveyed during coverture is entitled to dower in them, if she did not join in the conveyance; unless the persons holding the title took or acquired possession after forfeiture thereof, under a mortgage.
    The chief question in this case, therefore, must be decided against the appellant, and the report of the referee sustained in so far as it rejects the proposition that the amount of the mortgage should be deducted from the value of the land.”

      John T. Cornell and John McKeon, for the appellants.

      William A.' Copp and Lra Shafer, for the respondent.
   Opinion by

Beady, P. J.;

Daniels and Barker, JJ., concurred.

Judgment modified as directed in opinion, and affirmed as modified, without costs to either party.


source: Caselaw Access Project

license: Public Domain

text:
    James E. Brett and others, Respondents, v. Thomas Minford and others, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Brady, J.


text:
    John Williamson, Respondent, v. Henry M. Newhall and others, Appellants.

   Judgment modified as directed, and affirmed as modified, without costs. Opinion by Daniels, J.


text:
    Thomas H. Henry, Respondent, v. Samuel H. Randall, Appellant.

   Motion for reargument denied. Opinion by Daniels, J.


text:
    James C. Fitzpatrick, Respondent, v. The New York and Manhattan Beach Railway Company, Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinions by Barker, J., and by Brady,- P. J., dissenting.


text:
    In the Matter of William T. Blodgett.
   Order reversed. Opinion by Brady, J.


text:
    William A. Coleman, Respondent, v. Annie B. Phelps, Appellant.

   Judgment affirmed. Opinion Per Curiam.


text:
    Anastasia Britt, Administratrix, etc., Respondent, v. Francis Alexandre and others, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Barker, J.


text:
    The Central National Bank of the City of New York, Apellant, v. David Valentine, Respondent.

   Judgment affirmed. Opinion by Brady, P. J.


text:
    James H. Lyles and Walter H. Gilson, Plaintiffs, v. John M. Hagy and others, Defendants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Brady, J.


text:
    The Rector, etc., of Trinity Church in the City of New York, Respondents, v. Jacob H. Vanderbilt, Appellant.

   Judgment affirmed. Opinion by Brady, P. J.


text:
    Marie Antoinette Witthaus, Respondent, v. Frederick C. C. Schack, Appellant.

   Judgment modified as directed, and affirmed as modified, without costs. Opinion by Daniels, J.


text:
    The Merchants’ Loan and Trust Company, Respondent, v. Henry Clair, Appellant, Impleaded, etc.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels, J.,'and by Barker, J., dissenting.


text:
    Horace A. Grout, Respondent, v. Alice H. Cary, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by Barker, J.


text:
    Marian Langdon, Appellant, v. The Mayor, etc., of the City of New York, Respondents.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels, J.


text:
    John G. Smith and others, Respondents, v. Jonathan Longmire and Charles C. Pinckney, Appellants.

   Judgment affirmed, with costs. Opinion by Davis, P. J.


text:
    Edwin A. Pratt, Respondent, v. Charles Appleby, Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J.


text:
    The People of the State of New York ex rel. The Commissioners of Charities and Corrections v. James H. Gibney.
   Judgment reversed, with leave to serve amended complaint upon payment of costs.,s Opinions by Davis, P. J., Brady and Ingalls, JJ.


text:
    The People of the State of New York ex rel. Lawrence Fallon, Respondent, v. The Board of Police Commissioners of the City of New York, Appellants.

   Order reversed, with costs. Opinion by Davis, P. J.


text:
    George F. Norton, Plaintiff, v. Terence J. Duffy, Defendant.
   Judgment ordered by defendant. Opinion by Brady, J.


text:
    Alden B. Stockwell, Appellant, v. Joseph Richardson, Respondent.
   Judgment affirmed. Opinion by Daniels, J.


text:
    John Collins, Appellant, v. Sarah J. Collins, Respondent.
   Motion denied, noth ten dollars costs. Opinion by Daniels, J.


text:
    Ann Louisa Gardner and William H. Webb, Admmistrators, etc., Appellants, v. Cornelia E. Stevens and others, Respondents.

   Decree affirmed. Opinion by Brady, J.


text:
    Samuel F. Prentiss, as Receiver, etc., Appellant, v. William J. Nichols, Respondent.

   Judgment affirmed, with costs. Opinion by Daniels, J.


author: Davis, P. J. :

text:
    MARIA SALUD O. YOUNGER, Respondent, v. MARY ANN PELTON DUFFIE, Appellant, Impleaded, etc.

      Action to establish a will — what is a sufficient allegation of the non-residence of the testator — Oode of Oiml Procedure, see. 1861.
    The complaint, in an action to establish a will, alleged that the testator, “ General Alfred 1ST. Duffié, late United States consul at Andalusia, in the kingdom of Spain, temporarily residing at Cadiz, in said kingdom, but an inhabitant of and domiciled at West Brighton, in the county of Richmond and State of New York, died on the 8th day of November, A. D. 1880, at the said city of Cadiz, and that he was, at the time of his death, possessed of personal property within the State of New York.” It then averred that in the year 1880, at the city of Cadiz, he made and published his last will and testament, and in May, 1881, a codicil thereto, in conformity to the laws of Spain.

      Held, that the averments as to the residence of the testator were sufficient to justify proof, upon the trial, of facts showing that the testator was a nonresident of the State at the time of the execution of the will and of his death, within the meaning of that term as used in subdivision 2 of section 1861, of the Code of Civil Procedure.
    The complaint also alleged that the testator signed, published, declared and executed his will and codicil before a notary and three witnesses, and that the will and codicil had been duly recorded by the notary before whom they were made and published in his register or protocol, and that they remained on file in the archives of his notarial office from which they could not be removed for any purpose whatever. The copies of the will and codicil annexed to the complaint showed that each of these instruments was subscribed by the testator, the witnesses and the notary.

      Semble, that the complaint stated a cause of action under the first subdivision of the section providing for the proof of a will executed in such manner and under such circumstances as that it might, under the laws of the State, he admitted to probate in the surrogate’s office, where the original will is in another State and country, under such circumstances that it cannot be obtained for that purpose.
    Appeal from a judgment of the Special Term overruling a demurrer to the supplemental complaint herein.

      Coudert Bros., for the appellant.

      Alcott & Mesin'e, for the respondent.
   Davis, P. J. :

The demurrer is upon the ground that the supplemental complaint does not state facts sufficient to constitute a cause of action.

The action is brought under section 1861 of the Code of Civil Procedure. That section provides that “an action to' procure a judgment establishing a will may be maintained by any person interested in the establishment thereof, in either of the following cases:

• 1. “Where a will of real or personal property, or both, has been executed in such a manner and under such circumstances that it might, under the laws of the State, be admitted to probate in a Surrogate’s Court; but the original will is in another State or country, under such circumstances that it cannot be obtained for that purpose; or has been lost or destroyed by accident or design^ before it was duly proved and recorded within the State.”

2. “ Where a will of personal property made by a person who resided without the State at the time of the execution thereof, or at the time of his death, has been duly executed according to the laws of the State or country in which is was executed, or in which the testator resided’ at the time of his death, and the case is not one where the will can be. admitted to probate in a Surrogate’s Court under the laws of the State.”

The original will and codicil sought to be established in this case are in Spain, under such circumstances that they cannot be obtained for probate before the Surrogate’s Court. The will relates to personal property, and the plaintiff is alleged to be a person interested in the establishment thereof. The supplemental complaint in respect of the question of residence avers that General Alfred N. Duffié, late United States Consul at Andalusia, in the kingdom of Spain, temporarily residing at Cadiz, in said kingdom, but an inhabitant of and domiciled at West Brighton, in the county of Richmond and State of New York, died on the 8th.day of November, A. D. 1880, at the said city of Cadiz ; and tliat he was, at the time of his death, possessed of personal property within the State of New York.”

