text:
    John E. Blackman, App’lt, v. Elsworth L. Striker et al., Resp’ts.

      (Court of Appeals,

      Filed June 5, 1894.)

    1. Deed—Exception or reservation.
    An exception or reservation in a deed is to be taken most favorably to the grantee, and he should have the benefit of any uncertainty or ambiguity in the language.
    8. Same—Extent op grant.
    A deed must be held to convey all the interests in the lands which the grantor had, unless the intent to pass a less estate or interest appears by express terms or is necessarily implied in the terms of the grant.

      Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 28, 1892, which denied a motion by plaintiff for a new trial, overruled his exceptions and directed judgment in favor of defendants upon the verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion.

      George Hoadly, for app’lt; George Bliss, for resp’ts.

      Affirming, 50 St. Rep. 432.

   O’Brien, J.

This was an action to recover real property. The trial court directed a verdict for the defendants and the general term has affirmed the judgment entered on the verdict. The land which is the subject of the controversy is particularly described in the complaint, and is situated at the corner of Ninth avenue and Fiftieth street, in the city of New York. John Hopper the elder, who died in the year 1778, is the common source of title. He was the owner of a farm, in what is termed in his will and in subsequent conveyances, the Out Ward of the city of New York, which he devised to his five children and the descendants of a deceased child. The will directed that after his decease the farm should be divided into six equal portions by competent and disinterested persons, after having made,,a survey and chart of the farm and the several divisions. The parcels thus surveyed and mapped were to be so arranged, with reference to value, as to make all as nearly equal as possible, and then the devisees were to determine by lot which parcel should belong to each in severalty. This was to be done by numbering the six parcels on the map and placing each number upon a ticket, and, in the language of the will, each devisee was to “ draw one ticket, and the number thereon should be the number of the lot he or she shall inherit by the devise.’6 The drawing was to be done under the direction of the executors of the will. The children of the deceased child were entitled to draw and hold as tenants in common one of the lots so numbered. On the 4th of February, 1782, the devisees, including the guardian of the minor grandchildren, entered into an agreement in writing under seal, whereby it was agreed that the farm should be divided into lots on the east and west side of the Bloomingdale road, which ran through the property, that is to say, six parcels on each side of the .road, and it then provided that a parcel on the east and one on the west side should be matched and represented by a number on the map, and consequently by a single ticket at the drawing. The parcel which was designated on the map as lot No. 2 contained the family burying ground, a small plot surrounded by a fence, the area of which, for the purpose of this case, may be stated as about forty feet in width and eighty feet in length. This burial plot is supposed to be the identical land in controversy, and parcel No. 2, upon which it was located, was drawn by and allotted to Matthew Hopper, one of the sons. After the division and allotment of the six parcels between the devisees partition deeds were executed and delivered by all the parties in interest to four of the devisees, in wrhich the parcel so conveyed, is described in each case, but the record dors not show that any deed was ever executed to Matthew Hopper or to the minor grandchildren. Whether this results from the fact that no such deed was ever in fact executed, or that the conveyances, if made, have been lost without record does not appear. The absence of any proof of the execution and delivery of such deeds is not, I think, material on the question of title. The heirs of John Hopper the elder took title in severalty to their respective allotments of his estate by force of the devise to each contained in the will, the making of the map or chart directed by the testator, the execution of the agreement for the partition or division directed by the will, and the result of the drawing whereby each of the six shares were specifically described and located upon the farm. The evidence tended to prove, if it did not actually establish the fact, that the title and possession of that portion of the farm upon which the burying ground was located passed to Matthew under his father’s will. On the 17th of February, 1782, Matthew Hopper and wife conveyed by deed, with full covenants, to his brother John Hopper the younger, the parcel which had been assigned to him, it being described in this deed by metes and bounds, and by reference to the partition map or chart, where it was designated as lot No. 2. This deed, however, contained the following clause, which is the foundation of this action. After describing the land and enumerating all appurtenances, actual or reputed, this language is used : “Saving, excepting and reserving unto the heirs of the said John Hopper of the Out Ward, deceased, and to their and each of their heirs out of this present demise, all that certain burying ground now in fence consisting of forty-eight feet square parcel of the said lot of ground and commonly called the family burying ground, with free ingress, egress and re-gress into, out of and from the same to bury the dead, &c., forever.”

The plaintiff claims that under this clause the fee in the burying ground remained in Matthew Hopper and descended to his heirs, wlfo have conveyed to the plaintiff, while the defendant claims that the fee passed to John Hopper the younger, by the deed, subject to an easement for burial purposes, and to the defendant, one of his descendants. John Hopper the younger, grantee in this deed, died in the year 1819, having disposed of all his property by will. This parcel remained intact down to the year 1885, though no burials were made in the plot subsequent to "the year 1840. The defendant is one of the descendants of John Hopper the younger, and in an action of partition brought in 1885, a parcel of land, which included the burial plot, was assigned and allotted to him by the report of the commissioners and the judgment in the action. Immediately after this partition the defendant took possession of the land in question, removed the remains of the dead buried there, and the fence, and proceeded to erect an expensive building on the ground. The will of Matthew Hopper was admitted to probate September 25, 1784. There is nothing in it to indicate that he supposed he had, at the tiifie of executing the will, which was the same year in which it was admitted to probate, any interest in the land in question. He made no reference to it either by specific devise or general clause, and if he had any interest after the deed to his brother, he died intestate as to such interest. In the year 1889 his heirs conveyed to the plaintiff all the right, title and interest in and to all lands which John Hopper the elder died seized or possessed of in 1778, or which he devised by his will. The vital point in the plaintiff’s case is involved in the construction which should be given to the clause in the deed from Matthew to John Hopper, since he cannot succeed in the action unless it be held that the fee in the burial lot remained in the grantor and did not pass to the grantee. The learned counsel for the plaintiff contends that by the language of the deed the burial lot was expressly excepted from the operation of the grant and did not pass. It must be admitted that if the solution of this question depended entirely upon the language of the clause quoted, it would be very difficult to answer his argument. A conveyance of land, like all other instruments, should be so construed as to effectuate the intention of the parties to be ascertained from the language and all the surrounding circumstances. Thayer v. Finton, 108 N. Y. 394; 13 St. Rep. 778; Beach v. Crain, 2 N. Y. 86-93. An exception or reservation in a deed is to be taken most favorably to the grantee, and if there is uncertainty or ambiguity in the language, he should have the benefit of the doubt or the ambiguity. They should be taken most strongly and construed most strictly against the grantor whose words they are and against him who stands in his ¡dace, and if an advantage can be gained from an uncertainty or ambiguity in the words, the grantee or person standing in his place is entitled to the benefit of it. Grafton v. Moir, 130 N. Y. 470 ; 42 St. Rep. 373; Jackson v. Klock, 3 John. 375; Provost v. Calder, 2 Wend. 523; Jackson v. Butler, 8 John. 394 ; Ives v. Van Auken, 34 Barb. 566 ; Borst v. Empie, 5 N. Y. 39, 40; Duryea v. The Mayor, etc., 62 id. 592; 4 Kent’s Com. 468; Craig v. Wells, 11 N. Y. 315.

The primary rule of construction applicable to a clause in a deed in the form of an exception or reservation is to gather the intention of the parties from the words, by reading not simply a single clause, but the entire context, and where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered. Clark v. Devoe, 124 N. Y. 120; 35 St. Rep. 206. The deed mnst be held to convey all the interest iii the lands which the grantor had unless the intent to pass a less estate or interest appears by express terms or be necessarily implied in the terms of the grant. 1 R. S. 748, § 1. The grantor in framing the clause under consideration used the words “ excepting and reserving ” evidently without regard to their technical legal significance. Whatever,his intention was these words could not well be used together, since they express wholly different if not antagonistic ideas. Their meaning was thus tersely stated in this court by Judge Selden:

“ A reservation is always of something taken back out of that which is already granted, while an exception is of some part of the estate not granted at all. * * * A reservation is, never of any part of the estate itself, but of something issuing out of it, as, for instance, rent, or some right to be exercised in relation to the estate, as to cut timber. An exception, on the other band, must be a part of the thing granted or described as granted, and can be of nothing else.” Craig v. Wells, 11 N. Y. 315.

