text:
    PATRICK WALSH, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant, Impleaded with THE CITY OF BROOKLYN.

      Liability of municipal corporations for the negligence of trustees acting for them — the cities of Mew Toi'k and Brooklyn are liable for the negligence of the employees of the trustees appointed to build the Mast river bridge.

    The complaint in this action alleged that the defendants were, and each of them was, a domestic municipal corporation, duly incorporated; that on the 12th day of May, 1883, they were engaged in the construction of a work known as the New York and Brooklyn bridge, through their agents and officers, who were known as trustees of the said bridge, which was intended to, and did, span the waters of the Bast river and connect the two cities; that the defendants, 'acting through the trustees as their agents, employed a certain laborer to assist in the construction of the bridge; and that while he was so doing, and acting within the scope of his employment, he carelessly and negligently let a heavy plank of wood fall, which struck the plaintiff as he was passing along Water street, a public highway in the city of New York beneath said bridge, whereby the bones of his foot were broken and it was otherwise severely injured and bruised; wherefore the plaintiff demanded a judgment against the defendants for $10,000.

      Held, that the facts stated constituted a cause of action against the defendants, and that a demurrer interposed by them was properly overruled.

      Walsh v. Trustees of the New York and Brooklyn Bridge (98 N. ir., 427) followed.
    Appeal from an order overruling a demurrer interposed to the complaint.
    Upon overruling the demurrer at Special Term the following opinion was delivered:

      “ Lawrence, J.:
    “ In the case of Walsh v. Trustees of the New York and Brooltl/yn Bridge (96 N. Y., 427-439) it was held that the said trustees were not to be considered as a corporation, but as merely agents for and representatives of the two cities, and as such they were entitled to all the immunities of public agents, and that, therefore, an action to recover damages resulting from the negligence of a laborer engaged in the construction of the bridge was not maintainable either against the trustees of the New York and Brooklyn bridge as a corporation or against the trustees individually. The plaintiff in that action has now brought his action against the cities of New York and Brooklyn, and a demurrer has been interposed to his complaint, on the ground that it does not state facts sufficient to constitute a cause of action. In the opinion rendered in the action against the trustees heretofore referred to, Justice Earle, in delivering the opinion of the court, refers to the cases of Appelton v. The Water Commissioners (2 Hill, 432), and Bailey v. The Mayor (3 id., 531; and 2 Denio, 433), and Ehrgott v. The Mayor, ete. (96 N. Y., 264), in support of the proposition that the trustees represented and acted for the cities of New York and Brooklyn as their agents. (96 N. Y., 437.) But it will be seen that at the close of his opinion (96 N. Y., 439), while there is a very strong intimation that if responsibility rests anywhere for the carelessness of the laborer causing the injury to the plaintiff, it rests upon the two cities; the point'is not disposed of. I had occasion, recently, in the case of The People éx rel. Byan v. The Civil Service, eta., Boards of the City of New York

       to examine most of the cases cited in the points of counsel herein; I there came to the conclusion that the present aqueduct commissioners were the agents of the city of New York, and the authorities upon which that decision was based lead me to the conclusion that the trustees of the bridge were the joint agents of the defendants. (People ex rel. Ryan v. Civil Service Supervisors, 3 How. Pr. [N. S.], H.) I am, therefore, of the opinion that the complaint does state facts sufficient to constitute a cause of action against the defendants, and that there should be judgment for the plaintiff on the demurrer, with leave to the defendants to answer over on payment of costs.”

      David J. Dean, for the appellant.

      Charles J. Patterson, for the respondent.

       Reported ante, page 287.

   Brady, P. J.:

The complaint alleges that the defendants were, and each of them was, a domestic municipal corporation duly incorporated ; that on the 12th of May, 1883, they were engaged in the construction of a work known as the New York and Brooklyn bridge, through their agents and officers, who were known as trustees, and which bridge was intended to, and did, span the waters of the East river and connect the two cities mentioned ; that the defendants, acting through the trustees as their agents, employed a certain laborer to assist in the construction of the bridge, and that while he was so doing and acting within the scope of his employment, he carelessly and negligently let a heavy plank of wood fall, which struck the plaintiff as he was passing along Water street, a public highway in the city of New York, beneath said bridge, and by which the bones of his foot were broken and he otherwise severely injured and bruised.

The defendants interposed a demurrer, alleging that upon the face of the complaint it appeared it did not state facts sufficient to constitute a cause of action. The learned justice before whom the argument was had overruled the demurrer, expressing his views in an opinion which we think properly disposes of the question presented to him and, therefore, meets our approbation and concurrence.

It appeal’s from a report of the case of Walsh v. Trustees of the New York and Brooklyn Bridge (96 N. Y., 427), that in an action brought by the plaintiff herein against such trustees, the Court of Appeals expressed the opinion that the trustees were either agents of the State, or agents of the two cities of New York and Brooklyn for the construction of the bridge. In other words, that they were not the legal superiors of the laborer, and were responsible only for their own misconduct or negligence. And the learned judge who wrote the opinion in that case asked the question, having arrived at the conclusion that the trustees were not liable: Who, then, is responsible to the plaintiff for his injuries ? ” And he continued, “We will simply say that if responsibility for them (the injuries) rests anywhere but upon the laborer, whose carelessness caused them, it rests upon the two cities for whom the work upon which the laborer was engaged was being done. Whether they were his legal superiors, and thus responsible for his negligence, we do not at this time determine, as they have not appeared in this action and no argument has been made on their behalf.”.

Several propositions are presented by the learned counsel for the appellant leading to the conclusion substantially that the trustees were agents of the State and were not under the control of the municipalities in the construction of the bridge, and that, therefore, the defendants are not liable to the plaintiff for the injuries which he sustained.

The allegations of the complaint, to which attention has been called, seem to destroy the force of these suggestions, inasmuch as it is asserted that the trustees, as agents of the two cities, employed the person through whose carelessness the injury was occasioned. And assuming them to be such agents there can be no doubt that upon the doctrine of respondeat superior the defendants would be liable ; and this is substantially conceded by the learned counsel for the appellants. But his contention is that the trustees are independent of the corporation, in the tenure of their office and the manner of discharging their duties, and are to be regarded as public or State officers with such powers and duties as the State conferred upon them, in which latter case it must be conceded, without resort to any extended examination of the authorities, the defendants would not be responsible. (See 2 Dillon on Corp. [3d ed.], § 397.)

The provisions in the act authorizing the construction of the bridge (chap. 399, Laws of 1867), conferring power upon the respective cities to appoint trustees, would seem in themselves sufficient to establish the proposition that they were the trustees of the municipalities mentioned and not State officers; and more particularly as the cities respectively' are bound to pay for the improvement, although the revenues of the bridge over and above its expenses are to be employed in the payment of the debt incurred by its construction.

Independently of these views we regard the intimation of the Court of Appeals in the case of Walsh v. Trustees, etc. (supra), decidedly to be that the defendants are liable unless the responsibility rests upon the laborer whose carelessness caused the injuries, although they did not pass -upon that question as the defendants were not before them.

For these reasons, in addition to those stated in the opinion of Justice Lawrence, we think the judgment appealed from should be affirmed, with costs.

Daniels and Macomber, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J. :

license: Public Domain

text:
    JAMES A. FARLEY and CHARLES SPEAR, Respondents, v. UNION MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Life insurance — agreement to issue a paid-up policy for an equitable amount — how that amount is to be determined.