It then avers that the said Duffié, at the city of Cadiz on the 28th of January, 1880, made and published his last will and testament, and afterwards, on the 1st of May, 1881, made and published a codicil thereto, which were duly executed in conformity to the laws of Spain, and duly recorded by the notary before whom they were made, and published in his register or protocol, and remain on file in the archives of his notarial office, from which they cannot be removed for any purpose whatever. It then proceeds in substance to set forth the laws of Spain, and to allege that the defendant Mary Ann Belton Duffié was nominated executrix of the said will, but that she declines to proceed with thé probate thereof.

It is contended by the appellant that the averments are not sufficient to satisfy the requirements of the second subdivision of section 1861 of the Code, because they fail to show that the testator resided without the State at the time of the execution of his will, or at the time of his death’. The averment is in substance that at the time qf the making of the will, and at the time of his death, the testator was temporarily residing at Cadiz, in the Kingdom of Spain, but was an inhabitant of and domiciled at West Brighton, in the county of Richmond and State of New York.

The question presented is whether the averment of temporary residence at Cadiz is so controlled by the averment that the testator was an inhabitant of and domiciled at West Brighton, in the county of Richmond and State of New York, as to show that he was a resident of the State, and not a non-resident within the meaning of the statute.

The question is certainly not free from doubt, but we are of opinion that under the averment that the testator was temporarily residing at Cadiz, in Spain, at the time of the execution of his will, and at the time of his death, is sufficient to justify, upon the trial of an issne of fact joined in the action, proof of such facts as would bring the case within the signification of section 1861 of the Code. It may be fairly inferred from the allegations of the complaint that the temporary residence abroad of the testator was in the official character of United States consul, then and there discharging the duties of that office, and a residence in a foreign country for such a purpose would seem sufficiently to satisfy the requirements of the section-, although the official might also have a lawful residence and domicile within this State. It is not difficult to suppose that under the averment now under consideration a state of facts can be proved sufficient to uphold the probate of the will. And where the allegations of the complaint are sufficient to justify the introduction of such facts at a trial, it is not to be held bad upon the general demurrer interposed in this case.

The first subdivision of section 1861 provides, amongst other things, for a case where a will has been executed in such manner and under such circumstances that it might, under the laws of this State, be admitted to probate in the Surrogate’s Court, but the original will is in another State or country under such circumstances that it cannot be obtained for that purpose.

We are inclined to think that the averments of the complaint as matter of pleading, sufficiently show a case within this subdivision of the section. It is averred that the testator signed, published, declared and executed his will and codicil before a notary and in the presence of three witnesses who are named, and that he executed the codicil in like form, and the copies of the will and codicil annexed to the complaint, show a subscription of each of those instruments by the testator and the witnesses to his will and by the notary. The allegations are broad enough to admit proof at the trial of all other surrounding circumstances required by our statutes and hence it is not apparent to us why it may not be that the will is one which tfould be admitted to probate’in the Surrogate’s Court, if the circumstance that it cannot be obtained for that purpose- did not exist. Where such circumstance does exist, the Code expressly provides that the action may be maintained for the purpose of establishing the will. (Russell v. Hart, 13 N. Y. Weekly Digest, 309, January 6, 1882; Caulfield v. Sullivan, 85 N. Y., 153.)

Under this subdivision of the section the averment that the deceased was an inhabitant of and domiciled in this State, but was temporarily residing in Spain at the túne of the execution of his will and codicil, are sufficient even if they should be held to aver such a residence as would.exclude the' case from the operation of the second subdivision. ■

The judgment should therefore be affirmed, with costs, and with the usual leave to answer on payment of costs.

Brady and Ingalls, JJ., concurred.

Judgment affirmed, with costs, and with leave to answer over on payment of costs. .


author: Davis, P. J.:

text:
    In the Matter of the Petition of HANNAH McGOWAN and Others, as Heirs-at-Law and Legatees under the Last Will, etc., of THOMAS P. WALLACE, Deceased.

      Surrogate — power of, pending a contest as to the validity of a will, to direct payments to be made to legatees —• Code of Civil Procedure, sec. 2650.
    Section 2650 of the Code of Civil Procedure provides that, after the service upon an executor or administrator, with the will annexed, of a citation, requiring him to show cause why the probate of the will should not be revoked, he “ must suspend, until a decree is made upon the petition, all proceedings relating to the estate, except for the recovery or preservation of property, the collection and payment of debts, and such other acts as he is expressly allowed to perform, by am, oi'der of the surrogate, made upon notice to the petitioned'.”

      Held, that this section was intended to restrict the powers of the executor, and not to enlarge those of the surrogate, and that the latter could not thereunder make an order directing a portion of the estate to be paid over to and distributed among the legatees.
    Appeal from an order of tbe Surrogate’s Court directing a distribution of moneys to the petitioners.

      JET. W. Booksta/oer, for the contestant, appellant.

      Joseph H. Ghoate, for the petitioners, respondents.
   Davis, P. J.:

The testator, Thomas P. Wallace, died September 4, 1880. His will was admitted to probate and letters testamentary were issued thereon on the 14th of September, 1880. James Wallace, a brother-of the testator, filed allegations against the validity and due execution of the will and the mental capacity of the testator within one year after the probate. A citation was issued under the provisions of article 2 of chapter 18 of title 3 of the Code of Civil Procedure. The validity of the will was thereupon contested before the Surrogate, and finally, on the 31st of December, 1881, a decree was entered confirming the probate. From this decree, on the 10th of January, 1882, the contestant appealed to this court, where the appeal is now pending.

On the 30th day of March, 1882, the respondents, John F. Wallace, Hannah McGowan and Catherine O’Meara, presented to the surrogate a petition, praying the surrogate to make an order directing the executors to divide a sum of money on deposit in the New York Life Insurance and Trust Company into three equal portions or shares, and to pay to each of them one portion or share. The ground stated in the petition is that the petitioners “ are anxious to have an advance made to them on account of their respective interests in said estate.” The petition failed to show that any of the petitioners were poor or in need of .money, or that it was necessary for their support or education. The petition was opposed by the appellant by affidavit, denying some of the statements of the petition, and subsequently an order of reference was made to a referee to take testimony and proof of the facts and report his‘opinion thereon. Hpon the coming in of the report, the surrogate made an' order directing the executors to pay out of the estate the sum of $30,000 to Hannah McGowan, $25,000 to Catherine O’Meara and $30,000 to John F. Wallace.

It is very clear that the application in this case was not made under the provisions of section 2719 of the Code. That section relates to applications for the payment of legacies, although a year has not expired ” since letters were granted, and it authorizes such payment to be made only upon showing the condition of things thei’ein prescribed, and upon the filing of a bond approved by the surrogate, conditioned as therein directed. That section has very clearly nothing to do with the case before us. It is claimed, however, on the part of the respondents, that the surrogate had power to make the order under section 2650. That section is a part of the article relating to revocation of probate,” and is in these words:

“ After service upon him of a citation, issued as prescribed in the last three sections, the executor or administrator, with the will annexed, must suspend, until a decree is made upon the petition, all proceedings relating to the estate, except for the recovery or preservation of property, the collection and payment of debts, and such other acts as he is expressing allowed to perform, by an order of the surrogate made upon notice to the petitioner.”