The exception or reservation was not in favor of the grantor himself, but in favor of the heirs of" his father. The language is “ unto the heirs of the said John Hopper of the Out Ward, deeeased, and to theirs and each of their heirs,” etc. The general rule is that a reservation or exception for the benefit of a stranger or a person not a party to the deed is void. Bridger v. Pierson, 45 N. Y. 603; Walrath v. Redfield, 18 N. Y. 457; Hornbeck v. Westbrook, 9 John. 73. The grantor, however, was one of the children and heirs of John Hopper, and it was competent for him to Reserve an easement for burial purposes for himself and the other heirs. The purpose of the right retained, whatever it was, is expressed in the last words of the clause, “ to bury the dead, etc., forever.” The real practical question is whether Matthew, by the use of these words, intended to retain in himself any beneficial interest in the land, or was it the intention of the grantor to convey all the estate that he had. The grant was for a valuable consideration, expressed in the deed to be £550 sterling, and the inquiry may be extended to John Hopper the younger, the grantee, whether he intended in making the purchase to acquire anything less than the whole estate which his grantor had. The agreement between the heirs which antedated the partition and the deed in question contains a provision which reflects much light upon these questions. After describing each of the shares to be represented by a number on the map or chart, it proceeds as follows: “ Whereas, on the lot number two there is erected a burial ground, and now inclosed with a good fence that the same, forever hereafter remain, continue and be for the family burying ground, and that whoever shall draw said lot of ground, and should jiereafter sell that, the said burying ground shall be reserved in the deed to the purchaser for the above-mentioned laudable purpose of burying, with full liberty to pass and repass as occasion shall require.”

The purpose of" this provision is plain. The heirs'intended that parcel number two should pass in fee to whoever drew it in the allotment, impressed with an easement for burial purposes. Matthew took it subject only to this easement which lie was bound by the-agreement to preserve in case he sold the share allotted to him. Matthew and John, grantor and grantee in the deed under consideration, were parties to this agreement. They understood its scope and purpose, and it is reasonable and just to presume that neither intended anything more by the clause in the deed than to carry out what had been provided for in the prior agreement There is no reason to believe that the parties to the deed intended that the grantor should retain any beneficial interest in the soil of the burying ground plot. Matthew was bound to reserve the right of burial for the heirs when he. sold the parcel. He was not bound to retain anything more; and the reasonable construction to be placed upon the grant is that they were-employed to limit the estate in the same way as it was held by the grantor. He intended to convey all he had and the grantee intended to acquire no less. This intention was not expressed in clear or accurate language, but as it is apparent from the nature of the transaction and from the circumstances, words and phrases used without a clear perception of their true meaning, must yield to what appears to be the intention. If we look at the conduct of the parties after the execution of the deed this view is confirmed. More than a century has passed since the conveyance and it does not appear that Matthew or any of his descendants made claim to any beneficial interest in the property, while John Hopper, the grantee, and his descendants evidently supposed that they owned the fee, only to an easement for the burial of the dead. In a case like this, where the defendant in possession has made valuable and expensive improvements upon the property on the faith of a title more than a hundred years old, the plaintiff is bound to make out a clear case. He cannot rest upon the words of the dead alone. A court must be fairly convinced from the language, read in the light of all the surrounding circumstances, that Matthew Hopper intended to retain in himself the fee of the burying ground, and that the beneficial interest so retained has vested in the plaintiff. A careful consideration of the whole case has not enabled us to reach that conclusion, but, on the contrary, after considering all that has been so forcibly urged by the learned counsel for the plaintiff in support of his view, and without invoking any arguments against the plaintiff’s claim except such as seem to be founded in reason, 'justice and law, we think he has failed to show any legal title to the property. It is unnecessary to examine the other questions arising upon the record and discussed by counsel, since a decision of them either way would not affect the result.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Andrews, C. J.

license: Public Domain

text:
    Mary Cluff, suing on her own behalf, etc., Resp’t, v. Henry S. Day et al., App’lts.

      (Court of Appeals,

      Filed February 6, 1894.)

    Appeal—Second—Law op case.
    Where, on a second, the facts are the same as on the first, appeal, the first decision, though made by the second division, will not be reviewed, in case no general public interest is affected by it, and the error, if any, is merely in the application of admitted principles to the circumstances of the case.
    Appeal from a judgment of the general term of the New York Superior Court, entered in favor of the plaintiff on an order overruling defendant’s exceptions.

      Chas. A. Collin, for app’lts; Edward B. Whitney, for resp’t
   Andrews, C. J.

This is a suit to charge the sureties on a bond of a nonresident executor with the sum adjudged by a decree of 6he surrogate of the city and county of New York, made in 1886, on an accounting b-y the executor, to be due from him to the estate of the decedent. The case has been twice tried, and this is the second appeal to this court. On the first trial the defendants had judgment in theirfavor, on the ground that a decree made by the surrogate on a former accounting, in 1873, changed the character in which the executor had mp' to that time hold the funds and property of the estate, and that lie thereafter held them in his character as trustee, and that the devastavit by-which, the property of the estate was wasted and lost occurred after the decree of 1873, and was, therefore, not covered by the undertaking of the sureties, which related only to the acts of the executor as such. The judgment of the trial court on the first trial having been affirmed by the general term, an appeal was taken to this court, and was heard before the second division, which reversed the judgment below, and ordered a new trial, 124 N. Y., 195; 34 St. Rep. 959. The judgment of the second division was placed'on the ground that the accounting and decree in 1873 did not terminate the executorial duties of the executor, or change the character in which he held the property, but that until the decree of 1886 he continued to hold it as executor, and not as trustee, and that, therefore, the sureties were liable for a failure of their principal to pay the sum adjudged against him by the decree on the second accounting. On a new trial a verdict was directed for the plaintiff for the amount adjudged by the decree of 1886, with interest. The general term, on appeal, affirmed the judgment "entered pursuant to the verdict on the second trial, and this appeal is taken from the judgment of affirmance. We arc-asked to review and reverse the ^judgments so rendered by the courts below, although they were rendered in precise conformity with the principles upon which the former decision in this court proceeded. It is insisted that the second division of the court erred in its construction of the decree of 1873, and in adjudging that the character in which the property was held by the principal of the défendants was not thereby changed. The facts were not changed in any material respect on the second trial. All the material facts bearing upon the liability of the sureties, presented by the present record, were in the record on the former appeal. The law of the case was determined after full argument and consideration by the second division of this court. It would be contrary to the general rule, and present an unseemly spectacle, for this court in the same case, between the same parties, upon substantially identical facts, to reverse a judgment rendered by a co-ordinate branch of this court upon a full understanding of-the facts and of the question of the law involved, even although, if the case was res novo, we might be of the opinion that the law of the case was erroneously adjudged.

The state has constituted courts of different grades for the ascertainment of public and private rights, and, to afford ah opportunity for the correction of errors, it has arranged a system of appellate courts, and has vested the final jurisdiction in this court. There is no exemption in any tribunal from the infirmities of human judgment. But the state has an interest that controversies in the courts should at some time come to end, and, when submitted to the final arbitrament, that the judgment rendered should be accepted as the final determination of the right in controversy. The court may proceed upon erroneous views of the facts or the law. But to permit the parties to an action to reopen a discussion on the law or the facts once deliberately determined by the court of last resort, on a subsequent appeal in the same case, on a suggestion of error in the former decision, would encourage litigation and diminish respect for judicial tribunals, which it is of the highest importance should be maintained. There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, evemdn the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised. Where, by inadvertence, a settled principle of law is supposed to have been overlooked, or a rule óf property violated, the court affords by its rules an opportunity to have its attention again called to the matter before final judgment is entered. If the party against whom the judgment is rendered omits to avail himself of this opportunity, or if, having applied for a reargument, the application is denied, and the case goes to. a new trial on the law as declared, the circumstances must be very unusual which would justify the court in reversing its decision, on a second appeal in the same case, and upon the same facts. The decision is a precedent upon the point of law involved, which the court may or may not follow in cases subsequently arising, but in the particular case it is “ more than authority; it is a final adjudication” between the parties. We are not to be understood as in any respect questioning the soundness of the decision on the former appeal. We decline to consider the question. It depended upon the construction to be given to certain acts and documents, all of which were before the court, and taken into consideration. It affected no general public interest, nor did it1 establish any doctrine in hostility to the previous law as declared by this court. If there was any error at all, it was in the application of admitted principles to the circumstances of the particular case. This court, following the general trend of judicial authority, has frequently refused to reconsider in the particular case its prior decision, on the ground that the parties were concluded thereby, and this rule has been followed where the first decision was by the commission of appeals. Oakley v. Aspinwall, 3 N. Y., 500; Justice v. Lang, 52 N. Y., 323; Terry v. Wait, 56 N. Y., 91; Joslin v. Cowee, Id. 626; Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y., 465, 477 ; 49 St. Rep. 840. The new points raised are not well taken, and do not require special reference. The judgment should be affirmed, with costs. Judgment affirmed.

All concur.

       Affirming 50 St. Rep. 941.


author: Earl, J.

text:
    Isaac Altman et al., as Administrators, etc., Resp’ts, v. Gabriel Wile, as General Guardian et al., Impleaded, etc., App’lts.

      (Court of Appeals,

      Filed February 6, 1894.)

    Executors—Release of sureties on bond.
    The guardian of a distributee cannot object to a release of the sureties on the administrator’s bond, when he is not harmed thereby.
    Appeal from a judgment of the general term of the supreme court, fifth department, reversing in part and affirming in part, a judgment entered on the report of a referee.