    The defendant issued a policy of insurance upon the life of Thomas Rigney on April 23, 1873, for the sum of $10,000, payable at the time of his decease; for which an annual premium of $762 was reserved. The premiums, twelve in number, were paid by him, and amounted in all, with a note of $2,291, to the sum of $9,144. By the policy it was agreed that, after three annual payments had been made, the company would at any time pay the holder of the policy its fair cash value upon its surrender while in force, or, in lieu of such cash value, would grant a paid-up policy for an equitable amount. The policy was assigned to the plaintiffs, who brought this action to compel the defendant to deliver a paid-up policy. The court determined that the plaintiffs were entitled to a paid-up policy for $9,144, subject to the amount due on the note.

      Meld, error; that this decision, gave the plaintiffs the fall benefit of all the premiums paid, and deprived the company of that portion which it had earned, by the risk taken upon the life of the assured, during the time the policy issued to him had been running.
    That the plaintiffs were entitled to what was the equivalent of the present value of the policy issued to Ttigney; and that was to be determined by the period for which it had then run, the amount of the annual premium, Kigney’s time of life, and the probability of its continuance, according to the tables consulted and acted upon for such purposes.
    Appeals from a judgment in favor of the plaintiffs recovered on a trial before the court, without a jury, and from an order making an additional allowance of costs.

      Merritt E. Sawyer and WilUam D. Whiting, for the appellant.

      Raphael J. Moses, Jr., for the respondents.
   Daniels, J. :

The defendant issued a policy of life insurance upon the life of Thomas Rigney on the 23d day of April, 1873, for the sum of $10,000, payable at the time of his decease, for which an annual premium of $762 was reserved. This premium was paid by him to and including the year 1884, making, in all, twelve payments, amounting, with a note of $2,291, to the sum of $9,144. By the policy it was agreed that, after three annual premiums had been paid, the company would at any time pay the holder of the policy its fair cash value upon its surrender while in iorce, or, in lieu of such cash value, a paid-up policy for an equitable amount would be granted. The policy was assigned to the plaintiffs in the action, and on the 16th of April, 1885, they proposed to surrender it to the company and take, in lieu of it, a paid-up policy in the amount they were entitled to receive under this agreement. The court at the trial held and determined that the. plaintiffs were entitled to a paid-up policy for $9,144, subject to an indebtedness of $2,210 upon the note, which had been reduced to that amount by an annual dividend. This decision necessarily gave the plaintiffs the full benefit of all the premiums which had been paid, and deprived the company of that portion which it had earned, by the risk taken upon the life of the assured, during the time the policy issued to him had been running. For that risk, by this decision, no compensation whatever was made to the company, and the decision was accordingly erroneous.

"What the plaintiffs were entitled to was a paid-up policy for an equitable amount upon the basis of the premium which had already been paid. In other words, they were entitled to what was the equivalent of the present value of the ten thousand dollar policy issued' to Bigney; and that was to be determined by the period for which it had then run, his own time of life, and the probability of its continuance, according to the tables consulted and acted upon for such purposes. The case in this respect was within the principle of Speer v. Phœnix Insurance Company (36 Hun, 322). There the company had refused, as it did in this instance, to issue a paid-up policy for the amount claimed by the plaintiffs, and a recovery by way of damages for the refusal, corresponding with the amount of premiums which had been paid by him, with interest thereon, was held to be improper; and it was then declared that he was entitled to recover a sum that equaled the value to him of the policy, or, in other words, that would make good to him the loss he sustained by its breach.” (Id., 325.)

Incidentally, also, this subject has been considered in determining the value of policies of life insurance against the receivers of insolvent insurance companies, and they have been considered to be of that value only, which would enable the assured to obtain another insurance for the same amount in a solvent life insurance company. (People v. Security Life Ins. Co., 78 N. Y., 114; Attorney General v. Guardian Mutual Life Ins. Co., 82 id., 336.) Upon the trial of the action witnesses were examined to estimate the value or amount of a paid-up policy which should be issued upon the surrender of the original policy, considering the premiums which had been paid upon it. Their estimates, to some extent, were based upon chapter 3é7 of the Laws of 1879, which, however, has no application to this controversy, and also upon the effect of the Northampton tables, which they were at liberty to consider for the purpose of reaching an intelligent conclusion as to what should be the value or amount of the paid-up policy. (Schell v. Plumb, 55 N. Y., 592; Sauter v. N. Y. Central, etc., 66 id., 50, 54.)

The estimates or conclusions, which these witnesses maintained by their evidence, all fell short of the amount allowed by the judgment of the court. The utmost reserve value of the policy to be issued was stated by the witness Homans, under the principle embodied in the statute, at the sum of $3,377, while the witness Standen, making his estimate upon the actuary standard of mortality, placed the amount at $3,528.40, and upon the basis of the Northampton tables of mortality, at the sum of $3,343, and on the principle of the act of 1879, at the sum of $3,377. And one or the other of these amounts, instead of that included in the judgment, seemed to have been the proper amount to have been adopted by the court. What it was to consider was the fair value, at the time, of the policy to be surrendered, for that would indicate the equitable amount for which the paid-up policy should be issued. And in ascertaining and determining that it was necessary to con sider the time the policy had run, the age of the insured, the amount of the annual premiums which had been paid; and required .to be paid during its continuance, and the probable period of its .continuance. These circumstances would indicate with reasonable ■plainness what would be the equitable amount of a paid-up policy; .and as before observed it would, probably, under the evidence, have been one or the other of the estimates of these two witnesses, who were the only persons sworn and examined as to this matter upon the trial. (Taylor v. Bradley, 39 N. Y., 129, 145.) What it was equitable the plaintiffs should receive was the fair value of ■the policy to be surrendered, or its fair equivalent in a paid-up policy, and to ascertain what that was, by the tenth of the stipulations upon the back of the policy, the amount unpaid on the note ¡was required to be set off or deducted. The case of Lovell v. St. Louis Mutual Insurance Company (111 U. S., 264) is not applicable to the controversy between these parties, for there the stipulation was different from that contained on this subject in this policy.

As the judgment has proceeded upon an erroneous theory of the •defendant’s liability, another trial of the action will necessarily take place, and for that reason no special attention will be required for the appeal taken from the order making an additional allowance of costs.

The judgment should be reversed, with co§ts to abide the event, and the appeal from the order dismissed, without costs.

Brads', P. J., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SARAH S. ADAMS and Others, Appellant, v. MICHAEL COLEMAN and Others, Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Certiorari to review an illegal assessment —1880, chap. 269, see. 1 — several persons may unite in the petition— a verification by one is sufficient — each petitioner need not sign in person — an attorney may sign in their behalf if authorized so to do — his authority to sign will be assumed from his signing it in their behalf.

    In these proceedings a writ of certiorari was issued to review the legality of an assessment made for the purposes of taxation upon the shares of the shareholders of the Merchants’ National Bank of the city of New York, who were about 800 in number. The petition was subscribed by one Edge, for himself and all the other petitioners, and it was verified by him. It was also subscribed by Burrill, Zabriskie & Burrill, attorneys for the petitioners. Upon the application of the respondents an order was made quashing the writ upon the ground that it could not he issued in this manner for the benefit of petitioners who did not themselves subscribe the petition.
    Held, error.
    That the act under which the petition was prescribed (1880, chap. 269, § 1) did not require all the persons in whose behalf the petition was presented to subscribe and verify it. It permits all persons who may he affected in the same manner by the assessment upon the same roll to unite in the same petition, and to obtain the writ of certiorari for their joint as well as several benefit, and that may be done by the representations of one petition, the truth of which may he verified by either of the petitioners.
    Nor does the act require in terms, nor by reasonable implication, that the petition shall he signed by each of the petitioners acting individually for himself or herself, hut its provisions will he satisfied, when they are represented by attorneys acting in their behalf.
    When attorneys subscribe such a petition, it is not to he assumed that they have done so without the authority of the petitioners, but rather that they have obtained such authority before subscribing it in such a manner as imports an authority so to do.
    It devolves upon the person alleging a lack of authority to establish that fact by proof before the proceeding can he held to he irregular, or the petition be dismissed.
    Appeal from an order quashing and dismissing a writ of certiorari as to all the petitioners named therein except Nelson J. H. Edge.