The object of the section is to suspend the proceedings of the executor or administrator, which he might have taken if no application had been made to revoke the probate of the will, except for the recovery or preservation of property, the collection and payment of debts, and such other acts as he may be expressly állowed to perform by an order of the surrogate made upon notice to the petitioner. Its object is not to enlarge the powers of the surrogate,but to restrict and restrain those of the executor,' aud to provide that he shall perform none of the acts, pertaining to his office pending the contest, except those for the recovery and preservation of property and the collection and payment of debts, unless he be expressly allowed to perform them by an order of the surrogate made upon notice to the petitioner. We think it was not intended to confer power upon the surrogate by this section to allow the performance of acts by an executor which he could not have'performed as such exe,cutor, had there been no proceedings to revoke the probate of the will. It was decided in Le Bau v. Vanderbilt (3 Redf., 384, 414), that the surrogate had no power to grant any advance of a portion of a legacy even where the legatee was one of the n»3xt of kin, and entitled, if the will were set aside, to -a distributive share much larger than the legacy. It is not claimed that the executor in this case had power as such, at the time the citation was issued upon the petition to revoke probate, to makfe the payments which have been ordered. As no such official power existed, it was, of course, not suspended by section 2650, and as that section, in our view, simply authoi’izes the surrogate to allow the performance of acts suspended by the service of the citation, it has no application to the case.

If the construction claimed for the section by the respondents be the true one, it confers power upon the surrogate to authorize the distribution of the whole of an estate to legatees under the will pending a contest over the probate of the will. Such a power would be extremely dangerous, and might be the subject of great abuses.

We are confirmed in our view of the section by the fact that other sections of the Code have made provisions for complete or partial distribution of an estate among legatees, which are to some extent, at least, conflicting with those claimed for section 2650. Section 2717 provides for proceedings by a legatee to compel, by an order of the Surrogate’s Court, the payment of a legacy at any time after one year has expired since letters were granted. Section 2718 distinctly specifies how such petition maybe met and answered, and prescribes what must appear before such a decree can be made. Section 2719 provides, as has already been stated, for the case of an application before the expiration of a year, and specifies what must be shown and done to entitle the applicant to an order in his favor. Those are all the statutory provisions for proceedings of this character, and they strongly argue that no arbitrary and unrestrained power was intended to be conferred on the surrogate by section 2650.

Again, it may be said that the provisions of section 2650 ceased to operate when the suspension provided for by that section terminated. That suspension terminated by the entry of a final decree of the surrogate confirming the probate of the will, which was on the 31st of December, 1881. The appeal was not taken until the 10th of January, 1882. We may assume that the appeal was taken in such form as to operate as a stay of proceedings upon the.decree appealed from. If that be the case, the proceedings of the executor are not now suspended by the effect of section 2650, but fly the appeal still pending in this court. If these proceedings had been taken under sections 2717 and 2718, upon proper showing of the facts requisite under those sections, it might be that the surrogate would have power to make an order similar to that now appealed from. But it is obvious that this proceeding was not taken under those sections, and that the question determined by the order below has been simply that of power under section 2650.

We are of opinion that the learned surrogate erred in that respect, and for that reason we think the order should be reversed, but under the circumstances, without costs and without prejudice to any proceedings- that the respondents may be advised to take under sections 2717 and 2718, the construction of which, however, is not now under advisement.

Brady and Daniels, JJ., concurred.

Order reversed, without costs.


text:
    STEPHEN O’BRIEN, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Waiverwhat 'acts of an officer amount to a consent to a change of duty or sala/ry— Judgment — extent of the estoppel created by it— Several causes of action arising out of a single contract cannot be. made the subject of separate actions.

    On June 80, 1875, the plaintiff was appointed an engineer in the fire department of New York, at a salary of $1,500 per annum, and served in that capacity untilOctober 6, 1875, when an order was made by the board of fire examiners relieving him from duty as engineer and appointing him a machinist in the repair shops, at a salary of three dollars per day. The plaintiff worked in the machine shops from October seventh to and including June 6, 1877, received his monthly pay at the rate of three dollars a day, and signed receipts therefor in full payment for his services.

      Held, that the conduct and acts of the plaintiff had the force and effect of a consent to vacate the position of engineer and accept that of machinist, and that he could not thereafter claim that he had been wrongfully removed from his position as engineer, and recover the difference between the salaries of the two offices.
    The plaintiff was finally discharged from the department in June, 1877. Thereafter he brought an action and recovered therein a judgment of $1,200 against the city, upon the ground that from June, 1877, to January, 1880, he had repeatedly offered to perform the duties of an engineer, but was not allowed' to do so, and that he was thereby thrown out of employment and_ damaged.

      Held, that this judgment did not estop the defendant from denying that the plaintiff was entitled to recover the salary of an engineer, during the time for which it was sought to be recovered in this action, brought to recover the difference between his salary as an engineer and his pay as a machinist from October 7, 1875, to June 6, 1877.
    That if it did establish that the plaintiff was an engineer during that time, it was a bar to this action, as the plaintiff’s claim was an indivisible one and could not be made the subject of separate actions.

      Appeal from a judgment in favor of' the plaintiff, entered upon a verdict directed by the court.

      D. J. Dean, for the appellant.

      C. P. Miller, for the respondent.
   Davis, P. J.:

On the 30th of June, 1875, the plaintiff was appointed an engineer of the fire department at a salary of $1,500 per annum, his appointment to take effect on the 1st day of July, 1875. He served in that capacity, and received his salary therefor, until the 6th of October, 1875, at which time an order was made by the board of fire commissioners in the following words:

“ Stephen O’Brien is hereby relieved from duty as engineer and appointed a machinist in the repair shops, at a salary of three dollars per day, to take effect at 8 a. m. on the 7th inst.”

On the 7th of October, 1875, the plaintiff entered upon his dúties as machinist in the repair shops under his appointment to that position, and continued to perform the duties of machinist up to and including June 6,1877, and received his monthly pay therefor as such machinist at three dollars per day, and gave to the comptroller the receipts contained in the monthly pay-rolls in full payment of such services. During that time he performed no services as engineer. He now brings this action to recover the difference between the salary of an engineer at $1,500 a year, and the pay which he received as a machinist at three dollars a day for the period named, to wit, from the 7th of October, 1875, to the 6tb of June, 1877. A verdict for that difference was directed by the court below in his favor.

We are of opinion that upon this state of facts the plaintiff was not entitled to recover. Whatever might have been his rights if he had refused to accept and enter upon the duties of machinist, and insisted that he could not be assigned to such duties or displaced from his position as engineer without removal for cause, after notice and an opportunity to be heard, very different rights arose when he voluntarily accepted the new appointment and entered upon its duties, and received from month to month during the whole period covered by its complaint, the compensation fixed by the order appointing him. The duties of the respective positions were wholly incompatible. lie could not perform both, and there is no pretense that he did. There is no ground for claim or pretense that there was any undertaking that he should be paid the salary of engineer while performing the duties of machinist. For the order appointing him fixed the compensation for the latter, and his monthly receipts given during the entire period in full payment for his services, plainly show that he knew for what service he was being paid, and the compensation affixed to it.

Precisely the same question involved in this case was presented to the General Term of the Superior Court in the case of Patrick Reilly v. The Mayor, in which it was held, in an elaborate opinion pronounced by Sedgwick, C. J., that there could be no recovery for the salary ,as engineer. We fully concur in the views expressed by that court.

