author: Mullin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THOMAS H. PETTIT and others, Respondents.

      Disordmiy person — bond given by (3 B. 8. [5th ed.], 903)—nature of—liability under.

    In this action, brought by the people upon a bond, given by the defendant in pursuance of 3 Revised Statutes (5th ed.), 903, conditioned for the support of his wife, the plaintiff was nonsuited on the ground that, although defendant had neglected to support his wife, yet, as she had supported herself, and the county had not been put to any expense therefor, the plaintiffs were not entitled to recover. Seld, that this was error. The bond required by the statute is not a bond of indemnity to the town or county to repay such sums as either may have advanced for the support of the family, but the amount named in it is a penalty imposed for the neglect to support the wife.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      A. L. Johnson, for the appellant's.

      Isaac D. Garfield, for the respondents.
   Mullin, P. J.:

The defendant Pettit was proceeded against under section 1, of 2 Revised Statutes (5th ed.), 903, as a disorderly person, for having abandoned and neglected to support his wife and child; and he was adjudged by a justice of the peace to be a disorderly person for the cause aforesaid. After the adjudication, defendant entered into a recognizance with two sureties, in the sum of $500 each, that the defendant should be of good behavior for the space of one year, and he was discharged.

The defendant continuing to neglect to support his family after said recognizance was entered into, an action was brought thereon in this court to recover said sum of $500. On the trial before a referee, the defendant’s wife was examined as a witness, and testified that she had supported herself and children since the recognizance was given. ISTo evidence was given that the people had paid anything toward the support of any of defendant’s family. It was proved on the part of the defense, that defendant had made' an arrangement to board his wife and children at his father’s house, where he himself boarded, and that he had, on repeated occasions, requested her to go and live with him, but she refused to do so. She testified that defendant’s father got drunk occasionally, and when drunk, was violent and abusive; that she and his mother did not agree; and a girl Was employed in the family, with whom the wife had seen defendant take indecent liberties. The occasional drunkenness of the father was admitted by defendant, but he denied that he had taken liberties with the girl.

The referee found, as facts, the entering into the recognizance, and that defendant’s wife had supported herself and family without assistance from the defendant; and he held, as matter of law, that the recognizance was in the nature of an indemnity bond to the town or county against the support of the wife and child, and that the refusal of defendant to furnish support after the recognizance, was immaterial to the issue, and he therefore nonsuite,1 the plaintiff.

The referee having found nothing on the subject of the provision made by the defendant for his wife and child, and of her refusal to accept it, we must assume that he held her justified in refusing, as it seems to me she certainly was, if her evidence is to be credited.

The question is, is the referee’s conclusion of law correct, that there could be no recovery on the recognizance, as the public authorities had not supported the wife or child ? The law imposes upon the husband the duty of providing for the support of his famliy, and the neglect to do so is a violation of law, and renders him liable to be treated as a disorderly person. It is wholly immaterial who furnishes them with support, so long as he does not. It is his omission to perform his moral as well as legal duty, that constitutes the violation of the statute. If there could be no recovery on the recognizance unless the town or county had been subjected to expense, the law would operate most harshly when the relatives of the wife are able to support her, and would much prefer to do so to allow her to be treated as a pauper, and forced, as she and her children might be, into the poor house. If such is the construction of the statute, worthless husbands will be relieved altogether from the support of their families, and their support be transferred to the relatives of the wife. I cannot believe that any such result was ever contemplated; and a construction of - the statute that would lead to such a result, ought not to be given to it unless it will bear no other. Instead of treating the recognizance as in the nature of a bond of indemnity to the town or county to repay such sums as either may have advanced for the support of the family, the amount named in it should be held to be a penalty imposed for the neglect to support. Such must have been the view of those who framed the statute. The whole amount is forfeited for the neglect to support, however short the time may be, and it is to be paid into the county treasury, to be applied to the support of the poor. In cases in which the support of the poor is a town charge, no share of the money paid can be recovered by the town, to compensate for whatever may have been paid by it for the support of the family.,

There are many cases in which the penalty for a violation of law is required to be paid into the county treasury for the benefit of the poor. I am unable to distinguish the sum collectible under the recognizance in this class of cases, from the penalties in the eases just referred to. The penalty is imposed not for the purposes of indemnity, but by way of punishment. The object is to compel the husband to support his family, or pay the penalty incurred by his neglect, or, doing neither, to be imprisoned until he shall consent to obey the law. If the sum named in the recognizance, is to be treated as indemnity, a recovery should have been permitted from time to time, to reimburse the town or county for moneys advanced; but there can be but one recovery upon this instrument, and, as has been suggested, that recovery may be had upon refusal to support at any .time after the recognizance is given. Section 29 of 2 Statutes at Large, page 507, provides that it shall not be necessary to allege or prove any damages by reason of the breach of the recognizance; judgment is to be entered for the penalty.

The referee erred in nonsuiting the plaintiff. The judgment must therefore be set aside, and new trial granted, costs to abide the event.

Present—Mullin, P. J., Surra and Gilbert, JJ.

Gilbert, J., dissented.

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


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE ex rel. JOHN W. BRIDENBECKER, v. AMOS H. PRESCOTT, County Judge., etc.

      TForectoswe by advertisement—notice in — w7iai must contain—Bxecutors not assignees.

    On a mortgage foreclosure by advertisement, it is not necessary to state in the notice that the subscribers have lawful right or authority to foreclose. Executors and administrators are not assignees, within the meaning of that term in section 4, 3 Revised Statutes (5th ed.), page 859.
    A notice, signed by the executors, with the addition of the words, executors, etc., after then names, is sufficient.
    Certiorari to the county judge of Herkimer county, to bring up for review proceedings had before him to remove the mortgagor from the mortgaged premises, after sale on foreclosure by advertisement, by the executors of the last will of the mortgagee.
    The return of the county judge sets out an affidavit presented to him by David Stroup, setting forth that, on 1st December, 1874, John W. Bridenbeeker was owner of certain lands and premises in the town of Frankfort, in said county of Herkimer, described in a notice of sale in foreclosure of a mortgage, given by said Bridenbeeker and wife to Jacob J. Folts, to secure the payment of $3,000, and which mortgage bore date the day and year last mentioned; that it had been duly recorded; that Folts'died before the foreclosure of said mortgage, leaving a last will, in and by which he appointed David Lewis, James Folts and Daniel V. Folts executors, which will was duly proved and recorded, and said executors duly-qualified, and were acting; that default was made in the-payment of the mortgage debt, and the mortgage was duly foreclosed by advertisement, a copy of which was annexed ; that it was published for twelve weeks in a newspaper in said county ; that on the day, and at the place designated in the notice for the sale of said premises, the same were sold at public auction and bid in by said Stroup, and he was the legal owner thereof; that the affidavits that copies of said notice of sale had been duly served on the persons entitled thereto, and of the posting and recording of said notices, were duly made and recorded prior to the demand of possession of said mortgagee; that such demand was made, on the ninth day of July, of said Bridenbecker, who was then in possession, and he refused to surrender possession, and remained in possession without the consent of the purchaser. The notice of sale is in conformity to the provisions of the Revised Statutes relating to the foreclosure of mortgages by advertisement, and is signed by Lewis, and Daniel and James Folts, who also annex to their names the words, Executors of the last 'will and testament of Jacob J. Folts, deceased.”
    The county judge returned a sumrpons issued by him on receiving said affidavit, reciting the said affidavit, and requiring the said Bridenbecker to remove forthwith from said premises, or show cause before said judge, at his office, on the 17th of July, 1874, at ten o’clock a. m., why possession of said premises should not be delivered to said Stroup. This summons was duly served, and, at the time and place for showing cause specified in said summons, Bridenbecker appeared, and, by his counsel, insisted that the proceedings on the part of Stroup were irregular, for the following reasons: 1st. The proof of service not sufficient. 2d. The facts necessary to constitute a legal foreclosure or lawful sale,- as required by thb statute, are not sufficiently stated or shown. 3d. The notice of sale in the foreclosure proceedings, do not state or show that the subscribers to the notice had any lawful right or authority to foreclose the mortgage or make the sale. 4th. The addition of the words, “ Executors,” etc., is only descriptive of the person. The objections were overruled, and defendant’s counsel excepted.
    Bridenbecker then presented to the county judge an affidavit denying nearly all the matters stated in the affidavit of Stroup, and thereupon the parties proceeded to the trial of the issues thus joined. Stroup’s counsel offered in evidence the affidavits of the publication of the notice of sale ; of the service of copies thereof on the parties entitled thereto; of the sale; of posting; and of recording a copy of the notice.
    The counsel for Bridenbecker objected to this evidence: 1st. That the facts are not alleged or stated in the affidavit on which the summons issued, or in the summons. 2d. They are not evidence as to the facts not alleged in- the summons and affidavit. 3d. The affidavit of publication itself, shows less than twelve weeks’ publication — less than eighty-four days. The objections were overruled, and defendant’s counsel excepted. The plaintiff then put in evidence the mortgage which had been foreclosed.
    It was admitted that Bolts, the mortgagee, died 9th August, 1873, leaving a last will, which was duly proved, appointing the persons hereinbefore named executors thereof, who duly qualified. It was also admitted that the executors made the foreclosure, and directed the proceedings, and that, on the eleventh April, the notice of sale was duly served on the defendant. The defendant’s counsel then moved to dismiss the proceedings, because the notice of sale was not published twelve weeks; the affidavit of filing the notice of sale should have been made by the clerk, and not by Marsh; the sale was not made by the executors. The motion was denied, and defendant’s counsel excepted. The plaintiff then testified that he attended the sale; that James Bolts, one of the executors, was there; and that he did not see either of the others. The defendant then proved that proceedings had been heretofore instituted to remove Bridenbecker, and that they had been dismissed on the motion of defendant’s counsel, on the ground of defects in the affidavit upon which the proceedings were instituted. The defendant’s counsel then moved to dismiss the proceedings secondly instituted, because of the institution and dismissal of the former proceedings.