      John E. Burrill, for the appellant.

      David J. Dean, for the respondents.
   Daniels, J. :

The writ was issued to review the legality of an assessment made for the purpose of taxation upon the shares of the shareholders of the Merchants’ National Bank of the city of New York. They are about 800 in number, and the petition was subscribed by Nelson J. H. Edge for himself and all the other petitioners, and it was verified by him. It was also subscribed by Burrill, Zabriskie & Burrill, attorneys for the petitioners. The application to quash and dismiss the writ was made upon the ground that it could not be issued in this manner for the benefit of petitioners who did not themselves subscribe the petition. But section 1 of chapter 269 of the Laws of 1880, under which the petition was presented and the writ was issued, does not require that all the persons in whose behalf the petition may be presented shall subscribe and verify it. It permits all persons who may be affected in the same manner by the assessment upon the same roll to unite in the same petition, and to obtain the writ of certiorari for their joint as well as several benefit, and that may be done by the representations of one petition, the truth of which may be verified by either of the petitioners. The act requires no more than that, and the court, therefore, has no authority for imposing any further obligation in this respect upon the petitioners. Neither does it require in terms, nor by reasonable implication, that the petition shall be signed by each of the petitioners acting individually for himself or herself, but its provisions will be satisfied where, as in this case, they are represented by attorneys acting in their behalf. What they may do for themselves they may do through the intervention of attorneys acting under their authority. And where attorneys subscribe a petition as this has been subscribed, it is to be assumed that they have not done so without the authority of the petitioners, but rather that they have obtained such authority before subsci’ibing the petition, in such a manner as imports the delegation of the authority to do so to the attorneys. In this respect the proceeding is very much the same as the commencement of a suit in a court of law or equity, where the complaint is subscribed by the attorney or attorneys for the plaintiff. It is there assumed to have been regularly done under the authority of the -party who is represented; and if that is not the case, it devolves upon the person alleging the fact so to be, to establish it by proof before the proceeding can be held to be irregular, or the complaint or petition be set aside. That was not done in this case, but the application was made upon the petition itself and its verification by one of the petitioners. It could not be allowed to succeed without assuming, when the fact was not established by proof, that the attorneys were acting for and endeavoring to represent petitioners from whom they had received no authority. That could not regularly be done, especially as it appeared from the petition that it was impracticable to prove this signing and verification by each one of the shareholders.

The order which was made should be reversed, with costs, and an order entered, denying the respondent’s motion. •

Brady, P. J., concurred.

Order reversed, with costs; motion denied.


author: Daniels, J.:

text:
    THE WARDENS AND VESTRY OF ST. JAMES CHURCH, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Taxation— exemption of religious corporations therefrom.

    The plaintiff, a religious corporation created under the laws of this State, received on June 15, 1883, a deed of real estate situated in the city of New York, and commenced on the twenty-eighth of that month to erect a church edifice upon it. On August 29, 1883, a tax against the property was confirmed by the board of aldermen.

      Held, as the tax was not a lien upon the property at the time when the title to it was received by the corporation, that the tax was unlawful.
    Appeal from a judgment, sustaining a demurrer and directing the dismissal of the plaintiff’s complaint.
    IF. F. Funning, for the appellant.

      Arthur II. Hasten, for the respondent.
   Daniels, J.:

The plaintiff, a religious corporation created under the laws of this State, purchased real estate situated at the corner of Seventy-first street and Madison avenue, to erect and maintain a church edifice upon it. It received a deed of the property on the 15th of June, 1883, and commenced the erection of its edifice on the twenty-eighth of the same month. On the 29th of August, 1883, a tax amounting to the sum of $1,053.39 was confirmed by the board of aldermen against the property, and the plaintiff brought this action to obtain a judgment vacating and setting aside the tax as illegal under the statutes of the State, exempting the property owned and used by religious corporations from taxation. The court at the trial of the issue of law held the tax to have been lawfully imposed, and sustained the defendant’s demurrer to the complaint. This decision is supposed to liaye been warranted by what ivas decided in The Association for the Benefit of Colored Orphans v. The Mayor (38 Hun, 593), but it was not, for it was there assumed as the facts were presented, that the tax required to be paid had been imposed and confirmed prior to the time when the plaintiff obtained its title to the property; and the case of The People ex rel. American Geographical Society v. The Tax Commissioners, etc. (11 Hun, 505), was decided upon a similar presumption, and so evidently was that of People ex rel. Twenty-third street Railroad Company v. Commissioners of Taxes (91 N. Y., 593). But in the present case it appears from the complaint, and the fact was admitted by the demurrer, that the tax was not confirméd against this property until upwards of one month after its title had been acquired by the plaintiff, and it had commenced the improvement of the property by the erection of a church edifice. The tax was consequently not a lien or charge against the property at the time when the title to it was received by the plaintiff. (Barlow v. St. Nicholas Bank, 63 N. Y., 399.) The complaint was similar in its facts to the case of Washington Heights Methodist Episcopal Church v. Mayor, etc. (20 Hun, 297), where it was held that a tax so imposed was unlawful. That decision is controlling over the disposition which should be made of this appeal. The judgment should be reversed with costs, and the plaintiff should have judgment upon the demurrer, with leave to the defendant to answer within twenty days on payment of the costs of the demurrer.

Brady, P. J., concurred.

Judgment reversed, with costs. Judgment ordered for plaintiff on demurrer, with leave to answer in twenty days on payment of costs of the demurrer.


text:
    FRANCIS T. WALTON, Plaintiff, v. WILLIAM H. MEEKS and FRANCIS S. BERRY, as Administrators, etc., of ANNA McCABE, Deceased, and Others, Defendants.

      Action for specific perfoi-manae— the purchaser will not be compelled, to accept a doubtful title — what must be shown to authorize him to recover damages in such a case — who should be made parties defendant — allowance of costs to different defendants.

    This action was brought for the specific performance of a contract for the sale and conveyance of a dwelling-house, statuary, furniture and a lot of land, in the city of New York, formerly owned by one Anna McCabe, who died in 1879. On October 18,1879, the administrators of the said McCabe, together with the defendants Francis and James Berry, who claimed to be her sole heirs-at-law, entered into an agreement with the plaintiff for the use and occupation of the premises by him for three years and six months from November 1, 1879, with an option to him, if he should so elect prior to November 1, 1880, to purchase the premises, furniture and statuary for the sum of $31,500, payable $11,500 in cash and $70,000 by a bond, secured by a mortgage on the premises. The plaintiff having elected to purchase, the defendants Berry, as heirs-at-law, executed a deed, which, together with a bond and mortgage prepared by them, were tendered to the plaintiff on November nineteenth, with a request that he should accept the deed and execute the bond and mortgage, both of which requests were declined by him, for the reason that the title which would be conveyed was not satisfactory, in that it was not satisfactorily established that the two defendants were the only heirs-at-law of the said McCabe.
    After this, negotiations continued between the parties until March 17, 1881, when the defendants Berry conveyed the premises to the defendant Nevius, after which, and while still in possession of the premises under the leasehold part of the agreement, the plaintiff brought this action. It was proved on the trial that, prior to the tender of the deed, the plaintiff had expended $889 for an examination of the title, and also that the property, at the time he elected to take the title, was worth the sum of $40,000.
    The court held that the evidence showed that the defendants were not able to convey such a title to the property as the plaintiff could legally require, and directed a judgment relieving him from all obligation to take the property, and allowing him to recover, against the defendants Berry, the expenditures incurred in searching the title.