The conduct of the plaintiff in accepting the appointment of machinist, entering upon its duties, and continuing to perform them during the whole period for which he now claims the salary of engineer, and receipting for his pay in full from month to month at the rates specified in the appointment, necessarily has the force and effect of a consent to vacate the position of engineer and accept that of machinist at a different and smaller compensation. What his reasons were do not appear and are not material. It is apparent that the duties were essentially different, the one being those of ordinary day labor in the repair shops, and in the other being those of constant readiness and attention, both night and day, to the arduous and exposed duty of an engineer in charge of one of the engines of the department.

The question whether or not the plaintiff was removed, in i/nvitum, by proper proceedings, from his office is not involved in the case. Fie had power without such proceedings to surrender the office or abandon or consent to give it up for another and less arduous position at a lower rate of pay, if he chose to do so. His action is equivalent to a voluntary surrender of the place and acceptance of another to which he probably thought himself better adapted. It is altogether too late, after performing the duties of the latter for many months, without attempting or offering to perform the duties of the former, to assert a claim for compensation for services which he did not render.

But the plaintiff relied in this case upon a judgment recovered by him in a former suit against the city, which he insists estopped the city from denying that he held and was entitled to the office of engineer during the period covered by his present claim. That action was based upon the claim that the plaintiff was prevented from performing, from and after the 6th day of June, 1877, the duties of engineer, and that he had repeatedly offered to perform those duties and was not allowed to do so by the commissioners, and that he was out of employment by reason of their refusal to allow him to perform those duties until January 1, 1880. It would appear from the pleadings and judgment-roll in that case that the plaintiff was wholly discharged from the fine department on the 6th day of June, 1877. In that action he recovered a verdict against the city for the sum of $1,200, and he now insists that the mayor is estopped from denying that he was not also an engineer during the period for which he now sues and while he was performing the duties of machinist in the repair shops.- We do not think the judgment is entitled to any such effect. But if it be, and it does establish that the plaintiff was an engineer during the whole period antecedent to his discharge, the effect is to establish a bar to any recovery in this action. In that view, his claim for compensation as engineer was an indivisible one and could not be chopped into several causes of action for the purpose of maintaining separate suits.

The rule is fully established that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of -the first may be pleaded in abatement of the other, and a judgment upon the merits in either will be available as a bar in the other suits.” (Secor v. Sturgis, 16 N. Y. Rep., 554; Farrington v. Payne, 15 Johns., 432; Smith v. Jones, 15 id., 229; Phillips v. Berick, 16 id., 137; Miller v. Covert, 1 Wend., 487; Guernsey v. Carver, 8 id., 492; Stevens v. Lockwood, 13 id., 644; Colvin, v. Corwin, 15 id., 557; Bendernagle v. Cocks, 19 id., 207.)

If at the time of bringing the former action the plaintiff had several causes of action arising out of the same contract, it was his duty to have joined them in one suit, and his failure to do so is, after Ms recovery iá an action for a subsequently accruing portion of the demand, by well settled authority a complete bar to a second suit for the portion of his demand previously accruing. (Jex v. Jacob, 19 Hun, 105; Baird v. U. S., 96 U. S. [6 Otto], 432; O'Beirne v. Lloyd, 43 N. Y., 249.)

It was error therefore to direct a verdict for the plaintiff.

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

Daniels, J., concurred.

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

Judgment reversed, new trial ordered, costs to abide event.


text:
    MARGARET A. DICKINSON, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Statute of limitations — when, an action for a personal injury is founded on negligence— Code of Oidl Procediere, secs. 382, 383, 410 —1873, chap. 335, sec. 105 — when the statute begins to run on a claim, against the city.

    Tlie plaintiff brought this action against the city of New York to recover the damages sustained by reason of her slipping and falling upon ice or snow, negligently, carelessly and wrongfully suffered to be and remain upon a cross-walk in the city, by the defendant.

      Held, that the action was to recover damages “fora personal injury resulting from negligence ” within the meaning of section 383 of the Code of Civil Procedure, and must be brought within three years after the cause of action accrued.
    Section 105 of chapter 335 of 1873, provides that “no action shall be maintained against the mayor, aldermen and commonalty of the city of New York, unless the claim on which the action is brought has been presented to the comptroller, and he has neglected for thirty days after such presentation to pay the same.” Section 410 of the Code of Civil Procedure provides that where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete.

      Held, that the statute of limitations began to run upon a claim against the city thirty days from the time when the demand might reasonably have been made to the comptroller.

      Appeal from a judgment in favor of plaintiff, entered on an order sustaining a demurrer to one of the defenses set up in the answer of the defendants.

      D. J. Deem, for the appellants.

      O. A. E. Bartlett, for the respondent.
   Davis, P. J.:

The complaint in this case, among other things, alleges that the Eighth avenue in the city of New York is a public thoroughfare, and that it was and is the duty of the defendants to keep and maintain the streets and avenues of said city, including the said Eighth avenue, in good order and repair, and not to suffer ice or snow to be or remain in such rough and uneven condition on the cross-walks thereof as to be unsafe and dangerous to foot passengers, and that the defendants improperly, carelessly, negligently and unlawfully suffered ice or snow to be and remain upon the cross-walk on the east side of Eighth avenue, at the intersection of Eighteenth street, in the 'city of New York, in such a rough and uneven condition that a person could not walk over it without danger of falling down; and that by reason thereof the plaintiff, on or about the 10th day of January, 1877, while lawfully passing over and upon said cross-walk, and without any fault on her part, was suddenly precipitated, cast and thrown upon the, ground, thereby fracturing her left thigh or hip.

It then alleges the damages suffered by her, for which she claims to recover $15,000, and that on the 28th day of April, 1881, the, plaintiff presented the claim on which this action is brought, in writing, to the comptroller of the city of New York, and demanded payment thereof, but that he has neglected, for thirty days after such presentation, to pay the same.

To this alleged cause of action the defendants, for their fourth answer, allege that more than three years have elapsed since the cause of action set forth in the complaint accrued, and that the right of the plaintiff to make the demand necessary to entitle her to maintain an action therefor, was complete more than three years before the commencement of this suit.

To this answer the plaintiff demurred. ' Two questions are pre-. sented by this demurrer, first, whether the cause of action set up in the complaint is subject to the provisions of section 382 of the Code of Civil Procedure, or to those of section 383. . Section 382 provides, among' other things, that an action to recover damages for an injury to property or a personal injury” must be commenced within six years after the cause of action has accrued, except in a case where a different period is expressly prescribed ” in chapter 4 of the Code. Section 383 provides that an action to recover damages for a personal injury resulting from negligence ” must be commenced within three years after the cause of action has accrued.

The action set out in the complaint is undoubtedly one for personal injury, and the question to be determined is whether such injury is alleged by the complaint to have resulted from the negligence of the defendant, or from some wrongful act of the defendant independently of the question of negligence. A clear distinction between these cause's of action is established by the authorities. (Irvine v. Wood, 51 N. Y., 228; Muller v. McKesson, 73 id., 204; Clifford v. Dam, 81 id., 56; Sexton v. Zett, 44 id., 431; Greed v. Hartmann, 29 id., 591; Congreve v. Smith, 18 id., 82.)

In all of these cases the cause of action arose from some wrongful act of the defendant which resulted in an injury to the plaintiff, independently of any question of negligence on the part of the defendant. They establish that it is not necessary, where a person unlawfully places an obstruction upon a public highway, by .which another is injured, to prove that the wrongful act was negligently done. It is enough that it was done without lawful authority, or is wrongful in itself and has produced the injury complained of. But a quite different rule prevails where the injury arises from an omission to perform a lawful act. or duty, or from the negligent manner in which such an act or duty is performed. In that case, the negligence of the defendant is the gist of the action and must be affirmatively established, and the contributory negligence of the plaintiff constitutes a defense. The cause alleged in the complaint falls within this latter rule, because the city, in constructing and maintaining the cross-walk on which the plaintiff was injured, performed merely a lawful act and duty.