      The motion was denied, and defendant’s counsel excepted.
    The evidence being closed, the county judge adjudged and decided that Stroup recover possession of the premises, and that a warrant for the removal of Bridenbecker issue, to put Stroup in possession. A warrant was accordingly issued, and the plaintiff put into possession.

      E. J. Biehardson, for the relator.
    The proceeding to foreclose a mortgage by advertisement, is strictly and solely a proceeding in ■ rem against the property, to foreclose a lien. In conducting the proceedings, the statute must be carefully followed. (9 Barb., 278; 11 id., 191; 13 id., 137; 20 id., 18; 36 id., 501; 2 Cow., 231.) The addition to their names, “Executors, etc.,” is mere matter descriptio personae, and surplusage. (Merritt v. Seaman, 6 N. Y. [2 Seld.], 168; see opinion of Gridlet, J., pp. 171, etc.; Sheldon v. Hoy, 11 How. Pr., 11, to same effect; see opinion by Johnson, J., and cases cited, pp. 14, etc.; Christopher v. Stockholm, 5 Wend., 36; Worden v. Worthington, 2 Barb., 368.)

      George W. Smith, for the respondent.
    It was not necessary that the derivation of the executor’s power to foreclose the mortgage should appear in the notice. It is enough that the power to foreclose by sale be executed by those having the power in fact. (Bradstreet v. Clarke, 12 Wend., 672; Heyer v. Burger, 1 Hoff., 17; Bradish v. Gibbs, 3 John. Ch., 551; 1 Brad., 122; 3 R. S., 28, § 144 [5th ed.].)
   Mullin, P. J.:

The objections taken by the defendant, on his appearing to show 'cause, were properly overruled. The first objection, that the proof of service of the notice of sale was insufficient, was too general to be available. Ho defect is suggested, so that no intelligent ruling could be made upon it. The next objection, that the facts necessary to constitute a legal foreclosure or sale are not sufficiently stated or shown, is also too general; no defect is pointed out.

The objection, that the notice of sale on the foreclosure proceedings does not state or show that‘the subscribers to the notice had any lawful right or authority to foreclose or make the sale, is answered by saying that no such statement need be made in either the foreclosure proceedings or notice of sale. The statute regulating proceedings to foreclose mortgages, does not require any such statement to be made. Section 4 of the statute above cited, prescribes what shall be inserted in the notice of sale; the first of which is, that the names of the mortgagor and mortgagee, and of the assignee, shall be stated.

Upon the death of the mortgagee, leaving a will by which executors are appointed, the legal title to the mortgage vests in the executors, in the absence of any bequest of it to some one else; and, when the executors affixed to their names the words, “ Executors of Jacob J. Eolts, deceased,” they disclosed their interest, and how it was acquired. Executors or adminstrators are not assignees within the meaning of that term used in the fourth section, above referred to. But if they are, the notice sufficiently discloses the fact. The annexation of the words, executors, etc., is not only descriptio personae, but is descriptive of the character in which they acted.

The objections to the introduction of the affidavits of posting, etc., were properly overruled. The plaintiff was not required to state in his affidavit the name of each person upon whom notice of sale was served, or the precise day of service. It was for him to swear that copies of the notice were served on the mortgagors, and all persons having liens on, or interested in, the mortgaged premises. The papers offered contained the details of the service, and were competent to support the general averment of due service in the affidavit. The affidavits of publication show the notice to have been published for twelve weeks. The first publication was on the eighth day of April and again on the fifteenth, twenty-second and twenty-ninth ; the sixth, thirteenth, twentieth and twenty-seventh of May; third, tenth, seventeenth and twenty-fourth of June, and on first of July. The sale was on the third of that month. It was published, therefore, thirteen times, and the sale was on the eighty-sixth day from the first publication. The evidence given, and the admissions made, fully establish the facts stated in the plaintiff’s affidavit, and entitled him to a warrant that he be put into possession. It is not important in this case to inquire how far the proceedings in foreclosure of mortgages, and of sales on execution, are open to review before officers authorized to entertain these summary proceedings. If they may be reviewed, it follows that they may be annulled, and thus the action of the highest court in the State pronounced illegal and void by a justice of the peace. This cannot be so. It must be enough to produce before the officer the record of the proceedings on foreclosure. Whether they are in strict conformity to the statute, is not a subject with which the officer has anything to do. The former decision of the county judge dismissing the proceedings was not a bar to the subsequent one, as the dismissal was caused by defects in the affiadvit on which they were founded, The county, judge had jurisdiction and his rulings were correct, and his judgment must be affirmed.

• Present— Mullin, P. J., Smith and Gilbert, JJ.

. Proceedings affirmed.

       3 R. S. (5th ed.), 859, §§ 1 to 16

       Brown v. Betts, 13 Wend., 32.

       Geisler v. Weigand, 5 Seld, 227.


author: Mullin, P. J. :

text:
    GEORGE M. SHADER, Administrator, etc., Respondent, v. THE RAILWAY PASSENGERS’ ASSURANCE CO. of Hartford, Connecticut, Appellant.

      Policy.of Insurance — conditions in — when person as unde»'the influence of liquor ' Within the meaning of.

    In order to bring a person within a condition, contained in a policy of insurance, providing'that “no claim shall be made under this policy, when the death or injury may have happened while the assured was, or in consequence of his having- been, under the influence of intoxicating drinks,” the insured must have drank enough .to disturb the action of his physical or mental faculties, so that they are no longer in their natural or normal condition.
    No recovery can be had on a policy containing such a condition, where the ■ insured was, at the time of his death, under the influence of liquor, even if the drinking of the liquor was not the natural and probable cause of his death, or in any way contributory thereto.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      George F. Danforth,, for the appellant.

      J. B. Adams, for the respondent.
   Mullin, P. J. :

On the 21st February, 1871, Wesley E. Shader, plaintiff’s intestate, procured from the defendant’s agent, in Jersey City, a ticket known as a general accidental insurance ticket, issued by the defendant, insuring him against loss of time for not exceeding twenty-six weeks by reason of bodily injuries suffered during the life of said policy; and in case of the death , of said Shader, the defendant agreed to pay to his personal representatives the sum of $3,000. The insured paid for said ticket the sum of twenty-five cents; and by its terms, it was to continue in force from 7 p. m. of the twenty-first, to the same hour in the evening of the twenty-second of February.