      William F. Cogswell, for app’lts; Norris Morey, for resp’ts.

      Affirming 46 St. Rep. 517.

   Earl, J.

A full and accurate statement of the facts of this case is not easy to make. I will, however, make a brief statement, sufficiently accurate and full for the present purpose. Sigmund Hofeller died at Buffalo, intestate, in January, 1875, leaving a widow, Schanette, and two children, Eli and Lily, both infants. Lehman Hofeller and the widow were appointed administrators, and Abraham and Japob Altman became sureties on. their administration bond. The estate left by the intestate was about $21,000, which was soon converted into cásh, and about $15,000 of it was loaned to Abraham Altman, with no security but his individual notes, and he became insolvent in August, 1881, without having paid the notes. Lehpian Hofeller became insolvent about the same time, and he died in December, 1886. Lily Hofeller died in 1877, and, thereafter, the estate of the intestate belonged equally to his wid.ow and his son Eli. The.widow married Gabriel Wile in January, 1880, and, in September, 1881, he was appointed guardian of Eli, and administrator of Lily’s estate, and gave the' requisite bonds in both capacities, with sureties. In February, 1888, Eli became of age. Jacob Altman died in November, 1881, and his administrators bring this action, and they have made parties defendant all the persons' in any way interested in the estate of Sigmund Hofeller, to wit: the surviving administratrix, the executors of the deceased administrator, Eli Hofeller and his guardian, and the administrator of Lily Hofeller’s estate. The plaintiffs allege, among many other things, that the defendants are, by collusive proceedings and accountings in the surrogate’s court, and by other manipulation of the assets of Sigmund Hofeller’s estate, trying 'to make the estate of Jacob Altman, deceased, by reason of his signature to the bond of the administrators of Sigmund Hofeller’s estate, responsible, substantially, for the whole estate which came to the hands of such administrators; and, that the real responsibility of Jacob Altman’s estate could be ascertained, they prayed, among other things, for relief in this action, that the administrators of Sigmur\d Hofeller’s estate, and that Gabriel Wile, as guardian of Eli Ho-feller, and as administrator of Lily Hofeller, should render their accounts, and that such accounts should be settled and adjusted. An interlocutory judgment was entered in the action, directing the accounting, and then a referee was appointed to take the accounts. The matter was brought to a hearing before the referee, and he made Iris report, in which he found, among other tilings, that Mrs. Wile, as administratrix, became responsible for the whole estate left by Sigmund Hofeller, and that she is accountable, as such, for $36,241.84; that she is entitled to credit against that amount for the sum of $34,869.94, paid to and received by Gabriel Wile, as general guardian of Eli Hofeller; that Mr. Wile, as such general guardian, is chargeable with the latter snin, against which lie is entitled to credit for the sum of $1,051.21, paid and expended for his ward, leaving a balance in Ids hands of $33,818.73 ; that of this amount there is due Eli, to be paid to him by his guardian, the sum of $18,120.21. Judgment was entered upon the report, settling the accounts as therein stated, and discharging and releasing the plaintiffs, as administrators of the estate of Jacob Altman, from all liability by reason of the administration bond. This conclusion was reached because Mrs. Wile, being responsible for the whole estate, and any devastavit thereof, could not enforce the administration bond against her own sureties for her own benefit; and, as to Eli Hofeller, because his guardian had received his share of the estate; and had become responsible therefor. From this judgment Eli, Gabriel, and Mrs. Wile appealed to the general term, and there the judgment was affirmed as to Mr. and Mrs. Wile, and reversed as to Eli, and a new trial ordered. The order of- reversal contains the following provision: “But that the settlement of the accounts ofSchanette Wile and Lehman Hofeller, as administratrix and administrator of Sigmund Hofeller, deceased, by the referee in this action, and the j'udgment therein, shall be of no force and effect, as against said Eli Hofeller, in the further proceedings in this action.” The general term seemed to reach the conclusion that the judgment was wrong as to Eli, because it discharged Mrs. Wile from responsibility for the estate of her intestate so far as, by her action or permission, that estate liad come to the hands of Gabriel as guardian of Eli, and thus confined Eli, for his share of the estate, to his remedy against his general guardian and the sureties upon his bond. So far as we are informed by this record, the case has not been retried as to Eli, and the appeal to this court is by Mr. and Mrs. Wile alone.

We are not concerned now with the rights or interests of Eli, and the attitude he may occupy upon the new trial, and his relation to the judgment which stands against the other two defendants. Ho one is here complaining of the judgment for him, and we are simply to determine whether there is anything in the judgment of which these appellants can complain. The defendants have no fight between themselves. The judgment grants no relief as between them, and they do not complain that any error has been committed or injustice done, as between themselves. They make common cause against the plaintiffs, and, upon the appeals to the general term and to this court, the plaintiffs are the sole respondents. Upon the argument in this court, no complaint was made of any error in the judgment affecting Mrs. Wile. The sole complaint was made on behalf of Gabriel Wile, and for him it was objected that he had, in the accounting, been •improperly charged with several items. We have carefully examined the record, and find sufficient evidence to sustain all the items thus objected tq but one, and that is an item of $3,320, interest, thereon, amounting to $1,659 90, making together the sum of $4,979.90. The learned counsel for the appellants claims that there was no evidence to charge Gabriel,'as guardian, with this item. The history of the item is as follows: In September, 1881, Lehman Hofeller, having become insolvent, executed a mortgage upon certain real estate for $3,320, to Isaac A. Wile, as guardian for certain minor children of Lehman ; and, at the same time, he executed a mortgage upon the same real estate for $15,-220 to Mrs. Wile, as administratrix, to secure the payment of the notes of Abraham Altman' hereinbefore mentioned; By the terms of this mortgage it was expressly made subject and secondary to the prior mortgage. The real estate mortgaged was worth about $6,500. Subsequently a judgment creditor of Lehman Hofeller commenced an action, among other things, to set aside the first mortgage, on the ground that it was fraudulent and void as to the creditors of Lehman Hofeller, and in that action it was found that it was without any consideration, legal or equitable, to Uphold it, ■as against the judgment creditor, and that it was void and invalid against its judgment. But it was found that the second mortgage was founded upon a good consideration, and was valid. The evidence shows that Mrs. Wile attempted to get a first mortgage upon the real estate, but that Lehman refused to give it, and would only give the second mortgage. The court, in the cred-' itors’ action, by its judgment, declared that the creditors should be subrogated to the rights of the first mortgagee. After the decision of that action, l\ut before the entry of the judgment therein, it appears that the claims of the judgment creditor were, with the consent of Mr. and Mrs. Wile, assigned to Wile, Brickner, and Wile, and thereupon the court, in its final judgment, ordered Isaac A.. Wile to assign the mortgage to them, to be enforced by them under the right of subrogation for their benefit. In pursuance of that judgment they foreclosed that mortgage and sold the real estate, and it is claimed that Gabriel, in some way, had the benefit of the amount due upon that mortgage, and that he should be charged with the amount of the same and the interest. Mrs. Wile, as the holder of the second mortgage, could not attack the first mortgage, as her mortgage was made expressly subject and secondary to it. The first mortgage was not void as to her, but was void as to the creditors of the mortgagor. They could assail it, and neither Mrs. Wile nor her husband-could defeat the right of such creditors to be subrogated to that mortgage. But Gabriel Wile was charged with the amount of that mortgage, and the in-terest due thereon, upon the theory that he and his wife'had, in the creditors’ action, voluntarily consented that the first mortgage, which had been declared void, should nevertheless be the -first lien, and have the preference over the second mortgage. But of this there is no adequate proof. The only evidence of such consent to which our attention has been called and which we are able to find in this record, is found in the decision made in the creditors’ action. There we find, in the findings of fact, as follows; “That the mortgage given to said defendant Schanette Wile, as administratrix, as expressed in the body of the mortgage, was given upon the understanding that the same should be a second and inferior lien to the said mortgage, given to the said Isaac A. Wile, as guardian as aforesaid, and in this litigation she recognizes that mortgage as a prior lien, and is willing it should stand, and be upheld as valid.” And, in the findings of law, as follows: “The said mortgage, given by the said Lehman Hofeller to the said Isaac A. Wile, as guardian as aforesaid, being without consideration, legal or equitable, to uphold the same, as against the plaintiffs’ judgments, is adjudged invalid and void as to the plaintiffs’ judgments, but as it is recognized as a superior lien to the said mortgage given to said Schanette Wile, as administratrix, etc., the plaintiffs are entitled to be subrogated to the lien of said mortgage given to the said Isaac A. Wile, as guardian, etc., as aforesaid, to the amount of said mortgage and interest.”