It is not alleged that' the city authorities placed the ice pr snow upon tbe cross-walk, by means of which the plaintiff was injured. On the contrary, the snow or ice was deposited or formed upon the cross-walk by causes .beyond the control of the defendant, and the allegations of the complaint only tend to show that the defendant neglected to perform, in due season and in proper manner, a duty, by removing the ice and snow from the walk. The negligence was wrongful, but only in the sense that all neglect of duty is wrongful, and if any injury was caused by such neglect of duty, it was the result of negligence, and not of a wrongful act within the meaning of the law as established by the authorities above cited. Hence, there seems to be no doubt that the action set out in the complaint in this case was one to recover “ damages for a personal injury resulting from negligence.” It is subject, therefore, to the provisions of section 383 of the Code, and the action must be commenced within three years after the cause of action has accrued.

The second question is as to the effect of section 105 of chapter 335 of the Laws' of 1873, in connection with section 410 of the Code of Civil Procedure. It is conceded that the provision of the charter above referred to is still in force. That provision enacts that no action shall be maintained against, the mayor, aldermen and commonalty of the city of New York, unless the claim on which the action is brought has been presented to the comptroller, and he has neglected, for thirty days after such presentment, to pay the same.”

The claim in this case is alleged to have been presented to the comptroller on the 28th of April, 1881, and it is alleged that the comptroller neglected to pay the same for thirty days before the action was commenced. It has been held in various cases that where the action is brought under this provision of the charter, the statute of limitations does not begin to run until the thirty days after such presentment have expired. (Fisher v. Mayor, 57 N. Y., 344; Taylor v. Mayor, 67 id., 87; Van Wart v. Mayor, 52 How., 78.)

The fact, therefore, that the demand was not presented until 1881 would be a complete answer to the alleged defense, were it not for the provisions of section 410 of the Code of Civil Procedure, which enacts that where a right exists, but a demand is necessary to entitle the person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete. We'think this provision is applicable to the case at bar. If it were not so, there would be no limitation in cases against the city, except at the option of the plaintiff, who could delay making his demand for an indefinite period of time, and so keep his cause of action alive until the death of witnesses'or any other change of circumstances rendered a defense difficult or impossible. There are special reasons why demands of this character against the city should be required to be presented promptly and without unreasonable delay, because the city necessarily acts through official agents and servants, who are frequently changed.

We have no doubt that by section 410 the legislature intended to provide for such cases, and to prevent advantages from being taken of public authorities by long delays in making demands, which might otherwise ensue. The demand in this case, therefore, ought to have been made and the action brought within three years in order to maintain the action. The answer set up a good defense, and the demurrer should have been overruled.

' The judgment must -be reversed, and judgment ordered on the demurrer, with leave to amend upon the usual terms.

Brady and Daniels, JJ-., concurred.

Judgment reversed; judgment ordered on demurrer; leave to amend on usual terms.


text:
    JAMES H. MONROE, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.

      New York fire department — power of the commissioners to alter the duties and salary of an employe — what acts show his acquiescence in the change — the city is relieved from liability if it pays the actual incumbent — 1873, chap. 335, see. 28.
    May 20, 1873, the plaintiff was appointed chief of battalion of the fire department of New York, and performed the duties of and received the salary attached to that office until February 15, 1875, when he was reduced to the rank of foreman, another member of the department being appointed chief in his place. The plaintiff performed the duties of a foreman, received the salary attached to that office and gave receipts in full therefor to the comptroller. In an action to recover the difference between the salary of chief of battalion and that of foreman:

      Reid, that section 28 of chapter 835 of 1873, providing that the number and duties of the subordinates in every department, with their respective salaries, should be such as the heads of the respective departments should designate and approve, was broad enough to authorize the commissioners to fix and alter the duties and salary of the plaintiff, provided it was done in good faith and not for the purpose of evading any statutory restriction upon the removal of members of the department.
    That even if this were not so, yet the acts of the plaintiff in accepting the inferior position and discharging 'its duties and receiving the salary, were equivalent to a resignation of the one place and the acceptance of the other.
    That in any event the city was not liable to the plaintiff as it had already paid the salary to another incumbent who had actually performed the duties of the office.
    Motion for judgment upon a verdict for tbe defendant, directed by. the court at circuit, subject to the opinion of the General Term.

      D. A. Levien, Jr., for the plaintiff.

      D. J. Dean, for the defendants.
   Davis, P. J.:

The plaintiff in this action being a member of the uniformed force of the fire department, was on the 20th of May, 1873, promoted to the post of chief of battalion, and so long as he performed the duties of that office he was paid the salary fixed by the board of fire commissioners. On the 15th of February, 1875, by order of the board, the plaintiff was reduced to the rank of foreman and assigned to take command of Hook and Ladder Company No. 9 ; and his position of chief of battalion was assigned to chief of battalion Rowe of the third battalion. Rowe’s position being filled by chief of battalion King, and King’s by the promotion of another foreman. At the time fixed in the order of the board, -the plaintiff entered upon his duties as foreman of the hook and ladder company mentioned, the salary of which was fixed at $1,500 a year, and he continued afterwards to perform the duties of foreman during the whole period for which he brings this action, except on a few occasions on which he was assigned by express direction for periods of a few days each to take charge of and perform in another part of the city temporarily, the duties of a chief of battalion. He brings this suit to recover the difference between $1,500 a year, the salary for foreman, and $2,500 a year, the salary of chief of battalion, for the period during which he performed the duties of foreman. Payments to him had been made monthly during this period, and he had signed monthly receipts for his compensation as foreman, for his services in full.

The plaintiff was not removed from his position as a member of the fire department.. He was simply transferred from one post to another. The first question that arises is as to the power of the department to make such transfer.

By section 28 of the charter of 1873 (chap. 335) it is provided, that the number and duties of the subordinates in every department, with their respective salaries, shall be such as the heads of the respective departments shall designate and approve.

This section is broad enough to confer power upon the commissioners to fix and alter at pleasure the salary of any employe of the department, and we see no reason why this cannot be lawfully done, provided it be done in good faith and not for the purpose of evading any statutory restriction upon the removal of members of the department. The plaintiff, when designated to discharge the duties of chief of battalion was entitled to' the compensation or salary of that position so long as he performed those duties under this designation, but when designated to perform the duties of foreman of a single company, he was entitled, if lie accepted that position, to the compensation of that position only. The action of the board- in-making these designations was not in our judgment a removal within the meaning of the provision which required such removal to be upon charges, notice and opportunity to be heard. Upon this ground alone we should be of opinion that the plaintiff could not recover.

But, assuming that he could not be removed from the position of chief of battalion, except upon charges, notice and hearing, still his acceptance of the inferior position and his performance of its duties, ^jvithout any objection or claim to be entitled to perform the duties and receive the pay of chief of battalion, must be deemed an acquiescence in the change equivalent to a resignation of the one place and an acceptance of the other. The duties of the office of foreman were incompatible with those assigned to a chief of battalion. The plaintiff could not and did not perform both, and there is no legal or moral right on his part, while performing the duties of foreman, to claim compensation for other duties which he did not perform. His action is equivalent to an express assent to the change made by the board, both in his position and in his compensation, and( in the absence of protest or dissent, or of any claim, there is no ground left in our judgment to uphold a suit for the salary of an office which he did not hold and the duties of which he did not perform while receiving pay for several years for inferior and less arduous duties.