      Held, that the judgment was proper and should be affirmed.
    That as the proof failed to show that the defendants Berry were not the heirs-at-law of Anna McCabe, or that there were any other persons entitled as her heirs to the enjoyment of her property, the plaintiff could not recover the difference between the purchase-price and the value of the property.
    That, as after the plaintiff’s refusal to receive the deed the contract was still the subject of negotiations between the parties, and was not regarded as terminated, this action was properly brought to test the right and ability of the Berrys to convey a good title.
    That a claim for moneys expended by the plaintiff in decoration and cabinet work, amounting in value to between $4,300 and $4,500, was properly disallowed, as it appeared that these improvements were made before the plaintiff elected to purchase and while he was holding as a tenant under the agreement.
    That the administrators of Anna McCabe were properly made parties to the action as they had executed the agreement and agreed by its terms to sell the furniture.
    That Nevius, the grantee of the Berrys, was properly made a party, as he took title subject to the agreement made with the plaintiff, and would, if the Berrys title had been established, have been required to join in the conveyance to the plaintiff.
    That as this could not be done, costs were properly allowed to him.
    That the wife of the defendant Francis S. Berry was not entitled to any costs, as no relief was demanded against her except that she should join in the conveyance if it were directed to be made.
    That the payment of rent by the plaintiff to Nevius in no way changed the legal or equitable rights of the parties, as it was paid with that understanding.
    Appeals from a judgment, entered upon the trial of tbis action at a Special Term.

      Joseph A. Shoudy, for the plaintiff.

      WilUam II. MeeJcs, John A. Foster, A. W. Speir, for the defendants.
   Daniels, J.:

The action was in form brought for the specific performance of a contract for the sale and conveyance of a dwelling-house, statuary, furniture and lot of land, known as 13 "West Fifty-eighth street, in the city of New York. It was owned in her lifetime by Anna McCabe. She died in 1879, and the property was claimed by the defendants, Francis S. Berry and James S. Berry, as her heirs-at-law. They, together with her administrators, entered into an agreement with the plaintiff on or about the 18th of October, 1879, for the use and occupation of the premises by him, for the term of three years and six months, from the 1st of November, 1879. By the instrument which these parties then executed an option was given to the plaintiff, if he should elect to do so on or before the 1st of November, 1880, to purchase the premises, furniture and statuary, for the sum of $31,500, payable $11,500 in cash, and $20,000 by a bond secured by a mortgage on the premises, payable in five years, with interest at the rate of six per cent per annum. The plaintiff, on the 11th of October, 1880, elected to take the title to the property on these terms, and on the tenth of November in that year the defendants Francis. S. Berry and James S. Berry, as the heirs-at-law of Anna McCabe, executed a deed in the form prescribed by the agreement for the conveyance of the property to the plaintiff for the sum of $31,500. A bond was also drawn, but not executed, from the plaintiff to themselves, together with a mortgage upon the property, for the payment and security of the sum of $20,000. This deed was tendered to the counsel and agent of the plaintiff on the 19 th of November, 1880, and a request was made that the bond and mortgage should be executed by the plaintiff. The deed, however, was not accepted or received, but was declined, and so was the execution of the bond and mortgage, for the reason that the title was not considered to be capable of being conveyed at the time by the deed. The defect, which was urged as an excuse for the nonacceptance of the deed, was that other persons might be living who were the heirs of Anna McCabe, and that the fact was not satisfactorily established that the grantors named in the deed were two of her heirs. After this offer and refusal of the deed, further negotiations took place between the counsel for the parties relative to the conveyance of the property. And it was finally proposed by the plaintiff to receive the title, provided a condition should be inserted in the bond and mortgage which was proposed for his protection by his counsel. This was declined, and on the 17th of March, 18S1, the defendants Berry conveyed the property to Peter J. Nevius for the same consideration as was mentioned in the agreement with the plaintiff; and after that conveyance was made, and while the plaintiff remained in the possession of the property under the leasehold part of the agreement delivered to him, he brought this action against the defendants, in form at least, to obtain the specific performance of the agreement by the conveyance of the property, but the evidence which was given by him upon the trial, all tended to establish the fact that the defendants Berry were not able to convey a satisfactory title to the property, or such a title as he could legally be required to accept. The court at the trial adopted this view, and by its decision practically relieved him from all obligation to take the property, and allowed him to recover against the defendants Berry the expenditures incurred in searching the title, amounting to the sum of $339.

It was proved on the trial, and found as a fact by the court in its decision, that the property at the time when the plaintiff elected to take the title was worth the sum of $40,000, and for that reason inasmuch as the defendants Berry were held to be incapable of conveying a satisfactory title to the property, it has been claimed in his behalf that he should have been allowed the difference in the value of the premises between this sum and the sum of $31,500 which it was agreed he should pay for the same; but to maintain his right to recover this difference the law requires that the defendants Berry should be proven to have been in default in the performance of their agreement. And that could only lie done by proof of the fact that they were not the owners of the title to the property) or that they had refused or neglected to convey it after a tender of the purchase-price, and a request to execute and deliver the deed had been made on behalf of the plaintiff. Proof of one or the other of these facts was legally essential to the right of the plaintiff to recover this difference. (Beecher v. Conradt, 3 Kern., 108; Delavan v. Duncan, 49 N. Y., 485; Nelson v. Plimpton, etc., Co., 55 id., 480.)

No offer to pay the amount, which by the agreement was to be paid in cash, and no request for the delivery of the deed, was ever made on behalf of the plaintiff. He, on the contrary, declined to receive the deed which was made out and offered to him on the part of the defendants Berry. The only legal ground, therefore, upon which he could recover this difference between the purchase-price and the value of the property, was proof of the fact fbat the defendants Berry were incapable of conveying to him by their deed the legal title to the property. That proof he endeavored to make upon the trial of the action, but the fact was neither established nor found by the court. The utmost extent of his proof was that there was some probability of one or more persons in being, entitled to inherit the property of Anna McCabe besides the defendants Berry, and that the fact was at least doubtful that they themselves were entitled as her heirs to any interest in her property. This proof fell short of maintaining the essential fact upon which the right of the plaintiff to recover this difference depended, that the defendants Berry were not the heirs of Anna McCabe, or that there were any other persons or person, entitled as her heirs to the enjoyment of her property. She was shown to have been the daughter of John McCabe, whose family consisted of his wife and three other children. The two sons, James and Francis, were alleged to have died years before the decease of Anna McCabe herself, and the evidence which was given, had a direct tendency to prove the alleged death of these two persons. Her father was described as a blacksmith and wheelwright, living on Pitt street, in the city of New York, and the evidence very decidedly indicated his decease, and that of his wife, to have taken place previous to that of this daughter. The remaining child of the family was Bridget McCabe, whom the evidence showed to have intermarried with Stillman Berry, and the defendants Berry were their sons. They resided in Lowell, in the State of Massachusetts, where Berry himself died, leaving Bridget, his widow, and these two sons, who bore the Christian names of her own brothers, him surviving. She afterwards intermarried with Oliver Moulton and died, leaving him surviving her. There were two children of this marriage, who appear to have died before the decease of their mother. This evidence had a decided tendency to maintain the fact to be, as the only daughter of Anna McCabe died before her mother, that the defendants Francis S. and James S. Berry were the owners of the legal title to this estate, and the proof given on behalf of the defendants, during the course of the trial, confirmed this presumption, and rendered it quite probable that these two persons were the only surviving heirs of Anna McCabe. No such default was established by the proof in the case, as would justify the conclusion that these defendants 'had failed to perform their agreement for the conveyance of the property, or were legally incapable of conveying the title to it, and there was no ground, therefore, upon which the plaintiff had the right to recover the difference between the value and the price agreed to be paid for the property. In excluding this recovery, no error intervened in the disposition of the case, and the plaintiff’s appeal, so far, from the judgment must, consequently, fail.