The insured, after receiving said ticket, went from Jersey City to To wan da in Pennsylvania, where he arrived in the morning of the twenty-second. He spent the day at the house of one Henry Ward, and in the course of the day, he and Ward drank from a bottle of champagne, and from a bottle of Irish whisky, but it does not appear that either was so far under the influence of the liquor as to indicate it in his conduct, prior to sitting down to dinner about five p. m. At dinner, champagne and whisky were put upon the table by the direction "of Ward, and both drank; and several witnesses testify that the insured showed by his speech and manner, that he was under the influence of liquor. Others, who saw him either shortly before or at the beginning of the dinner, thought him not under the influence of liquor, if he had drank any. While at dinner, Ward and the insured were talking about shooting, and the latter told Ward he could not shoot a frog, and Ward told him he could shoot his (intestate’s) ear, and the latter told him he might shoot at it for ten cents, and soon thereafter a shot was heard, and on going into the dining-room, the insured was found on his knees on the floor, with his face on a settee, groaning, and in great pain. The ball struck him in the abdomen, and passed through one lobe of the liver, and lodged in the muscle near the spine. The wound caused his death in a few days. Proofs of the death were subsequently furnished to the company, but it refused to' pay on the grounds: 1st. That the policy had expired before the shot was fired; and 2d. Because the insured was under the influence of liquor at the time he was shot.

The last ground of refusal rests on the following provisions in the policy, viz.: No claim shall be made under this policy, when the death or injury may have happened while the insured was, or in consequence of his having been, under the influence of intoxicating drinks.

The court, in the charge to the jury, instructed them that the plaintiff could not recover if the evidence satisfied them the shooting and wounding of the assured happened in consequence of his having been under the influence of intoxicating liquor at the time. He further instructed them that the question was not simply whether he was under the influence of intoxicating liquors at the time, but it is whether the injury occurred in consequence of that.

The question is, was the injury the natural and reasonable cause of his being in that condition. The same proposition was repeated again in the charge; and the request to charge that plaintiff could not recover if the intestate was under the influence of liquor when he was shot, was refused. So that the single point presented for our consideration, is, whether the instruction given by the learned judge was a correct exposition of the rule of law applicable to the case before them.

An insurer has the right to release himself from liability in the event that the insured shall fail to comply with such reasonable conditions as may be imposed upon him by the contract of insurance. The insurer may impose the condition that the insured shall not drink intoxicating liquor, and such a condition would be reasonable ; for, although some men may drink liquor, and their ability to act prudently in an emergency, or to protect themselves against danger, may not be impaired, yet there are others whom a very small quantity will excite and render less capable, physically as well as mentally, of taking care of themselves when danger is imminent. The burden of proof of a violation of the conditions, devolves, as a general rule, on the insurer, and it would be exceedingly difficult, if not impossible, for him to show that the insured was, at the time of his death or injury, intoxicated so as to be incapable of taking care of himself. The security of the company calls for a prohibition of its use during the running of the policy, should it deem it necessary.

To be under the influence of intoxicating liquors, within the meaning of this policy, the insured must have drank enough to disturb the action of the physical or mental faculties, so that they are no longer in their natural or normal condition. When, therefore, the defendant imposed upon persons insured by it, the condition that it would not be liable when death or injury should happen while the insured was under the influence of liquor, the intention manifestly was to require the insured to limit its use in such a degree as that he would retain full control over his faculties of mind and body. While he did so, the company would be reasonably secure against the insured exposing himself unnecessarily to danger from his own act, or the acts of others produced by his own irritating or offensive conduct or language. It is the condition in which a person places himself by the use of liquor that the company intended to guard against, as well as against death or injury resulting from its use.

To require the company to prove, before it can relieve itself from liability, not only that the insured was under the influence of liquor when the death occurred, but that drinking it caused the death, either by direct action on the vital organs, or by so exciting the passions of the person insured as to cause him to insult or injure others to such a degree as to induce them to take his life, is imposing an additional burden on the company, not embraced in the terms of the policy. The cases that hold that the insurer must show that the relation of cause and effect exists between the thing prohibited and the death or injury, have no application to the clause under consideration, as it avoids liability if the insured was in a certain prohibited condition, without regard to whether it had any agency in producing death or injury. By putting himself under the influence of - liquor, he deprived the company of the security it would otherwise have had, that he would do nothing to expose his life or health unnecessarily to injury. The circuinstances attending the shooting, justify the inference that the drunken bravado of the insured, if it did not directly induce Ward to shoot him, had a tendency to excite and irritate him, and thus provoke him to shoot.

The succeeding clause in the condition, which is in the following words: “ or in consequence of his having been under the influence of intoxicating drinks,” presents the distinction which I desire to draw between the first clause of the condition and those in which it must be shown by the company that the death or injury was the consequence of violating, or not complying with, the condition. To render the company liable under the clause last mentioned, the death or injury must be , in consequence of the previous use of liquor. The relation of cause and effect must exist between the use of the liquor and the death or injury. Had the first clause provided that the company should not be liable when the death or injury, was in consequence of being under the influence of intoxicating liquor, the relation of cause and effect must be established in order to relieve the insurer from liability. But, while the language which calls for proof of the relation between the use of the liquor and the death or injury, is found in one clause of the condition, it is carefully excluded in the preceding clause, showing, manifestly, that it was not the intention to require the company to prove that death or injury occurred while the insured was under the influence of liquor, or was in consequence of being in that condition.

I am therefore of the opinion that the charge as given, and the refusal to charge as requested, were erroneous, and that a new trial should be granted, costs to abide event.

Present—■ Mullin', P. J., Smith and Gilbert, JJ.

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


text:
    EDWARD RYAN, Respondent, v. WILLIAM H. LEWIS, Appellant.
    The plaintiff brought an action in the Justice’s Court, for injuries sustained by his wagon, in a collision with the wagon of the defendant. The defendant denied the complaint. On the adjourned day the defendant asked to amend his answer, by adding thereto, as a defense, that, since issue was joined, an action had been tried in which the present plaintiff was defendant, and this defendant plaintiff, for injury done to the defendant’s wagon, in the same collision, and in that action the present plaintiff had set up, by way of counter-claim, the damages sustained by him in such collision, which were the same damages sought to be recovered in the present action. The justice refused to allow the amendment.

      Held, that the setting up of the new matter was not in the discretion of the justice, but the right so to do was absolute, and the justice had no discretion about it.
    Evidence that plaintiff paid ten dollars to repair his wagon, and that then it was not worth by fifteen dollars as much as before the injury, held, incompetent as a measure of damages.
    Appeal from a judgment of the Monroe County Court, affirming a judgment of a justice of the peace, in favor of the plaintiff.

      A. J. Willem, for the appellant.

      A. P. Butts, for the respondent.
   Mullin, P. J.:

This action was commenced in a Justice’s Court, to recover of the defendant the damages sustained by him, by reason of the defendant’s running against plaintiff’s wagon and breaking it with his (defendant’s) buggy while they were passing each other on the highway, in the night of the 19th June, 1812.

On the return day of the summons, the defendant denied the complaint, and the cause was then adjourned. On the adjourned day the parties appeared, and defendant asked leave to amend his answer by adding thereto as a defense, that since issue was joined in this action, an action had been tried, in which the present defendant was plaintiff, and the present plaintiff was defendant, in which the present defendant complained against the present plaintiff for injury done to the buggy of the present defendant, in the same collision referred to in the complaint of the present plaintiff, in which action the present plaintiff set up, by way of counter-claim, the damages sustained by him in such collision, and which are the same damages sought to be recovered for in this action; that the present plaintiff gave evidence in support of such counter-claim, and the same was submitted to and passed upon by the jury. The plaintiff’s counsel objected to the amendment of the answer, and the same was refused by the court. The parties then proceeded to trial, and judgment was entered against the defendant for twenty-five dollars damages, besides costs.