The language used in these findings does not show that the decision as to the first mortgage was based upon Mrs. Wile’s consent. She was bound to recognize that mortgage as a prior and superior lien, and, whether she was willing or unwilling, the judgment creditor was entitled to the subrogation. Her attitude towards the prior mortgage could make no difference, and no one can say, from the record alone, that it did make any difference. But, assuming that there was error in charging Mr. Wile with this item, the error was innocuous, and the relief granted to the plaintiff would necessarily have been the same if that item had not been charged to Mr. Wile. Deduct from the amount charged to him on the accounting this item of §1,979.90, and there will still remain a balance of $28,838.83,—larger by more than $10,000 than is needed to answer any claim of his ward; and thus it is clear that the plaintiffs were, with this item left oat, entitled to all the relief they obtained in this action, to wit: release, as between them and the appellants, from liability on the administration bond, and from actions by them based, thereon.

The judgment should, therefore, be affirmed, with costs against the appellants personally.

All concur.

Judgment affirmed.


author: Gray, J.

text:
    Abel A. Crosby et al., as Survivors, etc., Resp’ts, v. The President, Managers and Company of the Delaware and Hudson Canal Company, App’lt.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Appeal—Charge.
    The trial court may refuse to charge the jury as to the effect upon certain evidence, if certain other evidence is believed by them, and relegate the whole matter to the jury.

      2. Same.
    It may refuse to charge that the intent of one of the parties to a transaction determines its legal effect.
    3. Same.
    A charge that the intention, with which a thing is done, does not always control its legal effect, is proper.
    4. Question op pact — Sale.
    Whether a transaction under which the plaintiff came into possession of defendant’s lumber is a bailment or a sale, is a.question for the jury.
    Appeal from a judgment of the general term of the supreme court, third department, affirming a judgment in favor of the plaintiffs entered on a verdict.

      F. L. Wesibroolc, for app’lt; S. L. Stébbins, for resp’ts,

      Affirming, 49 St. Rep. 1.

   Gray, J.

This action which, for the third time, is brought to' our attention, was instituted to refcover the value of a quantity of lumber wrongfully taken and converted, as the plaintiffs allege, by the defendant. It had been transferred to plaintiffs by the firm of G. & E. Hamden in "payment of'an indebtedness. The Ham-dens were engaged in the business of boat building upon the Delaware & Hudson canal, and in November, 1882, had contracted with the defendant to build two canal boats, during the coming winter; for delivery in the spring. In pursuance of an order from them, the defendant, subsequently to the making of the contract, delivered at their yard lumber of the quality and quantity requested. The contract between the parties as to the building of the boats contained no obligation as to the ordering or the supplying of any lumber. When the lumber was sent, the-defendant forwarded to the Harndens one of their printed bills, or a memorandum with blank spaces to bo filled in by writing, headed: “ Rondout, N.Y., Nov. 24, 1882. Messrs. G. & E. Hamden to the Delaware and Hudson Canal Go., Dr.,”-—and thereinafter specifying the number of feet, the kinds, sizes, and prices of the lumber, and the sum of the indebtedness In December following, the Harndens failed, and applied their various properties towards the discharge of the claims of creditors ; transferring, as-it has been said, this lumber to the plaintiffs by means of a bill of sale.

The defendant, claiming to have always retained its ownership of the lumber, introduced evidence for the purpose of showing that the lumber had been furnished to the Harndens only to be used in the boats contracted for; payment to be made for it by deduction of its value from the price of the boats upon their completion in the spring. It was shown that it was the custom for the defendant to furnish its own lumber to boat builders generally ; but solely for the purpose of being used in the construction of boats it had contracted for, and with the understanding that its cost was to be taken out when the boats were paid for. The evideuce tended to show that this custom was known to the Ham-dens, and that, while in former years they had made cash payments for lumber obtained of the defendant, for some few years prior to this transaction, in November, 1882, they had maintained similar contractual relations with defendant in the building of boats, ordering lumber of the defendant for the purpose of being put into boats, and having its cost deducted from the contract price of the boats. The defendant has contended that the transaction between it and the Harndens in the furnishing of this lumber constituted a 'bailment, only, of the lumber, and not a sale, and that its title to it was never to be severed until the lumber was actually used in the construction of the boats. Upon the first trial the trial judge followed that view, and nonsuited the plaintiffs. When from that trial it came here, we held that, upon the evidence, whether it was a bailment or a sale of the lumber was a question for the jury to determine. We thought that the bill dr memorandum sent with the lumber was some evidence that the transaction was understood as a sale, and that the custom of the defendant in supplying its lumber was not necessarily inconsistent with a sale. 119 N. Y. 334; 29 St. Rep. 453. Upon a subsequent trial the plaintiffs recovered a verdict, and when the case came here again, upon the defendant’s appeal, the judgment was reversed, and a new trial ordered, because of error in the exclusion of evidence1 offered by the defendant in the testimony of the agent who sent the bill of sale or memorandum, however it may be termed, to explain the object or purpose in sendingdhat paper. 128 N. Y. 651; 40 St. Rep. 85. The agent was the company’s paymaster, whose duty it was to send out such bills or statements, and we held that his testimony to explain the meaning of the bill being sent to the Harndens wíjs not objectionable as an attempt to vary any contract between the parties, it had been made use of by the plaintiffs as evidence of an admission by the defendant of there having been a sale of the lumber; and being, by reason of its informal character, consistent with either that view, or with the view that it was merely a, statement advising the Harndens of what had been delivered under their order, and of what they would have to account for, it was proper that the defendant should have whatever benefit might result from an explanation by its agent of his object in sending it. Had the evidence, aside from this bill, established that there had been a sale, then the explanation of the purpose in sending the bill might have been improper. Such an instrument is usually deemed to be within an exception to the general rule of evidence, and for its informal and incomplete character, to be open to evidence in explanation and to throw light upon the contract between the parties,. See Phil. Ev. (Cow. & H. and Elw. Notes), 672. Harris v. Johnston, 3 Cranch. 311. Upon the last trial, the evidence of the company’s agent in explanation of the purpose of sending the bill in question was admitted, and was to the effect that it was sent upon this occasion to the Harndens as it hail been sent to them upon previous dealings, and, in accordance with the company’s universal custom, to other parties, “ as a memorandum of the lumber that they had, and as a memorandum of the amount that had to be deducted from the contract price of the boat when the company settled for it,” and that it was not sent for any other purpose. With that explanation of the company’s agent, in connection with some testimony by other boat builders that the company furnished lumber to all of them upon the same terms, and for the sole-purpose described by the company’s agent, the defendant’s counsel insists that the case was so complete for the defendant as to have made it the duty of the trial judge to decide the question, as one of law, in favor of the defendant, and to have nonsuited the plaintiffs. That the evidence preponderates in favor of the defendant’s contention as to what the transaction amounted to cannot be doubted, and, as we have said upon the previous occasions when the case was under review, we again say that the equities militate, and the evidence tends, strongly against the claim of the plaintiffs. It is difficult to understand how the jury could have come to the conclusion which they did upon any fair and conscientious consideration of the proofs; but we cannot say that the case had been wholly removed from their province, and, if not, then we cannot interfere with their decision of the issue. It does not follow that, with the evidence of the company’s agent in the case, however strongly supporting the company’s position, the plaintiffs were foreclosed from insisting upon the conclusiveness of the evidence relied upon by the defendant, or upon certain opposing.inferences being possible from ,the proof, and that it was the. province of the jury to consider and decide. Nor was anything else to be inferred from our previous opinion than that the evidence of the company’s agent was admissible in his behalf upon the issues, in view of the use made of this bill by the plaintiffs, and to explain the object in sending it. However convincing the evidence, to the ordinary mjnd, that the defendant was right in his contention, it cannot b.e said that the facts depended upon were incapable of another aspect, or that, from the circumstances out of which they grew, and which' bore upon the relations of these parties, it was impossible to infer that this transaction was not a sale of the lumber. It is the undoubted rule that in such actions the plaintiff must establish his title to, and right to the possession of, the propertj' alleged to have been wrongfully converted ; and this was undertaken pi this case. The Harndens were in possession of the lumber, and apparently, from the bill rendered, were indebted for it as upon a sale to them, and they had transferred it to plaintiffs by a bill of sale. It appeared that the Harndens had previously bought lumber of the defendant for cash,- and that, after an interview between a member of that firm and an officer of the company, the course of dealing was changed, and credit was given to them for lumber ordered and delivered. With lumber so obtained, boats of other parties were repaired, and there was no proof that any restrictions were imposed upon its use. Nor did it appear that anything was said or written as to the title to this lumber being only conditional in the Harndens. Though its cost was to be received by the defendant only when the boats were built, and then by way of deducting from the sum contracted to be paid for the boats, that was not necessarily conclusive upon the question of the ownership meanwhile, for the title to an article may pass upon a'credit sale, if such be the intention of the_ parties. Another circumstance was that the company was not bound to accept and to pay for trie boats until after inspection and approval; thus introducing another element of possible doubt into the question of title. All these circumstances, and some others of more or less importance, were open to the consideration of the jury, in connection with the form of the bill for the lumber sent by the company’s agent; and as it has been already intimated, however strong may seem the inference to our minds that there was only a conditional sale or a bailment of the lumber, a different Inference was permissible; so that, under the well-settled rule, the jury became the proper judges between the litigants, and their decision closes the dispute, in the absence of any errors committed in the course of trial which would authorize us to order a new trial.