Upon the proof, as it was given during the trial, there was at least a probability that Francis S. and James S. Berry were not the sole and only heirs of Anna McCabe, and the law would not, therefore, against the objections of the plaintiff, oblige him to accept a conveyance from them of this property, for the performance of an agreement of the description of that contained in the lease for the sale of these premises. To perform the agreement the law requires that a title, reasonably free from doubt, shall be conveyed by the grantor. But it is true that a mere possibility that the title will prove defective is not sufficient to sustain the refusal of the purchaser to receive it. (Post v. Bernheimer, 31 Hun, 247; Hellreigel v. Manning, 97 N. Y., 56; Fleming v. Burnham, 100 id., 1.)

And under these authorities the plaintiff is legally protected in declining to receive this title, although it probably would have vested him with a complete right to the use, enjoyment and disposition of the property. To test this right and the ability of the Berrys to convey the action was proper, for after the plaintiffs’ refusal to receive the deed the contract was still made the subject of negotiations between the parties; it was not regarded as at an end, but expedients were discussed and considered, which might have the effect of harmonizing the differences between the parties. And while that continues to be the fact, and the case is otherwise free from difficulty, an action for the specific performance of an agreement for the conveyance of land may be maintained. (Willis v. Dawson, 34 Hun, 492.)

In addition to this circumstance, it was made to appear that the plaintiff had incurred and expended the amount allowed to him by the judgment, before the deed was offered and refused. That expenditure was made in good faith to ascertain and determine whether such a title could be conveyed to the property as the plaintiff by the agreement had a right to claim; and having made that expenditure, in this manner, when it was ascertained that the title was not free from reasonable grounds of doubt, he was entitled to have this amount of money refunded to him by the defendants, who had agreed to convey the land. To that extent he was entitled to relief as it was accorded to him by the judgment.

A further claim was made for the value of improvements upon the property by the plaintiff. These improvements consisted in decorations and cabinet work amounting in value to. between forty-three and forty-five hundred dollars. They were disallowed by the court before which the trial took place. And from the evidence it was made to appear that these improvements were made prior to the month of October, 1S80. This was before the plaintiff elected to take the title to the property, and while he was in fact no more than a tenant, under the agreement executed, and delivered to him. The improvements were made while he sustained that and no other relation to the defendants, and the law is well settled that a tenant has no legal claim for expenditures made' for improvements upon the demised property, against the landlord who has entered into no agreement to make them or for their payment. The plaintiff was not entitled to recover this sum of money, and it was lawfully so held by the court. All the relief which he could legally claim upon the facts, as they appear by the proof, was secured to him by the judgment.

The administrators of the estate of Anna McCabe were proper parties to the' action, for they had not only executed the contract, but had agreed by its language to sell the furniture in the dwelling to the plaintiff. So, also, it was regular to make Nevius, the grantee of Francis S. and James S. Berry, a defendant in the action, for if it could have been proven that a title could be conveyed, which the plaintiff was bound to receive, this defendant would have been a necessary party to that conveyance. And as he had received his title, subject to the lease delivered to the plaintiff, as that was expressly declared he should by the deed delivered to him, if the plaintiff had been adjudged entitled to the property, this defendant could not, as a purchaser, have withheld it from him. But as the action could not be maintained, the judgment rightly dismissed the complaint as to this defendant, and costs were not improperly allowed to Ms executors, who were made parties to the action after his decease, during the pendency of the suit.

The defendant Mira Berry, who was the wife of Francis S. Berry, had no legal claim to the allowance of costs. She was subjected to no necessity for defending the action, for no relief was claimed or demanded against her, except the fact that she should be required to join in the conveyance of the land, if the plaintiff should be adjudged to receive the title.

Some other points have been urged upon the consideration of the court, but they d.o not require attention for the disposition of this controversy. The payment of rent by the plaintiff to Nevius in no manner changed his legal or equitable rights, for the rent was paid with that understanding on his part, of which Nevius was apprised, after the defendants Berry declined to receive it. As the case was made out by the proof the judgment was right and it should be affirmed, with costs to the plaintiff on the appeals of the defendants, and with costs to the defendants Francis S. and James S. Berry, and the administrators of Anna McCabe and the executors of the estate of Peter J. Nevius on the appeal of the plaintiff.

Brady, P. J., concurred.

Judgment affirmed.


author: Brady, J.:

text:
    MARY SIMON, Respondent, v. WILHELMINA F. SCHMIDT, Appellant.

      Conveyance of property hy a deed intended as a mortgage — an agreement that the right of redemption shall cease at a specified time will not destroy the right to redeem —as to the duty of the grantee to inform the grantor of the amount claimed to he due for expenditures — res adjudicata.
    This action was brought to obtain a decree adjudging a certain paper, purporting to be a deed, to be a mortgage, and to permit the plaintiff to redeem the premises described therein. At the time of the execution of the deed an agreement was entered into between the parties by which the defendant, the grantee, agreed to reconVey the property upon the payment of the amount of a mortgage existing in her favor, together with the consideration money paid by her, and all money paid out and expended and thereafter to be paid out and expended on account of said premises for interest, taxes, Croton water rents, insurance premiums, necessary repairs of said premises and payment of the first mortgage then upon said premises, with interest on all such moneys paid out at seven per cent less the amount received by the party of the first part for rents of said premises after first deducting from such rents the costs and expenses for collecting the same. The agreement provided that the right, thus secured to the plaintiff, to redeem should continue for three years. “But it is expressly understood and agreed by and between the parties to this agreement, that the said deed to the party of the first part is and shall remain an absolute not a conditional conveyance, and that on and after July 1, 1881, this agreement shall be void.”

      Held, that as it was intended that a right to redeem should be reserved to the plaintiff, the deed, though absolute in form, was in fact a mortgage, and that assuming it to be such it was impossible for the defendant to become absolutely vested with the fee unless by a new conveyance, or a foreclosure of the mortgage created by the agreement of the parties.
    That the clause inserted in the agreement attempting to define the nature of the deed should be rejected as utterly inconsistent with the relations existing between the parties and as surplusage.

      Queers, as to whether if the agreement had contained a proviso that if, upon the expiration of three years, the payments contemplated by it were not made, the conveyance should then become an absolute transfer in fee without the necessity of resorting to any court of justice for the purpose of carrying out its provisions, the fee might be held to have vested absolutely.

      Qumre, as to whether the defendant should not have made a demand upon the plaintiff for the payment of the lien, as from the license given to the defendant in the matter of expenditure it would seem to be impossible that she should know the amount due from her unless in some manner advised thereof.

      Hiller y. HcGweJcin (15 Abb. N. O., 20f).
    That a judgment, in a former action between the same parties, sustaining the defendant’s demurrer with leave to plaintiff to amend, upon the ground that the plaintiff was bound to make certain payments, and that he did not offer tó do so, did not make the question res adjudieata in this action.
    Appeal from an interlocutory judgment of tbe Special Term, adjudging a deed from the plaintiff to the defendant to be a mortgage.