Both the plaintiff and defendant could not recover damages for injuries sustained by the collision of the buggies. The one who was free from fault, could alone recover. If both were in fault, neither could recover. The damages sustained by the defendant in the first suit (the plaintiff in this), were not a proper subject of counter-claim in the first aetion. The defense offered to be put in by way of amendment, alleges that the plaintiff in this suit set up his damages by way of recoupment ; that evidence was given in support of it, and it was submitted to, and passed upon by the jury. The allegation proved, the plaintiff could not maintain an action for such damages, although if objected to, the counter-claim would have been stricken out of the answer, as not being a proper subject of counter-claim. The truth of the matters set forth in the amendment to the answer, was not denied, and being true, it appeared that the trial in the former action was had since the joinder of issue in this, and the defendant had no opportunity to amend his answer at an earlier day than that on which the application for leave to amend was made. It was as much a legal right to set up the new matter by way of amendment, as it would have been at the joining of issue. Had he been refused leave to set it up then, there could be no doubt but the court on appeal would reverse the judgment-The justice had no discretion about it. It was matter of strict legal right. But, assuming that the allowance of an amendment rests in the discretion of the court, yet the refusal in this case was

a gross abuse of the discretion, and the only remedy of the party is by appeal. A judicial officer who should refuse leave to a party to amend, when it is apparent that the application is made in good faith, and is absolutely necessary for the protection of his rights, ought to be indicted or removed from office.

The plaintiff proved that he paid ten dollars for repairs to the buggy, and that it was not then worth as much as before the injury by fifteen dollars. This evidence was objected to, and the objection was overruled, and defendant’s counsel excepted. The measure of damages which the plaintiff was entitled to recover, if he recovered anything, was the amount the buggy was lessened in value by reason of the injury. The plaintiff could not cause repairs to be made upon it which did not make it as good as it was before the injury, and then recover in addition, the amount the repairs fell short of making it as valuable as before. There might be a controversy as to the manner in which the work was done, and as to the quality of the materials used. If either was defective, the defendant would» be obliged to pay more than the amount that would compensate plaintiff for the injury.

The judgment must be reversed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment of County Court, and that of the justice, reversed.

       Schnaderbeck v. Worth, 8 Abb. Pr., 37.

       Askins v. Hearns, 3 Abb. Pr., 187; Barhyte v. Hughes, 33 Barb., 320.

       1 Wait’s L. & P., 945.

       Plato v. Kelly, 16 Abb., 188.


author: Mullet, P. J.:

text:
    ALEXANDER OLCOTT, Respondent, v. JOHN HEERMANS, Appellant.

      Beceiroer—powers of to collect money not due— Oontrraat — waiver of cla/use against assignment.

    A receiver appointed to sue for and collect such debts as are or may become due, and to pay over the proceeds to a third person, has authority to receive money payable under a contract before it becomes due, and, if they be accepted by the third party, may take notes in place of the money.
    A provision in a contract of sale that it shall become void if assigned without the consent of the vendor, is waived if the vendor accepts the purchase-money from the assignee.

      On the 22d July, 1866; Joseph Fellows entered into a contract in writing with Thomas Taylorson, to sejl and convey to him certain land,.in the village of Corning, in the county of Steuben, on payment of $1,547.32, $100 of which was payable on demand, and the residue, with interest, in seven annual payments, which purchase-money said Taylorson covenanted to pay. The contract "contained a condition that it should not be lawful for the purchaser to assign said contract without the consent in writing of the said Fellows.
    On the 10th October, 1868, said Fellows conveyed, by an instrument in writing, to defendant, his real and personal estate in this State and several other States, in trust to sell the said lands by retail, and convey the same with covenants of warranty binding his heirs to warrant the title, and until sold to rent the same; and to collect all debts owing to him. The avails of said real and personal estate to be paid, distributed and disposed of as follows :
    1st. To defray the expenses of the trust.
    2d. The residue of said avails to be paid over to said Fellows, or appropriated to his use under his direction during his life.
    3d. After his decease, and after the payment of all his just debts and expenses aforesaid, the residue to be distributed as directed in a writing thereafter to be executed, or, in case none should be executed, then the residue to be distributed to his heirs according to the laws of this State. The defendant accepted said trust, and entered upon the duties thereof. On the 15th October, 1868, Fellows executed and delivered an'instrument designating the persons to whom he desired the avails of the trust property to be distributed at his death.
    On the 8th January, 1869, Fellows commenced an action in this court to have said trust set aside, and the property restored to him discharged therefrom ; and he' obtained an injunction restraining the trustee from interfering with the said property pending said action.
    One Bostwick was duly appointed receiver in the action, of all property conveyed to the trustee, and he was authorized by the order appointing him, amongst other things, to sue for and collect such debts as are or may become due, and to pay over to the plaintiff such sums of money as shall come to his hands, as such receiver, in the discharge of his duties. On the 4th February, 1871, the sum of $2,045.28 was due on the contract first herein mentioned, but the said sum was not then payable. On said day, Taylorson paid to the receiver the said sum, which included an amount not then payable, and the receiver indorsed the same upon the contract in full payment and satisfaction thereof. The sum so paid was paid to Fellows, who received the same in satisfaction of said debt. The receiver. was discharged April 10th, 1871, and the complaint in the action was finally dismissed. On the 4th February, 1871, Taylorson assigned the said contract, so paid up as aforesaid, to Joseph F. Hill, as collateral security to a note for said sum of $2,045.28, payable one year after date, with interest. December 1st, 1871, Hill indorsed said note, and assigned said contract to the plaintiff, and Taylorson also assigned his interest in said contract to the plaintiff, and authorized him to receive a deed for the land therein mentioned.
    Subsequently the plaintiff demanded a deed from the defendant, who refused to execute the same. This action was then commenced to compel defendant to execute and deliver to plaintiff a deed, in conformity to said contract.
    The defendant alleges in his answer that Hill was the confidential friend of Fellows and Bostwick, and that he, together with the persons last named, fraudulently conspired together to get possession of the moneys becoming due upon contracts, held by the defendant as trustee, and to take the same from under the said trust; and, for that purpose, Hill took Taylo'rson’s note, and the receiver receipted the amount unpaid on the contract as paid, and in full of the same, and Fellows gave the receiver his receipt for the money, but in truth and in fact no money whatever was paid to, or received by, the receiver or Fellows. The defendant for this reason refused to acknowledge the contract as paid in full, or to give a deed for the land therein mentioned.
    The court on the trial found the contract to be paid; found nothing in regal'd to the alleged fraud, and ordered judgment that defendant convey the land. From this judgment the defendant appeals.
    On the trial, defendant, to prove fraud against Hill, Bostwick and Fellows, offered to prove that O. D. Sill and Daniel Baker paid debts, severally owing by them to the trustee, by giving new securities to Hill. The court rejected the evidence and defendant’s counsel excepted. The court refused to hold as matter of law, that the assignment of the contract without the consent in writing of the trustee, was void.

      Brown de Hadden, for the appellant.

      George B. Bradley, for the respondent.
   Mullet, P. J.:

If the receiver had the right to receive the moneys remaining unpaid upon the contract, although not actually due, the court below was right in ordering judgment for the plaintiff.

The defendant’s counsel insists that, by the order appointing the receiver, he could receive only the moneys payable on the debts due to Fellows, and by him conveyed to the defendant as trustee, as the same became due, and he could not receive money not actually due, and if he did, the debtor paid in his own wrong, and the trustee was entitled to enforce its payment to himself after the receiver was discharged. The clause in the order appointing the receiver, may well receive the construction contended for; indeed it may be said to be the proper construction of the language, if regard be had to the language alone. But this is a case in which intention has much to do with the construction to be given to the language of the order ; and, in order to ascertain the intention of the court in framing the order, regard must be had to the circumstances under which, and the action in which, the order was made. The action in which the receiver was appointed, was commenced by Fellows to set aside the trust deed, upon three grounds:

1st. Because it did not creafe a trust, but was a mere power of attorney, and could be revoked at pleasure. .

2d. He executed it under the belief that it was a mere power of attorney, and his misapprehension of the nature and effect of the instrument, was not made known to him, and, having acted under a mistake as to the legal effect of the instrument, he was entitled to have it set aside.

3d. That defendant obtained its execution by undue influence and positive fraud.

If the last mentioned ground could be maintained, it would be the duty of the court to restrain the defendant from collecting debts owing to the estate, until the question of fraud was determined. If, however, the defendant was restrained from collecting the debts, the estate might be seriously impaired, unless some person was authorized to receive payments on the debts, pending the action; hence the appointment of a receiver was absolutely necessary.