The defendant’s counsel requested the trial judge to charge “ that if the jury find that the evidence given by Larter that the bill sent to the Harndens November 24, 1882, was sent only as a memorandum of the quantity and of the quality of the lumber, and its value, is true, the bill is not an admission that the lumber was sold to the Harndens,”—to which request he replied1-: “I decline to charge in those words, and will leave it as a question of fact, under all the evidence, for the jury to determine whether or not the lumber was sold.” We think there was no error in this. Larter was the company’s paymaster, and had testified that the bill had been sent as the previous ones had been sent, namely, as a memorandum to show the amount to be deducted from the contract price of the boats when constructed. The effect of that evidence upon the bill was for the jury to decide. It was not legal error for the court to refuse to say what would become of certain evidence if certain other evidence was believed; nor was the court bound to put the proposition to the jury, if we assume its truth, as it was formulated by the counsel. Conley v. Meeherl 85 N. Y. 618. Therefore, when, in his reply to the request, the trial judge simply relegated the whole matter to the jury, to be decided upon the evidence before them, he committed no error. In his charge he remarked that “ the intention with which a thing is done does not always control the legal effect of the thing done,” That is very true, and did not prejudice the defendant’s case. That object which one may propose to himself in entering upon some transaction often fails of its accomplishment by the operation and intervention of rules of law. The judge sufficiently explained the bearing of the remark. When subsequently, upon the request of the defendant’s counsel, he instructed the jury that the minds of contracting parties must meet to make a valid contract, that the question was one for the jury as to what the contract was, and that “if, from the circumstances, you are satisfied that it was the intention of both parties at that time that the title should pass,—that their minds met upon that,—the'n you may treat it as a sale; if, from the circumstances, you do not believe that the parties minds met, you may treat it as no sale,”—he made it clear enough what part intention played in the transaction of the parties, and there should have been no confusion in their minds about it.

The trial judge refused to charge “ that the intent of Larter as to the sending of the bill, * * * if Larter is believed by the jury, does determine the legal effect of the sending of the bill.” This was not-,error. As it has been said, Larter was following the usage in previous transactions, and though his own intention in sending the bill in that form may, nevertheless, have been to treat the matter as bailment, and the bill as a mere .memorandum, that could not control the real arrangement, if it was otherwise; and what that was the facts and circumstances, taken all together, must be considered and weighed, for the absence of any definite agreement upon the subject in words or in writings. We have scrupulously considered these and other1 rulings upon requests to charge, and upon the admission and exclusion of evidence, and we are not able to say that there exists any error which would justify us in permitting the defendant to submit its case to the chances of another trial. The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    Eugene Kelly, App’lt, v. Jay Gould et al., Resp’ts.

      (Court of Appeals,

      Filed February 27, 1894.)

    Deceit—What is hot actionable.
    A recommendation by one interested in the construction of a railroad that a proposition for construction be accepted, is not a representation on which an action can be maintained by a bank which cashes a draft drawn by contractors on the construction company.
    Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment dismissing the complaint as to some of the defendants.

      M. 1. Southard and • Thomas Ewing, for app’lt; Almon Goodwin and John F. Dillon, for resp’ts.

      Affirming 47 St. Rep. 5.

   Finch, J.

The foundation of this action is admitted to be an averment of deceit and false representation on the part of those who dealt with the bank, both directly and indirectly. That deceit had respect to the solvency of the Southern Construction Company, upon which the drafts were drawn which the bank discounted, and which were "protested for refusal of payment. The solvency of the company was not directly asserted, and no specific inquiry was made about it. The batik officers did not ask who were in fact its incorporators, what was the amount of its capital, how much of that had been actually paid in, or even whether it had, or had not, executed an actual contract "with one qr more railroad companies for construction. No such inquiries were made, but" the bank was led to believe, from what was said, that the construction company had commenced the grading of the new consolidated road"under the Mexican concession, and in so doing was backed and supported by Gould and Sage and other men of wealth and capital; that the money for the enterprise sought to be raised for the purpose on foreign exchanges had been in fact obtained, and that the home capitalists had promised to furnish at least an equal amount. These statements were made by Sampsell, one of the contractors, who had already closed an informal contract with the Southwest Company to build the road from Laredo south to Victoria, and had commenced work in advance of formal papers, in order to comply with the terms of the concession. The statement encouraged a belief in the solvency and financial strength of the Southwest Company, and was corroborated by the representation of Wathen, the engineer who drew the drafts, that they would be paid, and that the .new construction company was backed by the same parties who managed the older ones, and, further, by certain copies of papers which were produced and shown as evidence of the asserted facts. These papers, were, first, a proposition by Sampsell, addressed to Dodge as president of the American Railway Improvement Company, that if “the new company” would continue his present contract at the same prices to Victoria, and pay him the $13,000 due from the Oriental Company, and allow him to put his forces “ to work at once,” he would waive his demands for lay-off, and complete the work to Victoria in a reasonable time. Indorsed on the proposition appeared these words: “I recommend the acceptance by the new company of the inclosed proposition. [Signed] Jay Gould. R. Sage. U. S. Grant.” The second paper produced to the bank was a letter from Dodge to Gould, which indorsed Sampsell’s proposition, and gave it approval as being a “fair one.” Each of these papers bore the date of July 9, 1883. the third paper shown was dated the next day, was addressed to the contractors, and authorized "them to build to Victoria upon the terms of the original contract. It was signed “ George J. Gould, President Southwest Con. Co., per J. H. Work, Secretary;,” but the latter had no authority whatever to sign the president’s name to the paper, he at the time being in Europe, and wholly ignorant of the use made of his name. The fourth paper shown was dated J uly 12, 1883, directed to Wathen as chief engineer, and signed by Work as secretary of the Southwest Company. It ordered the engineer, when he drew for the contractor’s August estimate, to include the amount due from the Oriental Company. The fifth paper was dated a day earlier, and was a notification to the contractors that they had been awarded the contract for grading the Mexican Southern Railroad south to Victoria at certain named prices, the work to commence by July 14th, and was also signed by Work in the name of George J. Gould, but without authority. It was in reliance upon these papers, and the statements of Wathen and Sampsell, that the bank discounted the drafts which were protested. All the information which these two persons gave, so far as it concerned facts rather than mere opinions, was derived from Work. The proof tends to show that he did represent to Sampsell that the money had been subscribed abroad, and was to be supplemented by an equal amount from Gould and that the road was to be built by the parties interested in the two previously existing companies, which were to be consolidated for the purpose of utilizing the new concession. There was thus disclosed enough to raise a question of fact as to Work, for, while he had no direct communication with the bank, he set in motion, and was more or less responsible for, the> untrue and incorrect statements upon which the bank acted. The trial court so held, but dismissed the complaint as to the other defendants, and it is from that ruling, as it respects Gould, Sage, and Dodge severally, that this appeal is taken; and the question is whether they became responsible for the false representations which misled the bank.

It is not claimed that either of such defendants communicated directly with the bank officers, or ever knew of what was transpiring when the drafts were drawn, and it is admitted that the inducement to the discount came primarily from ■ Sampsefl and Work, so that the burden is on tlie plaintiff to connect- the defendants with the representations made in such manner as to attach a responsibility for their truth and liability for their consequences ; and to effect that it became necessary to show — First, that the defendants made false representations to Work and Sampsell; second, that they made them with the expectation and intention that Work and Sampsell should repeat them to the parties whose money was to be obtained; and, third, that the defendants knew the statements to be false. None of the defendants .made either to Work or Sampsell the alleged representations. None of them told Work, at any time or anywhere, that the funds sought in foreign markets had been obtained. Why should they ? The agency for that purpose was wholly in the control of Work, and all the knowledge possible was his. They said nothing about it relative to the facts occurring, because what information, if any, reached them, came from him as the author and manager of the scheme. Sage never uttered a word on the subject; Dodge does not appear even«to have known that such an effort was in progress, and all that Gould ever said was that, if six millions was subscribed abroad, he would add as much more to the enterprise. No one of the three said at any time, or to any person, or for any purpose, that the foreign money had been in fact secured. How much Gould may have known ' about the progress . of the negotiations abroad, how much he may. have been desirous of their success, or to what extent he may have aided ,in them, are matters open to discussion; but lie never stated their result, truthfully- or untruthfully, to anybody, or authorized, directed or encouraged such statement by Work. That fact was the one upon which the success or failure of the enterprise depended, and which must have been the chief reliance of the bank; but the falsehood, if it was uttered, came solely from Work, and no one else.