      L. S. Goebel, for the appellant.

      A. J. Dittenhoefer, for the respondent.
   Brady, J.:

This action was brought to obtain a decree adjudging a certain paper writing, purporting to be a deed, to be a mortgage and to permit the plaintiff to redeem the premises. At the time of the execution of the deed an agreement was entered into between the parties by which the defendant, the grantee, agreed to reconvey the property upon the payment of the amount of a mortgage existing in her favor, together with the consideration money paid by her and all moneys paid out and expended, and thereafter to be paid out and expended on account of the premises for interest, taxes, Croton water rents, insurance premiums, necessary repairs of the premises and payment of the first mortgage now upon the premises, with interest on all such moneys paid out at seven per cent, less the amount received by the party of the first part for rents of the premises after first deducting from such rents the costs and expenses for collecting the same. And this right thus secured to the plaintiff was by the agreement to continue for three years, and there was inserted in the agreement this clause:

“ But it is expressly understood and agreed by and between the parties to this agreement that the said deed to the party of the first part is and shall remain an absolute not a conditional conveyance, and that on and after the first day of July, one thousand eight hundred and eighty-one, this agreement shall be void.”

It is not disputed that the conveyance, notwithstanding its absolute form, was a mortgage for at least the period of three years already mentioned, and so the learned justice in the court below found, and so expressed himself in the opinion delivered, but he gave a judgment in favor of the plaintiff upon the proposition that the right to redeem was intended to be reserved, and thus the deed was held to be in legal effect a continuing mortgage. Assuming it to be such, it was impossible for the defendant to become absolutely vested with the fee unless by a new conveyance or a foreclosure of the mortgage created by the agreement of the parties, notwithstanding the form of the instrument as already indicated, by which it was conveyed to the defendant.

It appears that a former action was commenced by the plaintiff, and that the defendant interposed a demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Upon the argument of that demurrer Justice "Van Vokst pronounced judgment in favor of the defendant, with leave to amend on payment of costs. He discussed the agreement made with the conveyance, and as by its terms the plaintiff was required to make, certain payments before she could assert her right to a reconveyance, and did not offer to comply with those terms, he based his judgment evidently upon that omission. He said : “Upon making such payment within the time limited the grantee was entitled to have the property reconveyod to her. Such is the agreement of the parties, and by its terms they must abide. The court can substitute no other in its place. The grantee has neither paid nor offered to pay, and does not in her complaint offer to pay, the sums or any of them, which she was bound to pay to entitle her to a reconveyance.”

Unless the learned justice thought that an amendment of her complaint would have brought the case within the doctrines of equity jurisprudence, he would have ordered judgment absolute. The general character of the opinion is unmistakable in its intention to declare that if the offer to pay the amount had been made by the plaintiff she would have an advantageous status in court. Indeed he said: “ In cases of doubt even, a court of equity favors a conclusion which confers the right to redeem, and will not hold a conveyance absolute when it can be upheld as a mortgage.” This demurrer is referred to for the reason that the defendant seems to think that the question involved is res adjudioata arising upon the judgment pronounced by the learned justice to which reference has just been made.

The proposition announced by the learned justice, who presided in this case, which is substantially that once a mortgage always a mortgage, cannot well be disputed on account of the peculiar characteristics of the agreement accompanying the deed. It declares, notwithstanding the agreement to the contrary, and to the contrary in the most express terms that the deed shall remain an absolute and not a conditional conveyance, and that upon a day named, which is after the expiration of the three years provided for, the agreement should be void. The object of this provision was doubtless to defeat the equitable proposition already referred to, namely, that once a mortgage always a mortgage, and this portion of the agreement should be rejected as utterly inconsistent with the relations existing between the parties and as surplusage. The agreement made the conveyance a mortgage and, therefore, it could not by any such clause be converted into an absolute conveyance. If the agreement had contained a proviso that if, upon the expiration of tbe three years, the payments contemplated by it were not, made, the conveyance should then become an absolute transfer in fee without the necessity of resorting to any court of justice for the purpose of carrying out its provisions, it is possible, though questionable, that the fee might be held to have vested absolutely. But there is no provision of that kind, and there is nothing in the .agreement which sustains the right of the grantee, 'without resort to proper proceedings therefor, to establish the conveyance executed as an absolute one.

In Horn v. Keteltas (46 N. Y., 605), which seems germane to the subject, the Court of Appeals said: “ It is now too late to controvert the proposition that a deed absolute upon its face may in equity be shown by parol or other extrinsic evidence, to have been intended as a mortgage ; and fraud or mistalw in the preparation or as to the form of the instrument is not an essential element in ■an action for relief and to give effect to the intention of the parties.”

It may be further remarked that there is no evidence of any demand made upon the plaintiff for the payment of the lien, which would seem to be essential as from the license given to the defendant in the matter of expenditures it would seem to be impossible ■that she should know the amount due from her unless advised in some form. In Miller v. McGuckin (15 Abb. N. C., 204), which was in some respects kindred to this case, the provision was that the .amount should be refunded at the expiration of one year, and it was held that the strict observance of the time so designated was not made an essential part of the agreement, and it was suggested that no proceedings whatever were at any time taken by the defendant to extinguish the right of the plaintiff to a reconveyance; the learned court in that case saying that the defendant “ neither presented his account showing the rents and profits received by him, or the expenditures made by him, nor called upon the other party to fulfill the agreement by refunding any sum which might have •become due to him for advances he had made. And without a .statement of account including such items, he was not in a situation to insist upon a settlement of any claims which might be made by him, or p, forfeiture of the right of the equitable owner of the ¡property to receive the title.”

It may be said, in conclusion, that a Court of Equity will not, in the exercise of its protective power, prevent a redemption unless under all the circumstances disclosed there can bo no doubt whatever that such a privilege was not in contemplation of the parties contracting or could not be fairly asserted to have sprung out of the relations existing between them.

The appellant complains that interest and costs were charged against her. The first action was, however, commenced within a very short period after the expiration of the three years and the defendant chose to rely upon the strict and literal enforcement of the express terms of her contract, rejecting all equitable considerations.

Judgment should be affirmed.

Daniels, J., concurred.

Judgment affirmed.


author: Brady, P. J.:

text:
    CHARLES SCHWARTZ and JOHN DUPEE, Jr., Respondents, v. WILLIAM K. SOUTTER and FRANKLIN EDWARDS, Appellants.

      General assignment — void if not accepted and acknowledged by the assignee before its record — 1877, chap. 466.
    On September 28, 1885, tbe defendants made a general assignment for the benefit of their creditors, which was recorded on the following day. The assent of the assignee was not embraced in or indorsed upon the assignment before the same was recorded, as required by section 2 of chapter 466 of 1877. Upon the day the assignment was recorded, the omission just mentioned was discovered, and the acceptance of the assignee, dated the twenty-eighth of September, was acknowledged on the twenty-ninth, and separately recorded at 10.35 A. m., or about an hour and a half after the assigáment itself had been recorded.

      Held, that the assignment was void and that the assignee derived no title to the property assigned, even as between the parties to the instrument.

      Smith v. Boyd (10 Daly, 149) approved and followed.
    Appeal from au order made at Special Term, denying a motion to vacate an attachment.

      Delos McCurdy, for the. appellants.