The trust deed vested in the defendant, as trustee, the legal title to the property conveyed, subject to the trust, if a trust was in fact and in law created. By virtue of this legal title, the trustee had the power to receive debts owing to the estate, whether due or to become due, and his receipt therefor would be a complete defense to an action by any person to recover the same, provided the payment was not made with intent, on the part of the trustee and debtor, to defraud the estate. If the receivership did not extend to the debts not due, the trustee, after the dissolution of the injunction, should it be dissolved and the receivership left in force, could receive all debts not actually due, and thus Fellows be deprived of all benefit of his action, and all protection of his rights by the court.

The words, “ debts due and to become due” in the order appointing the receiver, were not intended to limit the power of the receiver, but as descriptive of the property conveyed. Debts due and to become due covered all that species of property belonging to Fellows at the time of the conveyance, and no better or more comprehensive description could be given.

If the fraud, charged between the receiver, Sill and Fellows, had been proved, it may be that the payment would be held to be inoperative, and the trustee could compel the debtor to pay the debt to him. But the fraud is neither proved nor found, and it is therefore unnecessary to consider what relief the defendant would be entitled to, in the event of its being found or proved. The fraud charged consisted, as alleged in the complaint, in Hill giving his obligations for the payment claimed to be made by the debtors to the estate, and that, without actual payment to the receiver, Fellows treated the obligations of Hill as payment. Hill is not alleged or proved to be insolvent, and it was" the province of .the receiver to accept a note or check in payment of a debt due the estate; but, when he came to account for what he bad received, he must have the. money on hand to pay over to the trustee. The receivership has terminated, and we must assume, in the absence of any allegation or proof to the contrary, that he paid over, in money, all he had received, or accounted in some manner therefor.

It seems to me the defendant’s remedy was, to insist upon the grounds now relied upon, upon the settlement of the receiver’s account. If there was anything due from him, the defendant was entitled to have it paid to him in money; and it would not be an answer for the receiver to say he had received notes in payment. The order authorized the receiver to pay the moneys collected to Fellows, and, in the absence of fraud, Fellows might receive notes, or acknowledge payment without receiving anything. These questions should have been raised and decided on the settlement; and to impose on the debtors of the estate the burden of repaying sums already paid to the person lawfully authorized to receive the same, would-be very oppressive and unjust.

The provision in a contract for the sale of land, that it shall become void, if assigned without the consent of the vendor, in writing, is valid and binding, and the assignment without consent, renders the contract void as against the vendor. But it may be waived, and is waived if the vendor, with notice of the assignment, accepts the purchase-money from the assignee.

The defendant as trustee (if the trust was a valid one), held the legal title, and was the party to convey upon payment of the purchase-money. As payment to the receiver was a valid payment by the plaintiff, the contract was satisfied, and the plaintiff entitled to a deed. The defendant could not, after such payment, take advantage of the condition against assignment. Having held at this term, that the conveyance from Fellows to defendant did not create a trust, it follows that the deed operated as a mere power in trust; and, as Fellows received the purchase-money, the defendant had no authority to refuse to convey because of the want of consent in writing, to the assignment. The judgment of the Special Term is right, and must be affirmed, with costs.

Present — Mullin','P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs.


author: Mtjllin, P. J.:

text:
    THE PEOPLE ex rel. EDWARD A. FROST and EDWARD A. FROST, Plaintiffs, v. JOHN H. WILSON, Defendant.

      Bight of suffrage—whence derived,—power of legislature to regulate—Chop. 570, Lams of 1872—effect of nen-complianee with, though not by elector—When statutes will be regarded as mandatory.

    The Constitution does not confer the right of suffrage, but recognizes it as an existing right, and either itself declares the qualifications of voters, or authorizes the legislature to provide for ascertaining them.
    The legislature, by virtue of its general legislative power, is authorized to designate the time and place of holding elections, and the officers who shall conduct the same, and by whom the results thereof shall be ascertained and determined. Laws upon these subjects are not unconstitutional, unless they take away or unreasonably restrict the right of suffrage.
    Section 6 of chapter 570 of the Laws of 1872, providing that no vote shall be received unless the name of the person offering to vote be on the register, made as therein provided, is constitutional and valid. The validity of the act is not affected by the fact that the right to vote is lost, not by any act of the elector, but through the acts and omissions of the officers appointed to prepare the register.

      Semble, that the legislature cannot require the courts to construe a statute according to its directions. It is the province of the courts to construe statutes according to the rules of construction established by them for their interpretation; the legislature may declare the purpose it intended to attain by the act, and it is the duty of the courts to so construe it as to effect the object intended, if it can be done consistently with the language used; but beyond this the legislature cannot go.
    Motion for a new trial on exceptions ordered to be heard in the first instance, at the General Term.
    This is an action in the nature of a quo warranto, to oust the defendant from the office of clerk of Monroe county, and to have the relator declared elected thereto.

      H. JR,. Selden and JBJ. JET. Woodward, for the relator.

      J. O. Gochrcme, for the defendant.
   Mtjllin, P. J.:

It was conclusively established on the trial that the register of the electors of the second ward of the city of Rochester, made in October preceding the general election, in the year 1873, was not made up from the poll-list kept at the election in 1872, as required by sections 1 and 2, of chapter 570, of the Laws of 1872. By the sixth section of said chapter, it is declared that “ no vote shall be received at any annual election in this State, unless the name of the person offering to vote, be on the said registry, made and completed, as hereinbefore provided, preceding the election. * * * This section shall be taken and held by every judicial or other tribunal as mandatory and not directory; and any vote which' shall be received by said inspectors of election in contravention of this section, shall be void, and shall be rejected from the count in any legislative or judicial scrutiny into any result of the election.” In obedience to the mandate of this section, the entire vote of the second ward must be rejected in ascertaining which of the candidates for the office of clerk of the county of Monroe was elected at the said election, unless the defect to which I have referred has been cured or may be disregarded. I confine the inquiry to the one defect above specified, out of several which have been insisted upon by plaintiffs’ counsel, because it is clearly established, and is the most important of the defects to which our attention has been called. The defendant’s counsel insists: 1st. That if it shall be held that the sixth section above quoted must be so construed as to deprive the electors of the ward of their votes at said election because of the neglect of the inspectors to register the voters, as required by said act, it is unconstitutional and void. His argument is, that the legislature has power by the Constitution to ascertain by proper proofs who are voters. The preliminary register provided for by sections 1 and 2 of the act of 1872, is not, in any sense, the proofs contemplated by the Constitution. It is prepared ex parte; no hearing is had or evidence given, and no determination as to who are electors. Irregularities or omissions, if any occur in making the preliminary register, are entirely immaterial, and cannot affect the right of the elector to vote. The right of suffrage is not conferred by the Constitution. It is recognized as an existing right, and it either declares the qualifications that the voter must possess, in order to entitle him to exercise the right, or it authorizes the legislature to provide for ascertaining who are entitled to vote. It is not under this provision of the Constitution, that the legislature makes laws regulating the manner in which elections shall be conducted; that is done by virtue of its general legislative' power. When the Constitution directs the election of public officers by the people, it is the duty of the legislature to pass laws designating the time and place for holding such elections, and designating the officers who shall conduct it, and by whom the results thereof shall be ascertained and determined. These subjects areleft entirely to the discretion of the legislature, and, unless it shall take away or unreasonably restrict the right of suffrage, the law cannot be said to be in violation of the Constitution. The power of the legislature to pass a registry law, whereby the name of every elector is required to be placed upon a register before the day of voting, in order to entitle him to vote, is not denied. It enables the legal voter to protect the ballot-box against the votes of persons not legally entitled to vote; and, to be of any substantial benefit, it must be made and completed a sufficient length of time before the election, to allow an investigation of the qualifications of the persons whose names are registered. To render the register of any value, there must be some forfeiture if the person who desires to vote has not procured his name to be registered, and that forfeiture should be, as it is, of his right to vote at the election for which such register is prepared. To allow names to be entered upon the list at the time votes are offered, is to defeat the purpose which the legislature had in view in framing the law, to wit: the prevention of illegal voting. The measures that shall be adopted to secure that end, are entirely in the discretion of the legislature.