Besides, the case shows that the position of chief of battalion which he held was held by another incumbent, who performed its duties and received its salary doubtless with the knowledge of the plaintiff. That fact is a sufficient answer to his claim. (McVeany v. Mayor, 80 N. Y., 185; Dolan v. Mayor, 68 id., 274.) The city was not bound to pay two salaries for one office, and it had the right to pay the actual incumbent who performed its duties, without being subject to another person, who neither performed the duties nor asserted any claim to the compensation for several years.

Judgment should be ordered on verdict, with costs.

Beady and Daniels, JJ., concurred.

Judgment ordered on verdict, with costs.


author: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE AMERICAN FIRE INSURANCE COMPANY v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, Respondents.

      Insurance company — issue of scrip to its policyholders — when the fund represented by it forms part of its taxable property.

    A fire insurance company, in pursuance of the provisions of its charter, issued to its policyholders, from its annual net profits, scrip which hore interest not exceeding six per cent annually. The fund represented by the scrip was contingently liable for future liens and expenses of the company. When the fund exceeded a specified sum, one-fialf of its annual increase was to be applied towards redeeming the scrip, commencing at tile earliest in date.

      Held, tfiat so long as the company retained in its possession the fund represented by the scrip, such fund was properly included in the assessment of its property by the commissioners of taxes and assessments.
    Certiorari to review the action of the commissioners, by which they included in the assessment books and rolls for the year 1882 certain moneys held by the relator.

      Qhcurles E. Miller, for the relator.

      George P. Andrews, for the respondents.
   Brady, J.:

The relator is a fire insurance company, incorporated under the general act for the incorporation of fire insurance companies, passed in June, 1853, and doing business in the city of New York.

In arriving at the amount of its taxable property, the commissioners took into consideration the sum of $302,965, which the relator claimed should have been excluded, because of the issuance to the policyholders of the company of certain certificates called scrip; and which they claimed was not liable to taxation, because the fund was held by the company for the payment of the certificates of scrip mentioned, and issued by them to policyholders in pursuance of the contracts under which policies were issued. This scrip was issued to pay premiums, under section 25 of the charter of the company, which declares that the board of directors may, at any time thereafter, by a vote of two-thirds thereof, and with- the assent of two-thirds in amount of the stockholders, give to the holders of the policies of the company the right to participate in its profits, and to such extent, in such manner and upon such terms as shall be prescribed in and by such vote and assent. And it was provided in due form that seven per cent of the capital stock and the undivided surplus should be set apart for the stockholders. The balance of interest for the year from loans and investments and discounts on losses paid before maturity, and the amount of premiums earned during the year, were to be ascertained, and the sum of these to be considered the gross receipts. The expenses were then to be deducted, and the balance was to be regarded as the net profits of the year. It was further provided that one-fourth of the net profits, when ascertained, should be set apai’t for the stockholders, in cash, and the remaining three-fourtlis set apart as a reserve fund, of which an amount not exceeding fifty per cent of the premiums earned on participating policies, was to be divided among the holdei’s of such policies in scrip, which should bear interest not exceeding six per cent annually. The reserved fund not divided to policyholder's, it was further provided, should be first liable, to its entire extent, for all losses and expenses in any year exceeding the gross receipts, and such reserved funds being exhausted the fund represented by the scrip should then be liable, to its entire extent, for all such losses and expenses, each later annual issue of sci’ip or stock to be first reduced or wholly canceled before any previous annual issue was induced, and all the annual issues were to be canceled before the surplus or capital of the company, or any portion thereof, should be applicable to such losses. The board of directors were authorized to apply the fund and cancel the scrip for the purposes and in the succession mentioned, as the exigencies of the company might require. It was also provided that when the 'fund represented by the scrip should exceed $500,000, the directors were not to apply less than one-half of the annual increase of the fund towards the redemption of the scrip, commencing at the earliest in date.

It will have been observed from what has been said that although there was authority for the issuance of the scrip, which refers to a division of profits, yet such profits were not actually divided by the issuance of the scrip, and were to be retained by the company and, in certain contingencies, to be used to pay its losses; and that being so, it seems to be very clear that the scrip is nothing more than a promise to pay, in a certain contingency, a fixed sum of money to the holder, with interest. If the reserved fund, for example, be exhausted in the payment of losses and expenses, and resort must be had to the fund set apart for the stockholders, then the board of directors is to apply it and cancel the scrip, if necessary, for the purposes and in the succession mentioned. So that the fund which is represented by the scrip is held subject to the necessities which may require its use for purposes other than the payment of the scrip in reference to which it was issued.

The question involved in this case is, therefore, one which has already been decided by the Court of Appeals and advei'sely to the claim of the relator. (The People ex rel. The Williamsburg GasLight Company v. The Board of Assessors of the City of Brooklyn, 76 N. Y., 202.) In that case it appeared that the company having-accumulated the profits and reserve fund, issued certificates to its stockholders to the amount of $1,000,000, which were similar in form to the scrip issued in this case. The assessors refused to make a deduction on account of such certificates, and the company reviewed their action by certiorari. Fol&ek, J., in delivering the opinion of the court, said, in the course of his opinion: “It is claimed that the legal effect of the issuing of the certificates, was to divide the profits among the stockholders, and that they ceased to be surplus profits. A promise to divide is not a dividing; more than, a promise to pay is a payment. If profits existed they remained with the company until they were actually handed over to the stockholders proportionately. That has not yet taken place. At most there is an obligation existing to do it at some indefinite time.”

"We are unable to distinguish the difference in principle between these two cases. "We think, therefore, the action of the commissioners should be affirmed. Ordered accordingly, with costs.

Daniels, J., concurred.

Present — Beady, P. J., and Daniels, J.

Proceedings affirmed, with costs.


text:
    GEORGE W. SHAFFER, Respondent, v. FERDINAND HOLM, Appellant.

      Actionf'or m'iminal conversation — when the plaintiff should be required to furnish a Mil of pm'ticula/i'S.

    The complaint in this action for criminal conversation alleged, upon information and belief, that on or about the 10th day of December, 1878, and in the fall of 1879, and in every month in the year 1880, and up to and including the 18th day of May, 1881, and at divers other times since the 10th of December, 1878, the defendant debauched and carnally knew the plaintiff’s wife. The complaint was verified and the summons was dated May 23, 1881. On June 18, 1881, the defendant’s attorney demanded a written, verified statement of the particular times and places at which the acts of adultery were alleged to have been committed. May 26, 1882, he moved for an order requiring the plaintiff to furnish such a bill of particulars, upon an affidavit stating that he had no knowledge of the times and places at which the plaintiff expected to prove that the acts had been committed. The plaintiff filed an affidavit' stating that he had no personal knowledge of the matters stated in the complaint on information and belief, and that he was advised by his counsel and verily believed that it would not be safe for him to give the verified statement demanded until the defendant had been examined as a witness before the trial.

      Held, that the defendant’s motion for a bill of particulars should be granted.
    Appeal from an order made at a Special Term, denying a motion to require the plaintiff to furnish a bill of particulars.

      Isaac W. Mills, for the appellant.

      Jacob Fromme, for the respondent.
   Brady, J.:

This is an action for criminal conversation. The complaint .sets forth, on information and belief, that on or about the 10th of December, 1878, and in the fall of 1879, and in every month in the year 1880, and up to and including the 18th of May, 1881, and at divers other times since the 10th of December, 1878, the defendant debauched and carnally knew Catharine, the wife of the plaintiff.. The complaint was sworn to on the 23d of May,. 1881, and the summons bears the same date. On the eighteenth of June following, the defendant’s attorney demanded a verified statement in writing of the particular times. and places at which the plaintiff expected or intended to prove that any of the acts of adultery or criminal intercourse took place between the defendant and the wife of the plaintiff, and that service thereof be made at his office in Mount Yernon, Westchester county, New York. The demand was addressed to the plaintiff’s attorney.