Nor did either of the three defendants in any manner assert the solvency of the Southwest Company, or authorize anybody to assert it, or contemplate the making of such a statement That company was organized by*Work as an Iowa corporation. He manned it with his own clerks, relatives, and friends. Prior to its organization the utility of forming such a company was admitted by Gould, at whose suggestion his son was named as president Gould and Sage undoubtedly encouraged its creation, and meant, if the capital sought could be obtained, to use it as the agency of construction ; but until then they had no responsibility for it, no control of it, and no interest in it. Gould and Sage touched it only once, and at a single point. Sampsell sent them a proposition to make a contract with the Southwest Company for construction. They had not asked him to do so, or said a word to induce him to such action. They had a right to believe that he had investigated for himself the character of the company with which he was seeking to contract, and was willing to take whatever of risk was inseparable from his conclusion. All they were asked to do was to influence the company, and not Sampsell. He had determined, but the former had not. Gould and Sage thereupon recommended to the company an acceptance of the proposition. Their statement was to the company, and to that only, and was advice intended solely for those to whom it was directed. It in no manner represented or asserted the solvency of the company. It was not asked for that purpose, or given with that intention,or contemplated to be used or to operate beyond its terms. It said, in substance, that, since Sampsell desired to contract with the company, the subscribers were content to have the company contract with 1dm. They said that, not as members of the corporation, but as persons likely in the future to become such members, and said it for the company to act upon it in the only usual and corporate manner, and with all needed terms and conditions. There was about it no representation of any fact bearing upon the responsibility of the company, and it is obvious that it was not contemplated or intended to influence any one except the company to which it was directed. Its aim and its office went no further, and ended there. But even this recommendation was not followed, and wlmt was done became an utter departure even from the advice tendered. Ho contract was in fact made. The plaintiff so argues. The company never acted, but Work, in the presence and with the knowledge of Sampsell, signed George Gould’s name as president to a temporary ami invalid agreement, and Sampsell took it to the bank, and presented it as honest and valid. With the fraud of Sampsell, neither Gould nor Sage had any connection, and were not even cognizant of it at the time. Fraud and deceit are to be proved, and there is no evidence here of any word or act on the part of Gould and Sage which made them responsible for the after and unknown and undirected action of Work and Sampspll.

The case is equally barren of proof as against Dodge. The only statement ever made by him was not one of fact, but of opinion respecting the future, which he honestly believed to be correct, and was entirely excusable for so believing. He did say to Sampsell that the parties interested in the old roads would build the new, and, with the facts known to everybody about the recent concession, the opinion expressed was natural and reasonable. But he represented no fact of any kind, and his dealing with both Sampsell and Wathen, the engineer, is open only the criticism that he fully believed that an event would occur in the future as to which he was too sanguine and hopeful. He deceived nobody, and misled nobody, by any assertion of fact which was untrue. He never said that the money was obtained for the enterprise, or that the new coihpany was solvent, or professed to have any knowledge of either fact. He had frankly stated his intention to go out of Mexico and discontinue his connection with operations there, and said quite enough to prevent a supposition that he represented anybody engaged in the further enterprise, or had information not common to all. His friendship for the engineer and for the contractors with whom he had previously been associated, and to some extent his own direct interest, led him to aásist each in an effort to retain their places under the changed conditions which Ije fully believed were about to occur, and he did so with somewhat more of confidence in the outlook than actual results justified; but he told no falsehood, misrepresented no fact, believed in the opinion which he expressed, and was not guilty in any direction of deceit or fraud.

I have not sought to follow the arguments made through their numerous details, or to refer to a great number of minor facts which appear in the recordbut there is one among them which deserves some further attention, and which is" the necessity, obvious to all the parties, of an immediate resumption of work bn the line in order to" save the concession. The inference deduced is that, when Sampsell’s proposition was brought to Gould, it showed on its face a purposed to begin work before the concession expired; that Gould knew of that purpose, and, knowing also that the whole enterprise was yet in doubt and not assured, should have warned Sampsell of his danger, and told him the truth. But Gould did not know that Sampsell was being at all' misled. There is no indication that the former suspected Work of having deceived the contractor, or of having stated to him anything but the truth. Gould was at liberty to believe that Sampsell, after due investigation, was willing to trust the, Southwest Company, and prepared, in view of -the possible profits, to take whatever of risk was involved in his proposition. Yery likely, at the moment, and in view of the existing indications, Gould himself thought that risk was slight, and the action of the contractor no more imprudent than occurs daily among careful men in taking business risks. But, in any event, Gould was not called upon to advise Sampsell, or to suspect that the latter was being misled or acting under a mistake as to the facts. Gould had not, either directly of indirectly, induced the proposition, or encouraged Sampsell to make it, or been called upon for advice on, the subject, and was under no obligation to seek him out and yrarn him against the possible risks of his offer. But I should not unduly prolong the discussion. I have read the case carefully, and am quite satisfied that the question involved was correctly determined.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Per Curiam.

text:
    Jacob Cohn, Resp’t, v. Charles A. Baldwin, Deft. Frank E. Baldwin, App’lt, et al.

      (Court of Appeals,

      Filed January 23, 1894.)

    1. Appeal—Discretion.
    An order of the general term, affirming an order of the special term denying a motion for a bill of particulars, which does not state the ground for the denial, is not reviewable in the court of appeals.
    '3. Same—Opinion op general term.
    The opinion of the general term may not be looked at to ascertain the ground.
    Appeal from an order of the general term of the supreme court, third department, affirming an order of the special term dedenying a motion for a bill of particulars.

      Mills & Bridqe (Charles B. Mills, of counsel), for app’lt; Mark Cohn, for resp’t.
   Per Curiam.

The defendants made a motion at special term .that the plaintiff be required to furnish their attorneys a bill of particulars of the claims set forth in his complaint. The motion was based upon the complaint and an affidavit of one of the defendants’ attorneys, and was opposed upon an affidavit made by the plaintiff. The court denied the motion, and its order was affirmed by order of the general term. It does not appear from the orders upon what ground the courts below proceeded in denying the motion. We cannot look at the opinion of the general term for that ground, and as they could have denied the mo'tion, in the exercise of their discretion, upon facts appearing, we must assume that is was so denied; and that we have no jurisdiction to review the exercise of their discretion has been held many times ■by this court. The appeal must therefore be dismissed.

All concur.

Appeal dismissed.


author: O’Brien, J.

text:
    Juan Luis Dammert et al., as Ancillary Executors, etc., Resp’ts, v. William Henry Osborn et al., App’lts. The Sociedad De Beneficencia De Lima, Resp’t.

      (Court of Appeals,

      Filed January 23, 1894.)

    1. Appeal—Reargument.
    The omission of the court, in its opinion, to notice'or comment on a fact or an authority deemed important by counsel, is no ground for a motion for a reargument.
    3. Will—Foreign—Domicile.
    It is immaterial, in determining as to the validity of a foreign will disposing of personal property, whether the testator was a. citizen of the country where the will was executed, or of the state; if the former was Mb domicile at the time of his death, its laws will control.
    ,3. Same.
    The courts of this state may not annul a disposition of personal property in a foreign will, valid by the laws &f the testator’s domicile, and distribute the property to claimants here, contrary to the terms of such disposition.

      4. Same.
    Where the heirs and residuary legatees had no interest in the property under the law of the testator’s domicile, a judgment awarding the property to a charitable corporation does not contravene the statute creating it, though it provides that their rights shall not be affected thereby.
    5. Same.
    If there is no law or public policy here which forbids the execution of the purpose that the testator had in view, the courts of this state will give effect to the disposition according to the law under which it was made.
    Motion for a reargument.
   O’Brien, J.