The defendant’s counsel seems to concede that when the loss of the right is the result of the act or omission of the elector himself, the law which authorizes it is not in violation of the Constitution. But he insists that the right cannot be lost by the act or omission of officers appointed to make the register. The conduct of elections, like all other governmental operations, must be intrusted to officers selected for the purpose, and the rights of the elector may be made to depend upon the manner in which those officers discharge their duties. I am unable to perceive any distinction in this respect between the political and other rights of the citizen. The charters of municipal corporations frequently require the persons applying for the laying out of streets, or the making of sewers or other local improvements, to conform to provisions of the charters, regulating the laying out of streets, and making other improvements. In the course of such proceedings, clerks, assessors, the common council or other legislative body, are required to perform certain duties, and if not done at the time, or in the manner required, the proceeding is illegal, and persons applying fail to obtain the benefit of the street or improvement, and yet the fault is not attributable to the applicants. Every citizen who is a party to a lawsuit, has the right to have a court held, a jury summoned and impanneled, to try it when reache'd in its order. But if the jury has not been legally drawn or summoned, the cause cannot be tided, and the party’s right is gone without any fault on his part. A mortgagee leaves a mortgage with a county clerk to be recorded, but the clerk either omits to record it, or records it as being for a much less sum than the actual one, so that the lien is lost or the debt rendered worthless, and this without fault on the part of the mortgagor. It is unnecessary to multiply examples; the law books are full of them. If the legislature should assume to declare that if a citizen’s name was not placed on the register, preceding a general election, he should forever thereafter, or for any considerable time, be deprived of the right of suffrage, the provision declaring such forfeiture would, it seems to me, be void. But whether, because it would be in violation of the Constitution or of natural right, is not so clear. It would be assuming judicial power which the legislature cannot exercise. It may, however, deprive him of his right to vote at the election for which such register is made, and this without regard to whether the voter or the officer preparing the register is responsible for the omission of his name. If the provisions of the act of 1870 could be treated as directory merely, the register made for the election in 1873, might, and probably would, be deemed a sufficient compliance with the act, to require the votes given in the second ward to be counted and allowed. But the language of the sixth section is too plain to admit of any such construction. It declares that no vote shall be received at any election, unless the name of the person offering it be on the register, made and completed as thereinbefore provided. It is not enough that the name be on a register made by the inspectors; it must be on a register made and completed as required by said act. The register in question was not made in conformity with the act.

I was of the opinion, on first examining the case, that the provisions of the statute prescribing the manner in which the register should be made up, might be treated as directory merely, and that a substantial compliance therewith was all that was nebessary, and that the mandate of the sixth section of the act might be complied with, by limiting it to the requirement that no vote should be received from a person whose name was not found on the register. Could such a construction be given to the section, it would avoid the injustice that will be done in holding the act mandatory as to the manner of making up the register, especially where no wrong is intended, and no illegal votes received, or legal votes excluded. But the language of the section is too plain to admit of such a construction.

I do not think the legislature has any power to require the court to construe a statute according to its directions. It is the province of the courts to construe statutes according to the rules of construction they have established for their interpretation; but the legislature may, I have no doubt, declare the purpose it intended to attain by the act, and it is the duty of the courts to so construe it as to effect the object intended, if it can be done consistently with the.language used; but beyond this the legislature cannot go. To permit it to prescribe rules of construction, would be to assume judicial- as well as legislative power, thus practically to destroy one of the departments of the government. When the courts hold the provisions of a statute to be directory, and not mandatory, it is because such a construction will give effect to the intention of the legislature, without producing the mischiefs that would result from requiring a strict compliance with the statute. When a statute affecting the public, requires an act to be done within a given time, or in a particular manner, and there are no prohibitions against doing it at some other time, or in some other manner, the act is held to be directory. But it is the province of the legislature to declare that if the statute is not strictly complied with, the proceedings under it shall be void. It is immaterial in what manner the intention to make the provision of the act mandatory is declared, provided it is clearly expressed. Had the act of 1870 provided that the inspector of election should, conform strictly to its provisions or their acts would be void, the courts would have been bound to so construe the statute; and although the legislature might not have power to require the courts to construe the act as mandatory, and not directory, yet, such a requirement is a clear expression of the legislative intent, and effect must be given to it.

As the court rejected all the votes of the second ward, to ascertain which of the two candidates for clerk received the largest number of votes in the county, the whole number of votes taken in said ward must be deducted from the whole number of votes for clerk in the county; and, deducting the vote given in said ward ' for each of the contestants from the aggregate votes for each in the other towns and wards of the county, the person elected will be ascertained. The relator is thus shown to be entitled to the office.

There was some conflict in the evidence, as to whether the register was made from the poll-list of the charter election, held in the spring of 1873, or from that used at the general election in the fall of 1872, and this question, the defendant’s counsel asked the court to submit to the jury. The court refused, and the defendant’s counsel excepted.

[Here follows a statement of the facts in the case, from an examination of which the conclusion is reached, that the request to submit the case to the jury was properly refused.]

I have not examined the evidence in regard to the proceedings of the inspectors of the eleventh ward. The votes of that ward have been allowed to the defendant, and unless he was entitled to those in the second ward, he would not have a majority of the votes, and would not be elected. If the votes of the second ward are rejected, the plaintiff was elected; and it is immaterial to him whether the votes of the eleventh ward were or were not properly allowed to the defendant.

There must be a judgment on the verdict in favor of the plaintiff.

Present — Mullin, P. J., Smith and Talcott, JJ.

Smith, J., did not vote.

Motion for new trial denied, and judgment ordered for plaintiff on the verdict.


text:
    In the Matter of RICHARD BECKWITH, a Lunatic.

      Lunatic—contract with—when sustained—implied contract to pay for necessaries— Costs of application on behalf of, or to trmerse commission—when not granted.

    A contract with a person not known to he of unsound mind, and who has not been found, upon a commission de lunático inquirendo, to be insane, may be sustained, if it shall be proved to have been fairly made, and without advantage having been taken of the lunatic.
    Neither money advanced, nor compensation for services rendered to a lunatic, can be recovered fi'om him, if the circumstances were such as to put the party upon inquiry as to his mental condition.
    The law will imply a contract on the part of the lunatic to pay for necessaries furnished for the support of himself and family.
    In proceedings to have a person declared a lunatic, or to traverse or supersede the commission, the costs rest in the sound discretion of the court, and will not be granted unless the proceedings are instituted for the benefit of the lunatic, and are instituted and prosecuted fairly and in good faith.
    Appeal from an order overruling the exceptions to a referee’s report, and confirming the same.
    In 1843 Richard Beckwith became insane, and was sent to the asylum at Htica for treatment. He remained there between one and two years, at the end of which time he was permitted to return to his home, in Jefferson county, his mind having improved; but he was not cured. Becoming worse again, he was returned to the asylum, and was again permitted to return home, improved in health, hut not cured. This was repeated several times. At last, in 1854, he was taken to the asylum, and has not since been permitted to return home; and, in the opinion of Dr. Gray, the superintendent, and the assistant physicians of the asylum, Beck-with is insane, without lucid intervals, and has been, since he was last admitted to the asylum. When not excited, he is entirely harmless; and, until some of his delusions get possession of his mind, he talks quite rationally. But these delusions have never been removed, and, at his advanced age, it is -not probable that they ever will be. One of these delusions is that he owns the State; another, that he has occasional interviews with the Almighty.. During the rebellion, he told the officers of the asylum that he had the power to terminate the war, and would do so if he was permitted to go to Washington ; and, to do it, he would take command; and, with a body guard of women, he would put an end ■ to it in a very short time. All his delusions are not as extravagant as these, but they all indicate a disordered intellect that precludes the idea that he was, when the proceedings in this matter were instituted, sane, or ever can be.
    In 1854, a commission de hmatioo inquirendo was issued and executed, and he was found to be of unsound mind, and his son was appointed committee of his person and estate.
    In February, 1871, one C., a counselor of this court, prepared a petition for Beckwith to sign, alleging his sanity, and praying that the proceedings, by which he was found to ’ be a lunatic, be set aside, and his property restored to him. This petition was signed by Beckwith by making his mark, and it was verified before a notary public. It was accompanied by the affidavits of one or more physicians, and of several non-professional persons, averring their belief of his sanity, and capacity to manage his affairs. The committee opposed the motion, on affidavits of Dr. Gray and the assistant physicians in the asylum, who were intimately acquainted with Beckwith, some of them having personal charge of him and prescribing for him, alleging him incurably insane. The court , made an order referring it to O. S. Williams, Esq., to take proofs as to the sanity of said Beckwith, and he was directed to report the evidence taken by him to the court, with his opinion thereon. He returned the evidence, with his opinion that Beckwith was insane, and that he ought not to be set at liberty. The proofs fully sustain the conclusion at which the referee arrived. The report was confirmed, and the motion denied. While this reference was pending, an application was made by 0. to Dr. Gray, to permit certain physicians to see and converse with Beckwith, with a view to enable them to testify before the referee as to his sanity. The doctor refused, because such examination excited Beckwith, prevented sleep, and affected injuriously his health, until the court should direct him so to do. C. applied for and obtained such an order,' and the physicians saw and conversed with Beckwith.
    C. also applied to the court to compel the committee to render an account, none having been rendered since his appointment, and also to compel him to acknowledge that he held in trust, a house and lot which he had purchased for the use of the family in Watertown, and the title to which he took in his own name. These orders were granted, an 'account rendered, and the existence of the trust admitted.
    After these proceedings were concluded, C. applied to the court for an order requiring the committee of B. to pay him for his services and expenses in these proceedings, amounting by his bill to $1,500. The court made an order referring it to Judge Mason to inquire and report what sum should be allowed to 0. for his services, with the evidence taken by him, and liis opinion thereon. The referee heard the proofs and allegations of the parties, and reported that C. ought to be allowed $858.63. Exceptions were taken to the report, which were overruled, and it was confirmed ; and from the order overruling the exceptions and confirming the report, this appeal is taken by the committee. C. was allowed some ninety-five dollars, for services in proceedings to compel the committee to account, and to acknowledge that he held the title to the house in Watertown, in which the family of said Beck-with resided. This sum the committee paid.