Nothing further seems to have been done on the subject to which the. demand related until the 26th of May, 1882, when a motion was inaugurated to procure the bill of particulars demanded, and which was founded in part upon an affidavit of the defendant in which he stated that he had no knowledge whatever of the times and places at which the plaintiff expected or intended to prove upon the trial that he had committed adultery with the plaintiff’s wife, and without some knowledge upon this point he did not and could not know what witnesses he should subpoena to prove his whereabouts and conduct at such times, and that without such knowledge he would he forced to enter upon the trial of the action without the benefit of the testimony of important and material witnesses, and that he could not safely proceed to trial without a verified statement in writing from the plaintiff of the times and places at which the plaintiff expected or intended to prove the acts of criminal intercourse alleged to have taken place between himself and the plaintiff’s wife, as he was advised by counsel and verily believed.

Upon this application the plaintiff’s affidavit appears to have been read, in which he stated that he knew nothing of his own knowledge of the matters contained in the complaint which were set out, therein, with the exception of those matters which were not set out on information and belief; and he stated further that he was advised hy his counsel and verily believed that it would not be safe for him to give the verified statement demanded until the defendant was examined as an adverse party before the trial. The result of this application was an order denying it, but no opinion was expressed by the learned justice in disposing of the motion.

The respondent insists that the defendant was guilty of laches in allowing a year 'to elapse, and in. waiting until the action was about to be reached on the day calendar, before he made the application ; and further, that the wrongf ul acts charged were particularly within the knowledge of the defendant, who knows the places at which he and the wife of the plaintiff were at the various times charged in the complaint. But neither of these were sufficient to require the Special Term to deny the motion. In the case of Tilton v. Beecher (59 N. Y., 176), and which was an action of a similar character to the one in hand, it was decided that a bill of particulars in an action for criminal conversation might be exacted, and the direction to furnish it was a proper exercise of judicial power.

In Jones v. Platt (60 How., 278), which was an action for slander, the complaint alleges that on certain days the defendant, in the town of Westerlo and elsewhere, and at divers and various other times and places, uttered slanderous words. • The defendant, after issue was joined, applied for a bill of particulars specifying tbe times and places where. The motion was granted.

In Stiebeling v. Lockhaus (21 Hun, 457), which was also an action for slander, the importance of apprising the defendant with great particularity of the matters for which he was to be put on trial was recognized.

In the case of Winchell v. Martin (14 N. Y. Weekly Dig., 458), which was also an action for criminal conversation, the complaint alleged that, in the month of August, 1869, and at divers other times previous thereto and during such marriage, whilst the plaintiff and his wife were living together as man and wife, the defendant wrongfully and carnally knew the wife. It appeared that in January, 1870, although the issue was joined in September, 1869, the plaintiff noticed the cause for trial, and some-time afterwards application was made for. a bill of particulars, which was denied by the learned justice at Special Term on the ground of the defendant’s laches in making it. An appeal was taken to the General Term of this department and the order was reversed. The court, in its opinion, said : “We are unable to discover any good and satisfactory reason for refusing a bill of particulars in this cause because of delay on defendant’s part, such delay having no way embarrassed the plaintiff, as we can see, and he can as readily comply with the demand now as at any time since the action was commenced.” And upon the merits the court said the defendant made a fair case for the allowance of the order, and while the determination of these applications rests somewhat in the discretion of the court, yet it is almost a matter of course to grant the demand in actions of this nature, where the complaint omits to allege time and place with particularity, as it failed to., do in this instance. And the court further said the propriety and justice of requiring the plaintiff to supply the information sought by the defendant’s motion was stated and fully commented upon in Wood v. Wood (2 Paige, 108); Tilton v. Beecher (59 N. Y., 176); Stiebeling v. Lockhaus (21 Hun, 457).

In this case it will have appeared that the charge made against the defendant in the complaint is without reference to place. The criminal conversation is alleged to have occurred at certain dates and between certain dates, but the .place of its occurrence is not named, neither town, city or county, and this would seem to be a strong reason why the particulars asked for should be given. 'It does not appear that the plaintiff is unable to give them. On the contrary, it is quite clear that he has the ability to give the required information, because in his affidavit in answer to the application for a direction to furnish the bill, he said that he was advised by his counsel, and verily believed, that it would be unsafe, for him to give the verified statement, as already suggested. The case of Winchell v. Martin, (supra) is conclusive of the right of the defendant in this case to have the particulars sought, inasmuch as it bears upon the question of laches, as well as the merits of-the application made herein.

If it were necessary to sustain the power-and propriety of ordering a bill of particulars in this case, the other decisions might be cited; but the adjudications mentioned are quite sufficient, and it is unnecessary to pursue the subject further.

In conclusion, however, it is proper to say on the question of laches, that, although no proceeding to compel the delivery of the bill of particulars was commenced until May, 1882, yet the demand for one was made soon after the action was commenced, as already suggested, viz., upon the 18th of June, 1881, and with which the plaintiff never complied. It must be said that the defendant was diligent in making the demand, and the-question of laches cannot now be successfully urged against him. It was the duty of the plaintiff to have complied with that demand, and not to have driven the defendant to compulsory measures.

For these .reasons the order appealed from should be reversed, the motion granted, and the plaintiff directed to furnish a bill of particulars of the times and places where the criminal conversation took place, within twenty days after service of a copy of the order to be entered herein. Ten dollars costs and disbursements of this appeal allowed to the appellant.

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

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


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    SPENCER ERVIN and Others, Appellants, v. THE OREGON RAILWAY AND NAVIGATION COMPANY and Others, Respondents.

      Pos'eign corporation — when it may be sued here by a non-resident — Code of Civil Procedure, sec. 1780 — Supplemental complaint by the assignee of one incompetent to sue — lease to file it will be denied.

    Since the adoption of section 1780 of the Code of Civil Procedure, a foreign corporation can only be sued by a non-resident in one of the cases mentioned therein.
    In an action brought against a foreign corporation upon a cause of action not arising-within this State, the complaint was dismissed as to all the non-resident plaintiffs and continued as to the others. Subsequently all the non-resident-plaintiffs and other stockholders of the corporation assigned the greater part of their stock to one Fahnestock, a resident of this State, to enable him to enforce for their benefit the rights incident thereto. Thereafter the plaintiffs applied for leave to file a supplemental complaint and make Fahnestock a party plaintiff.

      Held, that the application was properly denied; that the assignment could not have the retroactive effect of creating the right to enforce a cause of action which did not exist in favor of the assignors when the suit was commenced by them.
    Appeal from-an order made at a Special Term, denying a motion for leave to file a supplemental complaint bringing in a new party plaintiff.

      Thomas II. Hubbard, for the appellants.