The defendant the Sociedad de Benejiciencia de Lima moves for a reargument in the case. It did not appeal from the judgment of the general term to this court, and the decision below did not confer upon it any right or title to the fund which the will of Jose Sevilla has donated to the founding of a charitable institution in New York. On the contrary, the supreme court refused, distinctly, to hold that this defendant had acquired any title or interest in the fund under the will, upon which alone its claim is based. As it made ho appeal from that judgment, it must be deemed to have acquiesced in the decision, in so far as it was adverse to its claim. The only standing that it had in this court at the argument was not as an appellant, but as a respondent, to sustain the judgment below, which held that the bequest in the will was void here, and that the fund should be remitted to Peru, the principal seat of administration. It has admitted in its answer that by the law of Peru, the domicile of the testator, the provisions of the will are valid; and, if so, it is somewhat difficult to see what it has to gain by remitting the fund to that country, when it is interested in such a question. Assuming, however, that it had the right to insist in this court that the judgmentbelow, though adverse to all of its substantial cliaims, should have been upheld, we are brought to the grounds upon which it asks for a reargument of the appeal. The motion assumes that various facts appearing in the record, and certain authorities upon the briefs, have been overlooked. The only ground, apparently, for this assumption seems to bo that they have not been specifically noticed or commented upon in the opinion. It would seem to be unecessarv, to state—what every member of the bar must know—that to do tliat would impose upon the court an amount o.f useless labor quite unreasonable to expect, and would swell opinions, which should only express the reasons of the court for its conclusions as concisely as possible, into essays on each subject involved in the appeal., It does not follow that, because a fact or an authority deemed important by counsel has not been noticed or commented upon in the opinion, it has not been considered, and due weight given to it, in arriving at the decision. In many cases facts incorporated in the records and discussed at length by counsel, are considered by us wholly unimportant; and authorities from which long quotations are made, inapplicable. This motion will serve as a good illustration of this remark. The first ground mentioned is that we have overlooked the fact that the testator was a citizen of the United States and of this state. It was not overlooked, but we did not consider the fact as of the slightest importance, and do not now. Moreover,' the learned counsel who makes the motion nowhere in -his brief attempts to show how it is. It was considered in the pleadings and on the argument that the testator was at the time of his death domiciled at Lima, in Peru." The will was made and proved there, and from the beginning to the end of the argument it was conceded to be, what it certainly was a Peruvian will. It was utterly immaterial, therefore, whether the testator was a citizen of this country, or of Peru, or a subject of some other country. The domicile of the testator was the important fact, and there was no dispute about that, and is none now. Sometimes the domicile of a party becomes an important question of fact, and then the fact that he is a citizen of some other country, or has a residence there, bears upon the inquiry; but said facts have no significance whatever in a case where the domicile is fixed by the admission of the parties, as it has been in this case.

The next ground for this motion assumes that wo have omitted to notice that the statute incorporating the Sevilla Home contains the following provision: “Nothing herein contained shall affect the rights o£ any parties to an action now pending, or any heir at law or residuary legatee of said Jose Sevilla, deceased.” It was not overlooked, but, on the contrary, we held that any right which had vested in the defendant or heirs, next of kin, or legatees, could not be affected by the act. But it was not claimed that any such right had vested or could vest under the law governing the will, and the concession that the dispositions in favor of the Sevilla Home were valid under that law implied just the contrary. If this were valid, as thus admitted, how could the fund vest in other parties, except for the charitable purposes contained in the will? The learned counsel is certainly mistaken in supposing that this provision of the statutes limited the parties to such rights, only, as they had before it was passed, or at the commencement of the action. If this were so, then the legislation would have no practical effect whatever. It conferred additional power upon the trustees, because it converted them into a corporate hotly, with capacity to take and adminster the gift. The corporation did not exist when the action was commenced, and became a party after the statute was enacted, by supplemental process and pleading ; and its rights and interests then related back to the will, and to the time of the testator’s death. This provision of the statute simply means that the interests, if any, which vested in heirs, next of kin, or legatees upon the death of the testator, or subsequently, should not be affected, and, as they had no interest under the law of the domicile, the judgment does not contravene the statute.

The other grounds stated in support of the motion are that we have overlooked certain authorities in support of the position that the rights of the -defendant are to be determined by the law of this state. We think that none of the cases referred to hold that a valid disposition of property at the domicile of the owner may be declared void by the tribunals of another country, where the law is different, and the title adjudged to be in another. The contrary was held in the ease of Cross v. U. S. Trust Co., 131 N. Y. 342; 43 St. Rep. 254. Had Mr. Sevilla died intestate, this defendant could not take any part of his estate; under the intestacy laws of this state, or those of Peru ; so that it is in the attitude of insisting that this is a valid will,—at least, to prevent intestacy. But it also insists that by the will it was to take this fund in case certain conditions there mentioned existed. The courts below, however, have 'refused to find that any of these conditions did exist, or that the defendant is, under any circumstances, entitled to the fund; and, by not appealing form that part of the judgment, it has acquiesced in it, and elects to come to this ¿ourt as a respondent in support of a decision that simply remits the fund to Peru,—a result that does not help the defendant’s contention unless it can procure a more favorable judgment under the laws of that country, which is not suggested. The fundamental rule that pervades all the reasoning of the learned counsel on this.subject is to be found in the assumption that the courts of this state can annul a disposition of personal property in a foreign will, valid by the law of the domicile, and distribute the property to claimants here, contrary to the terms of such disposition, as interpreted by the law under which it was made. No controlling authority can be found in support of such a proposition. When our courts cannot give effect to testamentary dispositions of property in foreign wills without violating our laws or public policy, the property should be remitted to the jurisdiction of the domicile, to the end that it may adminster its own laws. But, if there is no law or public policy there that forbids the execution of the purpose that the testator had in view, then our courts will give effect to the disposition according to the law under which it was made. We are still of the opinion that the legislature intended to and did remove all these objections, and so changed our laws and public policy, so far as they were ever in the way, with respect to this particular bequest, as to permit, if not require, our courts to give effect to the testator’s purpose. The motion should be denied, with $10 costs. All concur. Motion denied.


text:
    In the Matter of the Judicial Settlement of the Account of Henry B. Bolton et al., as Executors, etc. Henry B. Bolton et al., Resp’ts, v. Sarah L. Myers et al. App’lts.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Jurisdiction—Court of Appeals.
    On appeal from, a judgment of the general term affirming a surrogate’s decree on the settlement of the accounts of executors, the jurisdiction of the court of appeals is limited to questions of law presented by proper exceptions.
    3. Executors—Accounting—Deficiency judgment.
    An executor should not be charged with the amount of a deficiency judgment, recovered by the decedent on a mortgage given to her without consideration by her insolvent husband, merely to save his land from his creditors.

      3. Same—Property sold at' auction.
    The facts were held sufficient, in this case, to justify the surrogate in refusing to charge the executor, for the estate property, a larger sum that was obtained therefor at the auction sale.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a surrogate’s decree settling the executor’s account.

      James B. Marvin, for app’lts; A. Oldrin Salter (Alexander Thain, of counsel), for resp’ts.- -

      Affirming 54 St. Rep. 755.

   Earl, J.

Upon the accounting of the executors of Ann Bolton, deceased, Mrs. Myers and Mrs. Littlewood, her daughters, appeared as contestants, and filed objections to the accounts rendered. Thr decree of the surrogate was adverse to them, as to various items, and we are now to determine whether any of their overruled objections were well taken.

Our jurisdiction is more limited than that of the surrogate and of the supreme court, as we can consider only questions of law presented for our consideration ,t¡y proper exceptions. While, after careful examination, we find no error of law in this record, we are not without some misgivings that injustice may have been done to the contestants in the settlement of the accounts, but we see no remedy for it here. Mrs. Bolton died in November. 1882, leaving two sons, the executors, two daughters, and an adopted son, William H. Birchall. From a period anterior to 1880 down to the time of her death, she owned certain real estate occupied by a manufacturing establishment, upon which, for many years, the business of bleaching, dyeing, and printing had been carried on. On the 1st day of March, 1880, she leased to her two sons and adopted son this real estate, with all the machinery thereon, for the term of ten years, for an annual rental, and they carried on the business there under the name of the Bronx Company. Shortly before the expiration of the lease, the real estate was talren by the city of New York, by condemnation proceedings, for the Bronx park, and an award was made therefor to the owners thereof, which was paid and distributed. The lessees continued to occupy the real estate and the machinery until a short time before August 31, 1891, when they were ordered by the city to surrender the possession of the real estate and remove the machinery. They then advertised, and on that day sold by auction, the machinery belonging to the estate of the deceased, for $592.82. Most of the machinery was purchased by Mr. Birchall, and thereafter taken to West Farms, a distance of two or-three miles, and there put into other buildings, and used in the same business by the Bronx Company.- It was claimed before the surrogate, and is now claimed by the contestants, that the machinery, at the time of the sale, was worth over $52,000; that the sale thereof was improvident; that the machinery was really purchased by the Bronx Company, and for it, by and through Birchall; that the Bronx Company had had the benefit of the purchase; and that, therefore, the executors, who were two of the three members of the Bronx Company, should be charged with the value thereof. We .are inclined to think that, as matter of justice, the executors should be charged with a larger sum for the machinery than it brought at the auction sale. But there was really no reliable basis in the evidence before the surrogate for doing it. The sale is not attacked for fraud. It was extensively advertised in newspapers, and by printed notices and catalogues. Notices of the sale were mailed to the contestants and their- counsel, and there is no evidence that they did not receive them. There can be no doubt that the executors meant to give, and did in fact give ample notice of the sale. At the sale there were present from 50 to 75 persons; among them, several dealers^ in secondhand machinery. The sale was fairly conducted by a competent and experienced auctioneer, and there is no charge that any artifice was used by any one to stifle competition among bidders, or that the machinery was not sold in parcels, and in such manner as to bring the best price. There was competition among bidders, there being more than one bid for each article sold. Mr. Birehall, at the auction sale, purchased most of the machinery, and some was bid off by others. Of the articles so bid off. he subseque^ly purchased some at an advanced price, and some of it was retained by such bidders. While the evidence is not entirely clear upon the subject,fit is quite convincing that Birchall paid for the machinery with the money of the Bronx Company, and that the machinery was removed to West Farms, and most of it there placed in buildings, at the expense of that company, and for its benefit, and that it has since been used by that company in its business. Now, what could the executors have done better? They, for their own protection, were bound to sell by auction, and they made the best sale they could. They were not requested to postpone the sale, and no protest was made against it. So far as appears, they had no reason to suppose that the contestants objected to the sale at that time and in that way, or that better prices could be obtained by postponing the same to some future time. As to the value of the machinery, evidence was given that, at the time the real estate was appraised in the condemnation proceedings, two witnesses were called by the exe.'cutors, as claimants there, who testified that the machinery was worth about $52,000, and one of the same witnesses was called by the contestants before the surrogate, and testified that at that time the machinery was, in his opinion, worth that sum. But his estimate was that it was worth that sum in position in the buildings, and in use there, in a large, established and prosperous business. But he did not estimate its value to be sold there and removed, and used or resold elsewhere. It is common experience that machinery sold in a mill, to be removed therefrom, will usually bring but a small sum,-—far less than its 'intrinsic value. That is because generally it is difficult to find purchasers for such machinery, and hence the absence of real competition keeps down prices. The experienced auctioneer who made, the sale testified that, was heavy machinery; that it was located at a place from which it was difficult of transportation; that he judged, from the location of it, and the character of a great deal of it, which was very old, that it brought about all it. was worth; that there was nothing sold on one bid; that he saw a number of dealers in second-hand machinery there. There was the further difficulty in charging the executors with any par-, ticular value for this machinery, that it did notappear precisely what machinery was put to use in their manufacturing establishment at West Farms, nor what was the approximate value of that machinery, at the time of the sale, for removal from the place where it was. Taking all these fa'cts, with the testimony of the auctioneer as to value, and the evidence of the value furnished by the sale, made as it was, we cannot say that the surrogate erred, as matter of law, in refusing to' charge the executors, for the machinery, a larger sum than they obtained therefor at the auction sale. We think it would be impossible now'for any one to take all the evidence in this record, find fix a value which ought to be paid upon 'the machinery taken and in use by the Bronx Company, over and above that obtained therefor at the auction sale.