      T. T. Spriggs, for the appellant.
    '---for the respondent.
   Mullin, P. J.:

A contract with a person not known to be of unsound mind, and who has not been found, upon a commission de ImnaMeo vnquwendo, to be insane, may be sustained if it shall be proved to have been fairly made, and without advantage being taken of the lunatic. But neither money advanced, nor compensation for services, can be recovered against a lunatic, if the circumstances were such as to put the party upon inquiry as to his mental condition,, by the reasonable pursuit of which his unsoundness of mind might have been discovered,

It was held in Fitzhugh v. Wilcox, that after inquest and the appointment of a committee, all contracts by the lunatic are abso-

lutely void. These propositions are subject to this modification: that the law will imply a contract on the part of the lunatic to pay for necessaries for the support of himself and his family. The case that has gone the furthest of any that I can find, in holding the estate of the lunatic bound by contract for services, is Wentworth v. Tubb. In that case the lunatic had employed a solicitor to traverse an inquisition of lunacy, and he was unsuccessful. He applied to the vice-chancellor for an an order directing the payment of his costs out of the estate. The application was allowed, the vice-chancellor saying, although allowed in that case, yet, “if anything fraudulent or unfair — or, perhaps I may go as far as to say frivolous or litigious— appears to have taken place on the part of the solicitor, the court may say that no debt arises.”

0. says he was retained by B., and by no one else. He neither consulted with the committee nor any member of his (Beck-with’s) family. They knew his condition, and could have informed him whether it was either wise or safe to set him at liberty. Dr. Gray, or any of the physicians or attendants in the asylum, could have disclosed to him B.’s mental and bodily condition, and the prospect, if any, of his restoration to health. No one was consulted, nor any effort whatever made to learn the truth in regard to B.’s condition, before an expensive, tedious, and to the children and friends of the family, painful litigation was begun. C. had' lived neighbor to Beckwith; knew he had been insane for years, and that it was necessary to send him to the asylum. He saw him repeatedly after he (0.) removed to Htica, and could not but know from his conversation that his mental condition was not improved.

He (G.) admitted to Dr. Gray, after proceedings were instituted, that he knew B. was insane, but justified his conduct- because he thought he might be set at liberty, and permitted to enjoy his property, and ought not to be longer detained. With this knowledge, it was shameful to act upon the retainer of B.it it was a fraud upon his family, a fraud on the court, and a prostitution of the forms of law for his own personal, pecuniary benefit, without a single chance of benefit to the client. Knowing B. to be hopelessly insane, he induced professional and non-professional persons to swear that he (B.) was, in their opinion, of sound mind and capable of managing his own affairs. These persons had only a very slight acquaintance with B.; had never seen him when laboring under one of his delusions; and honestly, I have no doubt, believed him-to be sane. C. knew better; and he presented their affidavits to the court, as being true, when he knew they were not.

When the fact was disclosed to the court, that it had been so shamefully imposed .upon, it owed it to itself, to the public, and especially to the unfortunate subject of the litigation and his family, to punish the person who did it. If such conduct is permitted to go unpunished, no insane person, no idiot, no infant who has property, is safe. There are, and always will be, men hanging on to the skirts of the profession, ready and willing to take advantage of the affliction that God in his providence has laid upon the idiot and lunatic, to seize upon and appropriate their property to their . own use, regardless alike of the laws of God and man, and of all sympathy for those who are déprived, by their villany, of bread to eat, and clothes to wear.

There was no" contract for the services of 0. which can be charged on his estate; but if there was, the court will not enforce it, because the services were not for the benefit of the lunatic, and C. was guilty of fraud, as well in procuring the employment, as in the conduct of the proceedings.

It remains to inquire whether the court will, in the exercise of its discretion, direct the payment of any sum whatever to 0., as compensation for his services.

In the matter of Catharine Cumming it was held, that it was a matter of right for a person, found to be a lunatic upon commission, to traverse the finding, but the court would, nevertheless, exercise control over the matter, for the protection of the lunatic and his estate, and would satisfy itself that the proceeding was in good faith, and that the lunatic, when he seeks to traverse the finding, is competent to judge qf what he is doing, and is really desirous that the traverse shall issue.

This rule applies to applications by the lunatic to supersede the commission, as well as to applications for leave to traverse it. And had such an investigation been had in this case, this litigation might have been prevented. It must not be inferred from these remarks, that I intend to cast any reflections upon the action of my brethren who have taken part in these proceedings. The papers accompanying the petition were sufficient to disarm suspicion, and to induce the court to order a reference to ascertain the actual condition of Beckwith. It was not the fault of the court that counsel deceived it, and imposed upon it affidavits as true, which he knew were untrue, although not known to be 'so by those who made them. A personal examination in conformity to the English practice, would have enabled the court to detect the imposition, and thus quash the proceedings at the very outset.

Costs are not granted against a person who institutes, proceedings to declare a person a lunatic and fails in them, if the prosecution has been in good faith. The same rule is applied when the attorney-of the lunatic fails in an application to traverse or supersede the commission, Indeed, the question of granting or refusing costs, rests in the sound discretion of the court, and they will not be granted unless the proceedings are for the benefit of the lunatic, and are instituted and prosecuted fairly and in good faith. In re Conklin, a solicitor appeared for Conklin (against whom proceedings had been commenced to declare him to be a person of unsound mind), to oppose the same, but Conklin was found to be a lunatic at the time of the retainer of the solicitor. The solicitor applied to the court for an order directing the committee to pay him his costs, incurred in such proceeding. The chancellor held the solicitor entitled to his taxable costs. He says: “As the person against whom the commission issued has been found to be a lunatic at the time of the retainer of the petitioner, the latter has no claim against the estate on the groiind of contract, as he is not- a creditor of the lunatic, who was incompetent to make a valid contract to pay him for opposing the commission. And, as a general rule, the court will not allow the costs of an unsuccessful opposition, as the party who is really a lunatic is not benefited thereby. This court may, however, in its discretion, allow costs for opposing the commission, where the fact of the lunacy is so much in doubt, that the chancellor would have directed and sanctioned such opposition if an application had been made to him in the first instance. In this case, it appears from the petition, that there were reasonable grounds for believing that the party proceeded against was not a lunatic; and the committee do not appear to oppose this application, as it was their duty to do if they believed the allegations in the petition to be incorrect.”