      Artemus II. Holmes, for the respondentss.
   Brady, J.:

This action was commenced in May, 1880, by certain stockholders of the Oregon Steam Navigation Company for themselves and on behalf of other stockholders similarly situate. The object of the action was to compel the Oregon Railway and Navigation Company, which has its offices and conducts its financial business in New York city, to account to the plaintiffs on some just basis for their property, which it has taken and refuses to pay for. That company, it is claimed, was organized by a clique of individuals who proceeded to get control of more than four-fifths of the stock of the Oregon Steam Navigation Company and to absorb its assets, and, to use tbe language of the appellants’- counsel, to freeze out the minority stockholders who did not belong to their circle; to accomplish which the clique made themselves and their friends officers of the company, made the new company take their stock in the old company at rates equivalent, it is said, to upwards of one hundred and sixty cents for the dollar, which was probably not far from its intrinsic value, and then went through the form of selling out all the assets of the old company to the new one — in other words, of selling to themselves — at a price wüich would make the old stock worth forty-six cents on the dollar; and they thereupon offered the minority stockholders forty-six cents on the dollar on condition of the surrender of their stock certificates, and announced that no transfers of stock would thereafter be made on the books of the company. The minority stockholders, whose property was thus in •effect confiscated, as claimed, lived in different States remote from Oregon, where the commercial operations of the two companies were conducted.

The issues presented by the pleadings, as claimed on behalf of the defendants, involved the complete history of the transactions between the two corporations relating to the internal management of their affairs, the plaintiff seeking to have declared void the sale by the Oregon Steam and Navigation Company, acting by its board of directors and a large majority of its stockholders, of all its property and franchises to the Oregon Railway and Navigation Company.

The trial of the action was begun in October, 1881, at the Special Term of this court. Upon the plaintiff’s opening and the pleadings, the defendant moved to dismiss the complaint on the ground that the defendant was a foreign corporation, and that all the plaintiffs, save one, were non-residents of the State of New York, and that the resident plaintiff was not a stockholder who was registered as such on the books of the Oregon Steam Navigation Company. The motion was granted as to all the- non-resident plaintiffs only. The learned justice presiding in the court below, in delivering his Opinion, said, in respect to the non-resident plaintiffs: “ The complaint must be dismissed for the reason that as to them the complaint does not make out a cause of action which brings this action within the provisions of either of the subdivisions of section J 780 of the Code of Civil Procedure.” In this view the learned justice did not err, for whatever may have been the power of a court of equity heretofore, in cases of fraud and breaches of trust or coiitracts, wherever the person of the defendant might be found, although property beyond the jurisdiction of the court might be affected by the judgment to be rendered, in reference to an action by a non-resident against a foreign corporation, the Code has limited the jurisdiction of the courts, by the section mentioned, to cases only where the action is brought to recover damages for the. breach of a contract, made within the State or relating to property situate within the State at the time of the making thereof, or where it is brought to recover real property situate within the State or a chattel which is replevied within the State, or where the cause of action arose within the State, except where the object of the action is to affect the title to real property situate without the State.

The language of the section at its commencement is, “ an action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident in one of the following cases only.” The'case in hand is not within any one of the subdivisions mentioned. It is for that reason that the learned judge in the court below said that the complaint did not make out a case within the provisions of either of the subdivisions of the section of the Code mentioned.

Section 427 of the Code of Procedure is substantially the same as the section already mentioned of the Code of Civil Procedure, except that the cases in which an action may be instituted by a nonresident against a foreign corporation are increased; although in the latter section ■ the word only is used and it has thus more explicitly limited the cases in which the court should have jurisdiction. Under section 427 it was held to be essential to the jurisdiction of the court over a foreign corporation that either the plaintiff should be a resident of the State, or the cause of action should have arisen, or the subject of the action should be situated in it (See Wait’s Annotated Code, p. 778 and eases cited; see also 2 Wait’s Pr., p. 131 and cases collected). Although it is claimed by the appellants that the' defendants have waived the question of jurisdiction by a general appearance in the action, it is quite clear that the proposition cannot be maintained, because the question of jurisdiction, may be interposed at any time; and in the answer of the defendants it is set out distinctly as a defense that the several causes of action in the complaint set forth did not arise in this State, that fhe subject-matter of the action is not in the State, and that the court has no jurisdiction of the subject of the action.

The decision of the Special Term, therefore, on the dismissal of the complaint, was correct, for the reason assigned as already suggested, if it be necessary to pass upon that question now, in order to determine the appeal under consideration.

Subsequently, the non-resident plaintiffs assigned the bulk of their stock, and stockholders also w'ho were not parties to the action made absolute assignments of their stock, for the purpose of enabling the assignee to enforce for their benefit the rights incident'thereto,, and to make him the owner of the legal title, and at the same time the trustee of an express trust, accountable to the assignors. A motion was then made by the plaintiffs,- with the concurrence of the assignee, for leave to file a supplemental complaint herein. The papers upon which the application was founded show that the plaintiffs, as to whom the complaint had been dismissed by the court on the trial, had assigned and transferred their stock to Mr. Fahnestock absolutely and as trustee to prosecute this suit for them; or, in other words, establish the fact that the assignee has acquired all . the interest which he now has since the trial of the action was begun. And it also appears that, when the application was made to Judge Van Vorst, before whom the trial took place, he directed it to be presented to the Special Term, where it was disposed of adversely to the applicants, Justice Lawrence holding that the decision of the Special Term was to the effect that Fahnestock had no cause of action in this State at the time this action was commenced ; that is to say, that as the non-resident plaintiffs, of whom he was the representative, or from whom he derived title to the stock, had no right of action in this State, none could be conveyed to him so that he could continue this suit, whatever power he might have to commence an original action under and by virtue of his assignment. And the learned judge said:

“ It - seems to be anomalous" to say that they can create a cause of action by assigning their stock to a third party, and that he can avail himself of the proceedings in an action in which his assignors had- been defeated.” And he cited the case of Wisner v. Ocumpaugh (71 N. Y., 117), in which the Judge said:

“ The rights of the parties must be determined at the commence-, ment of the action. Although an equitable defense is allowable to a legal action, it does not, when interposed, change the character of the action nor authorize transactions subsequent to the commencement of the action to be shown to affect the rights of the parties to the action as they existed when it was commenced.” And he said further: “ If I were to grant this motion I should materially change the rights of the parties to this action as they existed when it was commenced.”

From the order denying this application this appeal is taken.

The provisions of section 1780 of the Code, to which reference has already been made, seem to dispose of this appeal. The action, as originally brought, could not be maintained by the plaintiffs other than the resident plaintiff, ás to whom it was retained, and it is not possible by an assignment after the complaint has been dismissed as to them to revive the action, giving to the assignment the retroactive effect of creating the right to enforce a cause of action which did not exist at the time when the suit was commenced by the assignors. There is no,doubt that a claim against a foreign corporation by a non-resident can be assigned ,to a resident of this State for the express purpose of enabling him to sue and thus to avoid the disability which would otherwise exist. (McBride v. The Farmers’ Bank of Salem, 26 N. Y., 450; Petersen v. Chemical Bank, 32 id., 40-48.) But this principle does not aid the appellants, inasmuch as they were not assignees at the time of the commencement of the action.

No case has been found in which such a practice as contended for herein has been allowed, and it is supposed that no adjudication will be found in its favor. Section 544 of the Code of Civil Procedure and section 177 of the Code of Procedure, both provide that upon the application of the plaintiff the court may, in a proper case, permit him to make a supplemental complaint alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made. And it has been declared in this department that the facts alleged in the supplemental complaint are. in all cases, to be material to the case, i. e., to the case made against the defendant in the pending action. (Corbin v. Knapp, 5 Hun, 197.) And it was said to be a well settled rule of pleading that the matter of a supplemental complaint or answer must be consistent with and in aid of the case made by the original pleading, and that it cannot make a different case. (2Wait’s Pr., 471, and cases cited.)

For these reasons we think the order appealed from should be affirmed.

Daniels, J., concurred.

Present — Brady, P. «L, and Daniels, J.

Order affirmed.