Thomas Bolton, Sr., for the purpose of protecting his real estate against his creditors, executed a mortgage thereon, without any consideration, to Mr. Birchall; and he immediately assigned that mortgage, without any consideration, to Mrs. Bolton, the deceased. The mortgagor died in January, 1879, leaving a will by which he gave all his property to his wife, Ann Bolton, and he appointed his son, Henry B. Bolton, his executor. After his death, Ann Bolton, for the purpose of cutting off the creditors of her husband, foreclosed that mortgage; and upon such foreclosure, and the sale in pursuance thereof, she obtained against Henry B. Bolton, as executor of his father, a deficiency judgment of upwards of $20,000. Her executors made no attempt to collect that judgment, and hence the claim is made that they should be charged with the amount thereof. Assuming that the judgment was enforceable against the estate of the mortgagor, it is a sufficient answer to this claim that there was no proof that the judgment was collectible, or worth anything, inasmuch as the mortgagor died insolvent. There was, therefore, no basis for making any charge on account thereof against the exedutors.

The Bronx Company were the brokers and financial^ agents of Mrs. Bolton, and the executors claimed credit upon their accounting for divers sums of money paid for her in her lifetime, and the contestants objected to the allowance of many of these items. The answer to these objections is that there was evidence quite satisfactory that all these payments were made at the request of Mrs. Bolton.

What we have thus far said covers the principal points made by the appellants upon this appeal, and a'careful examination of the whole case brings us to the conclusion that there was no legal errors committed by the surrogate, to the prejudice of the appellants, and that the judgment must be affirmed, with costs.

All concur, except Bartlett, J.: not sitting.

Judgment affirmed.


author: Herrick, J.

text:
    Zoe Neddo, App’lt, v. Village of Ticonderoga, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Negligence—Contributory—Municipal corporation.
    Ia an action against a village for personal injuries, it is necessary for the plaintiff to show the absence of contributory negligence on her part.
    2. Same—Presumption.
    The presumption which a traveler may indulge that the streets of a village are safe, has no application where the danger is known and obvious.
    3. Same.
    Where, in such case, she did not exercise any more care or take any greater precaution in walking over the defective place than she did over the other part of the sidewalk, she is guilty of contributory negligence.
    Appeal from a judgment óf nonsuit.

      Smith & Finn (.Francis A. Smith, of counsel), for app’lt; McLaughlin & Rowe (G. B. McLaughlin, of counsel), for resp’t.
   Herrick, J.

The sidewalk on Lake George avenue, a street in-the village of Ticonderoga, was a plank walk about 4 feet wide; and, at the point where the accident happened which gives rise to-this action, a section of said plank walk, some 13 or 14 feet in length, had been taken up, to 'enable wagons to cross, carrying-stone and building materials for the erection of a building upon a lot in front of which the said plank walk had . been removed. From the top of the sidewalk to the earth where the plank walk had been removed was a space of some eight or ten inches. The grade of the street at that point was descending, and it also sloped from the sidewalk towards the street. The soil was clay. The crossing of loaded wagons over the sidewalk where the planks had bgen removed cut it into ruts. Upon the day of the accident, it Had been raining, and the .clay was wet and slippery. The plaintiff had passed back and forth several times a day fora number of days prior to the accident, over the sidewalk where the planks had been removed. On the afternoon of the 15th of August tlfé plaintiff, in company with several other females, was returning to her home from the place where she was employed, by way of the sidewalk in question. She stepped from the plank sidewalk onto that portion of the sidewalk from which the plank had been removed, took one or two steps,, slipped in the clay, and fell to the ground, and sustained injuries for which she seeks to-recover damages in this action. At the close of the testimony the court granted a motion for a nonsuit, and from the judgment entered thereon the plaintiff appeals to this court.

To maintain her action, it is necessary for the plaintiff to show the absence of contributory negligence on her part. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493. The burden of proof was upon her, and she is not entitled to the benefit of any presumption to establish lack of negligence on her part; and, where the circumstances point as much to negligence as to its absence, she is not entitled to recover. Wiwirowski v. L. S. & M. S. Railroad Co., 124 N. Y. 420; 36 St. Rep. 405; McDonald v. L. I. Railroad Co., 116 N. Y. 546-550 ; 27 St. Rep. 481. In this case there seems to be an entire absence of evidence of the lack of contributory negligence on the part of the plaintiff. She knew of the absence of the plank sidewalkshe had passed over it repeatedly, several times a day, for some days before the happening of the accident; at the time of the accident, it was broad daylight ; and yet she went upon this rough, slippery ground, the same as if it was an ordinary sidewalk. “The presumption which a wayfarer may indulge that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.” Weston v. City of Troy, 139 N. Y. 281-285; 54 St. Rep. 493. When a person approaches a point of danger, it is his duty to do so with a care and caution commensurate with the dangers of the locality. There is no evidence in the case, either from the plaintiff herself, or from any other witness, to show that plaintiff exercised any care, or took any precaution, or in any way walked, or attempted to walk, over the place in question, in any different manner from what she did over the sidewalk that had not been removed. ■ The only evidence that I have been able to find bearing upon the subject is the following, from Grace Moses, one of the plaintiff’s witnesses:

Q. How were you walking ? A. We were walking single file when she fell. Q. At what rate were you walking ? A. We wasn’t walking very fast. Q. An ordinary walk ? A. Yes, sir. Q. Describe how you were walking? A. We were walking just as we naturally walk. We were coming home from our work, and we were walking as we would naturally walk. That is all.”

And again, upon the cross-examination: “Q. What discussion did you and the girls have, if any, in reference to this place, in going across it? A. We knew the mud was slippery, and we went across very carefully. Q. Was that talk between you and Miss Heddo and the girls ? A. Ho, sir; it was not talked, but I had it in my mind.”

The plaintiff, upon her examination, testified as follows •„ Q. How were you walking ? A. Single file. Q. How fast were you walking? A, Hot very fast; as usual. Q. An ordinary walk ? A. Yes, sir.

From this testimony, I fail to see that there is any evidence showing a lack of contributory negligence, or any fact disclosed from which tliQ jury could infer a lack of contributory negligence, on the part of the plaintiff, and a lack of such evidence is fatal to the plaintiff’s cause of action. What the witness Moses “had in her mind,” as she expressed it, had nothing to do with the plaintiff, and has no bearing upon the question of plaintiff’s conduct.

The judgment should be affirmed, with costs.

All concur.