      John II. Miller and Eugene Smith, for the respondents.
   Brady, P. J.:

It appears that on the 28th of September, 1885, the defendants, who were general partners in a limited partnership, made a general assignment for the benefit of their creditors, which was recorded on the day following. The assent of the assignee was not embraced in or indorsed upon the assignment before the same was recorded, as required by the act of 1877, chapter 466, section 2. Upon the day of the record the omission just mentioned was discovered, and the acceptance, dated the twenty-eighth of September, was acknowledged on the twenty-ninth and separately recorded at ten o’clock and thirty-five minutes, or about an hour and a half after the assignment itself had been recorded. It also appears that the firm, finding themselves insolvent, sent for their counsel and were by him advised to make an assignment, and acting on his advice they executed one in good faith, and without intent to hinder, delay or defraud any of their creditors or the plaintiffs herein, and without being aware that such assignment was contrary to law.

The assignment contained a preference to the administrators of one Louis Ilansen, deceased, for the amount of $30,000, and to the firm of Robert Garrett & Sons for the sum of $39,000, the firm being indebted to these persons in the amounts named.

It also appears that before any act was done under the assignment the counsel for the defendants discovered that the firm of Soutter & Co., instead of being a general partnership was a limited one, and included Mr. Timothy H. Porter as a special partner. Thereupon, and on the 1st of October, 1835, another assignment was duly executed, acknowledged and recorded containing no preferences, which recited the true nature of the partnership and embraced in it the assent of the assignee. Under this last assignment the assignee filed his bond and schedule, treating the former assignment as a nullity. On the thirtieth of December, or nearly three months after the recording of the last-mentioned assignment, the plaintiffs procured a warrant of attachment. The defendants moved to vacate it upon the affidavit of Mr. Edwards, one of the defendants, the two assignments and the papers upon which the attachment was granted. The motion was denied. From the order of denial the defendants appeal.

It is conceded that under the provisions of the Revised Statutes tbe assignment of the twenty-eighth of September was void as to creditors because it contained preferences, and it is contended that it was absolutely void between the parties. The learned justice in the court below found, however, that the first assignment was good between the parties though void as to creditors, and that nothing passed, therefore, by the new instrument, L e., the one executed upon the 1st of October, 1885.

The question presented upon this appeal is whether this view of the learned justice is correct. The statute of 1877 requires that the assent of the assignee shall be embraced in or at the end of, or indorsed upon, the assignment before the same is recorded. (Laws 1877, chap. 166, § 2.)

In Britton v. Lorenz (15 N. Y., 55) Judge Grover said, in reference to the statute governing assignments and originally passed in 1860 (see laws of that year, chap. 318): “ Unless instruments of this character are executed in conformity to this section they are void:” And, further: The bill of sale not having been executed as required by section 1 was void, and no title was acquired by the defendants under it.” “ It follows,” said the learned judge, “ that such title remained in Schenck, the former owner, until his assignment to the plaintiffs, and it passed to them by virtue thereof.” And it was held in Smith v. Boyd (10 Daly, 149) that an assignment for the benefit of creditors was not valid if it was not duly acknowledged and recorded, and that the assignee derived no title until the assignment was so recorded.

The cases bearing upon this subject and referred to in Smith v. Boyd (supra), namely: Rennie v. Bean, (21 Hun, 123); Hardmann v. Bowen (39 N. Y., 196); Britton v. Lorenz (45 id., 51); Jones v. Bach (18 Barb., 568); Treadwell v. Sackett (50 id., 441), and, also, the adjudication in the Matter of Leahy (8 Daly, 124), establish the rule that the statute is mandatory and that unless its provisions are complied with the instrument is absolutely void and the assignee derives no title.

Having arrived at this conclusion the appeal is necessarily disposed of and in favor of the appellant, inasmuch as the assignment being void and the assignee deriving no title from it, it was not valid between the parties; and no rights having intervened the subsequent assignment executed upon the 1st of October, 1885, and in compliance with the statute to which reference has been made, was valid, and conveyed the title to the property embraced within it to the assignee.

For these reasons the order appealed from should be reversed, and the motion granted, with ten dollars costs and the disbursements of the appeal.

Daniels and Churchill, JJ., concurred.

Order reversed.


text:
    SOPHIA M. SHEPARD, Plaintiff, v. JOSEPHINE GASSNER and Others, Respondents.

      Will — when a t/rusi expressed in ambiguous terms will be sustained.

    A testator gave and devised all his estate, real and personal, to his executors, “ to have and to hold the same, to them and to the survivors and survivor of them during the lifetime of my wife Rachel, and during the lifetime of my daughter Josephine, in trust, to apply the rents, profits and income of the same to the use of my said wife Rachel, so long as she shall remain my widow, and in case she shall remarry, then to apply the sum of two hundred dollars to her use annually, free from the debts, control or interference of her husband and to apply the residue of said rents, profits and income to the use of my children now living, equally, and upon the death of my said wife Rachel, and of my daughter Josephine, to sell and divide the proceeds of my estate among my children then living, equally.”
    Upon the trial of this action, brought to have the trust declared void and the estate partitioned, it was decided that the only ¿valid trust created by the ■will ceased at the death of the widow, and that the trust'attempted to be created during the lifetime of the daughter was void.
    Held, error; that the intention of the testator was that his estate should be held in trust during the lives of his wife and daughter, and that his executors should apply the rents and profits to the use of his wife as long as she should remain unmarried, and upon her death and during the life of his daughter Josephine to apply them to the use of his children then living, and upon the death of both to sell and divide the proceeds of his estate among his children then living.
    That a valid trust to continue during the lives of the widow and the daughter, was created.

      Morse v. Morse (85 N. Y., 53); PMUips v. Davies (93 id., 199) followed; Ooohe v. Platt (98 N. Y., 35) distinguished.
    Motion for a new trial, under section 1001 of tbe Code of Civil Procedure, upon exceptions taken by tbe defendants to tbe report and refusals to find of Ward Hunt, Jr., Esq., referee, to whom it had been referred to hear, try and determine all the issues in this action.
    The action was brought to declare void the last will and testament of John B. Gassner, deceased, and the trusts and power therein contained, and for a partition and division of the lands of which the said John B. Gassner died seized, among the parties entitled thereto; or in case the said trusts should be adjudged valid then that a trustee be appointed with such instructions relative to the rights of the several cestuis que trust as may be just, and also for an accounting.
    There is no dispute as to the facts. They are admitted to be as found by the referee and contained in his report, and so far as material to the questions now before the court are as follows: John B. Gassner died in the city of New York, June 12, 1856, seized in fee simple of the premises known as No. 76 Grand street, in said city, and Nos. 277 and 279 Bank street, in the city of Newark, New Jersey, and leaving him surviving Rachel Gassner, his widow, and his only heirs-at-law his daughters, the plaintiff Sophia M. Shepard, and the defendants Josephine Gassner, Almira Gassner, Louisa Gray, Adelaide Betts, Elizabeth Y. Smith, and Ellen Gassner, Rachel Gassner and Mary Gassner, and his grandson John G. Nestle, the only son and heir-at-law of Caroline Nestle, a deceased daughter of said John B. Gassner, deceased, who had died intestate prior to the death of her father.
    Two of said 'daughters, Rachel and Mary, died intestate and without issue, subsequent to the death of their father, and during the life of the widow. The widow died February 13, 1874, and the daughter Ellen died intestate, and without issue, about a year subsequent to her mother’s death. Peter Gassner, a son of John B. Gassner, died intestate, and without issue, in 1845, and Mrs. Lyon, a daughter, died intestate, and without issue, in 1853. The said J ohn B. Gassner had no other children than those above named, all of whom are now living, except those whose deaths have been specifically stated.
    The said John B. Gassner, deceased, also left a last will andi testament, which has been duly admitted to probate by the surrogate of the county of New York, the second clause of which is as follows:

      “Second. I give, devise and bequeath all my estate, real and personal, of every nature and kind, to my executors hereinafter named, to have and to hold the same, to them and to the survivors and survivor of them during the lifetime of my wife Rachel, and during the lifetime of my daughter Josephine, in trust, to apply the rents, profits and income of the same to the use of my said wife Rachel, so long as she shall remain my widow, and in case she shall remarry, then to apply the sum of two hundred dollars to her use annually, free from the debts, control or interference of her husband, and to apply the residue of said rents, profits and income to the use of my children now living, equally, and upon the death of my said wife Rachel, and of my daughter Josephine, to sell and divide the proceeds of my estate among my children then living, equally.”
    The testator’s daughter Josephine, mentioned in the foregoing will, is the defendant Josephine Gassner herein, and is still living. His wife Rachel survived him as above stated, but died February 13, 1874. Letters testamentary upon said will were issued by the said surrogate to Peter Gassner, one of the executors therein named, who duly qualified as such and entered upon the execution of his trust. Neither of the other executors named in said will ever qualified as such or entered upon the execution of their trust. Peter Gassner, the executor who qualified, died in 1859, and the other two died prior to the commencement of this action. No other executors or trustees of or under said will have ever been appointed.
    The referee, before whom the action was tried, found and decided, among other things, that the trust created by said will during the life of Rachel Gassner, the testator’s widow, was a good and valid trust within the Revised Statutes, so as to vest the legal title in the trustees during her life, but that the trust attempted to be created by said will, subsequent to the death of the widow and during the life of the daughter Josephine, is not a good and valid trust; that no estate or power vested in said executors, or in the court, which continued after the death of the widow; that the only valid trust created by said will ceased at the death of the widow; that the estate and power which were originally vested in the executors, and subsequently vested in the court, ceased at the same time; that upon the' death of the widow the legal title to said real estate vested in the daughters then living, equally, as tenants in common ; that upon the death of the daughter Ellen, in 1875, her share of said estate being an undivided one-seventh part thereof, vested in her surviving sisters and in the defendant, John G-. Nestle, as tenants in common ; that the said real estate is now held and owned by the said parties as tenants in common; and that the plaintiff is entitled to a judgment of partition or sale of the real estate within the State of New York, in accordance with the rules and practice of the court. Upon said report an interlocutory7 judgment was entered September 25,1885, adjudging the rights and interests of the parties in accordance therewith, and directing a sale of said premises by Joseph P. Eallon, Esq., as referee.
    No proceeding or hearing has been had under said interlocutory judgment, and the defendants now move for a new trial of this action as stated above.

      Dorwin cfc Brawn, for the plaintiff.

      Emil 8. Arnold and John W. Pirsson, for the defendants.
   Brady, J.:

The learned referee was requested to determine whether or not that part of the second clause of the will is valid, which purports to impress the property with a trust subsequent to the widow’s death and during the life of the daughter Josephine. He said that the question arose because of the fact that the will made no disposition whatever of the rents and profits of the estate during that period. He said that in a multitude of cases the courts have construed words and phrases to meet the general scope of a will, although the plain language may be quite contrary, standing alone, to the construction thus given. But he thought that in this case there was neither word nor phrase which the court could construe or from which it could construct a theory of intention. He thought, also, that it was altogether probable as the defendants claim that the omission referred to was clerical merely, but he regarded it as fatal and felt constrained to hold that the attempted creation of a trust during Josephine’s life failed in its object. This view does not seem to be justified by a proper interpretation of the second clause. The manifest intention of the testator to be gathered from the clause itself and justified by its language, is that his executors were1 to hold his estate during the lifetime of his daughter Josephine, in trust, for the uses expressly declared. The expression of this intention is not accomplished by- a union of those names, but by a separate statement as to each, the trust being to apply the rents, profits and income to his wife Rachel as long as she should remain liis widow, and upon the death of his wife and his daughter to sell and divide the proceeds of his estate among his children, then living, equally. But if his wife Rachel should intermarry, she was to receive, not the income of his estate, but an annuity of $200 only, and the executors were to apply the residue of the rents and profits to the use of his children then living. In other words he said: I wish my estate held during the lives of my wife and daughter and that my executors shall apply the rents and profits to the use of my wife as long as she shall remain unmarried, and upon her death and during the life of my daughter Josephine to apply them to the use of my children then living, and upon the death of both to sell and divide the proceeds of my estate among my children then living, equally.” This view is based upon the testator’s declaration that the trust shall extend during the life not only of his wife, but of his daughter Josephine. The provision as to the annuity of $200 in case of his wife’s remarriage was a partial abrogation of the trust, leaving a fund in excess which was to be distributed between the children, and as the trust was to continue, namely, to apply the rents, issues and profits, it may under such circumstances be fairly inferred that in case of the death of Rachel the same disposition was to be made of the income. It is not necessary to constitute a valid trust that it shall be stated in the precise words of the statute. It is sufficient if the intention to create it can be fairly collected from the instrument and what is implied by the lauguage used, as suggested by the learned counsel for the defendant. This view is sustained by the case of Morse v. Morse (85 N. Y., 53), in which case it was held that although there was no express direction in the will as to the disposition to be made of the rents and profits, nevertheless it would be implied that they were to go to the persons interested in the estate; and it was said that though the will did not expressly authorize the executor to receive the rents and profits, yet the power to rent and lease carried with it the power to receive the rents accruing from its execution. (See, also, Vernon v. Vernon, 53 N. Y., 353; Robert v. Corning, 89 id., 236.)

In Phillips v. Davies (92 N. Y., 199) it was lielcl that where, upon examination of a will taken as a whole, the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt or inaccurate modes of expression, the court may and it is its duty to subordinate the language to the intention ; it may reject words and limitations, supply or transpose them to get at the correct meaning.

The case of Cooke v. Platt (98 N. Y., 35), which seems to be in conflict with these views, is not so, however, as appears upon examination ; because, in that case, there was no direction whatever to apply the rents and profits to the use of any person, for it was not the intention of the testator that the rents and profits should be distributable as such, but that they should be incorporated in the mass of the estate. Here the testator directs the application of the rents and profits during the life of the widow, and also in the event of her remarriage, and he undoubtedly intended that the application of the rents and profits should continue during the lifetime of his daughter Josephine, because the trust made is in connection with such distribution and evidently intended to be covered by it.

The discussion of this question might be extended ad libitum by a reference to the multitudinous adjudications bearing upon questions analogous and kindred. But it is considered that it would be entirely unnecessary, for if the intention of the testator can be ascertained from the instrument, on very well established principles, it must prevail. The rule is founded upon common sense, the doctrines of natural justice and the determination to dispose of the estate as the owner intended should be done. Any rule to the contrary by which the design of the testator in the disposition of his property is frustrated would be an antagonism to any one of those principles and could not be sustained.

Courts have no power, and it is trusted, have no disposition to make wills, and although m consequence of ambiguities arising from ignorance of the law of uses and trusts, and sometimes from infelicities of expression, they are called upon to construe and interpret wills, and may, in the exercise of that duty, mistake the intention of the testator, nevertheless it is the best that can be done under the circumstances in the administration of the law. Having arrived at tlie intention of tlie testator, and assuming the views expressed on that subject to be correct, the duty of the appellate court is performed.

The judgment should be reversed.

Daniels, J., concurred.

Judgment reversed.