In no view of the case is the attorney entitled to costs; on the contrary, he should be compelled to pay the costs and expenses which the committee has been put to by reason of this most unjustifiable and unnecessary proceeding. It is only by inflicting severe punishment upon attorneys who use the courts of justice to strip their clients who are incapable of protecting themselves, that they and their families can be protected against forays upon their property.

It may be said that the order of the court, referring it to Judge Mason to inquire and report what sum should be allowed G. for his services, was virtually an exercise of the discretion of the court, and an allowance to the attorney of the costs of the. proceedings. If the order of reference could be held to have the effect of allowing the attorney costs, it should b'e satisfied, in view of the facts disclosed in this case, by allowing him six cents, and no more, the amount resting entirely in our discretion in reviewing the order of confirmation. But if the order is to be held to allow the attorney costs, it was improvidently granted, being in violation of the long settled practice of the court in such cases. Courtesy should not constrain us to impose upon the estate of the lunatic so oppressive and unjust a burden, as the allowance of the sum awarded by the referee would be. In making this disposition of the case, we are not to be understood as reflecting in the slightest degree on the action of the referee. He was not at liberty to inquire into the character of the proceedings, or the motives that prompted the attorney to action. He was to inquire what the services rendered were worth, assuming them to be honest and fair, and we have no reason to find fault with the amount he has awarded to the attorney, if he is equitably entitled to anything, which he is not.

Exceptions to the report of the referee are allowed, and the order of confirmation reversed, with ten dollars costs, to be paid by C. to the committee or his attorney ; and the motion for confirmation is denied, and the order of reference vacated.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

       2 Kent’s Com., 451, and note (1).

       2 Kent’s Com., 451, note; Lincoln v. Buckmartin, 32 Vt., 52.

         12 Barb., 235.

       Wadsworth v. Sherman, 14 Barb., 169.

       3 Younge & Col., 537 (21 Eng. Ch., 587).

       50 Eng. Ch. (1 De G., M. & G.), 537.

       Brower v. Fisher, 4 J. C. R., 440.

       In the Matter of Folger, 4 J. C. R., 169.

       In re M’Olean, 6 J. C. R., 440; In re Tracy, 1 Paige 580; In re Van Cott, id., 489.

       8 Paige, 450.


text:
    JOSIAH S. SMITH and others, Plaintiffs, v. JACOB VAN NOSTRAND, Defendant.

      Personal property—bequest of, to one for life—when remainder oner is void,— Gift for life—specific—residuary.

    Where a testator, by his will, bequeathed “unto my beloved wife, Catharine, the sum of $1,650 in lieu of dower in my real estate, for her support during her natural life, or as long as she remains'my widow, then her said dower shall be transferred to my three children;” held, that the widow took the absolute title to the money, and that the bequest over was void.

      Bapalye v. Bapalye (27 Barb., 610) followed.
    A gift for life of things, qua, ipso usu consumuntur, if specific, is a gift of the property, but if residuary, then the things must be sold, and the interest of the sum arising therefrom paid to the legatee for life.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    The only question presented by this appeal was as to the proper construction to be given to the following clause, contained in the will of Garret I. Smith, deceased, viz.: “ Eirst, I give and bequeath unto my beloved wife Catharine, the sum of one thousand six Hundred and fifty dollars in lieu of dower in my real estate, for her support during her natural life or as long as she remains my widow, then her said dower shall be transferred to my three children, hereafter mentioned. Fifty dollars of the above named sum shall be paid her as soon as practicable after my decease, and the remainder on or about six months after.”

      Halbert da Eckerson, for the plaintiffs.

      iS. It. Ten'Eyck, for the defendant.
   Mullin, P. J.:

Garret I. Smith died on or about the 1st January, 1866, leaving a last will, wherein and whereby he gave to his widow $1,650, in lieu of dower in his real estate, for her support during her natural life, or as long as she remained his widow; then her dower should be transferred to his three children. Fifty dollars of the said sum were to be paid to her as soon as practicable after his decease, and the remainder in about six months. He also gave such articles of furniture in his house as she should choose, with permission to dispose of it by will to whom she chose. He also gave her the use of his dwelling-house for six months after his decease, and necessary provisions for her support and comfort, to lie provided out of his estate.

The widow received from the estate of her husband the $1,650 bequeathed to her, and she invested the greater part of it in bonds of the United States, which she kept during her life. She died about 15th October, 1869. The defendant obtained possession of said bonds after the death of the widow, and had part of the same in his possession when this action was brought. The plaintiffs are the sons of Garret I. Smith, the testator, to whom, by his will, the dower of said widow was to be transferred on her death. They bring this action to recover the said $1,650, as legatees thereof under the will of their father. The complaint sets forth the facts above stated.

The defendant in his answer alleges that the plaintiff had no interest in the aforesaid sum of $1,650, but insists that, by the will of said Garret I. Smith, said sum was given to her absolutely. That during her life she invested the sum of $1,500 in bonds of the United States; that she used $500 of said $1,500 during hei life, together with interest on the whole of said sum; • that plaintiffs received $200 of said sum of $1,650; that at the death of the widow there remained of said sum $800, the greater part of which was owing for her support and maintenance. The answer further alleged, that on the 24th February, 1869, said widow made a last will, by which she bequeathed to her niece, Christina Van Hostrand, all property left by her, and appointed the defendant executor oí said will. On or about the 16th of April, 1870, said will was duly proved before the surrogate of Bergen county, Hew Jersey, and letters testamentary duly issued to the defendant. That defendant received as executor $916.17, assets belonging to the said estate; that he applied all of said sum, except $260.82, to pay for the support of said testatrix’s funeral expenses and the expenses of administrating said estate, and the said sum of $260.82 he paid over to the legatee named in her will. The defendant denies that he was the custodian of said bonds, or that the plaintiffs ever demanded the same of him.

On the trial of the action at the Seneca Circuit, the plaintiffs proved the will of said Garret I. Smith. Thereupon, the defendant’s counsel moved that the plaintiffs be nonsuited, on the ground that the complaint did not state a cause of action, for the following reasons:

1st. By the will the widow was vested with the absolute title and ownership of the money bequeathed to her by said will.

2d. That if the widow took but a life estate in the money bequeathed to her by said will, yet, as it was personal property, upon her death it would go back into the hands of the executors named in said will, to be by them distributed as directed by the will, and they are the only parties that can maintain an action to recover said moneys.

The court granted the motion and nonsuited the plaintiffs; to which ruling and decision plaintiffs’ counsel excepted. The court ordered the exceptions to be heard in the first instance at the General Term.

It is well settled that a gift for life of things, quee ipso usu consumuntur, as corn or wine, if specific, is a gift of the property, but if residuary, the things must be sold, and the interest of the produce paid to the legatee for life. It was held in Covenhoven v. Shuler that when there is a general bequest of a residue for life, with remainder over, although it includes things which are and which are not such as are consumed in the use, as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. Indeed the general rule is, that where there is a bequest of the whole of the ' testator’s personal estate, or of the residue thereof after the payment of debts and legacies, to one person for life, with the remainder over to others after the termination of the life estate therein, the whole must be converted into money and invested in permanent securities by the executor, and the income paid over to the person entitled to the life estate. When the bequest to the legatee for life is specific, the legatee in remainder is not entitled to have the property converted, notwithstanding, by reason of its being a decreasing fund, the legacies over may altogether fail.

The legacy to the wife was a general, and not a specific legacy, and, being payable out of the estate after the debts, specific legacies and expenses of administration were paid, it was a residuary legacy; f and money, as is known of all men, is a species of property that is consumed in the use.

These fules of law being established, we may now enter upon the construction of the clause of the will which gave the legacy to the widow and the plaintiffs. It is manifest by the bequest of the $1,650 to the plaintiffs, on the death of the widow, that it was not the intention of the testator to vest the title to the fund absolutely in the wife, and if she got such a title, it is in defiance of his intention. It is said by Emott, J., in Rapalye v. Rcupalye, that when there is a specific bequest for life of chattels, or the use of chattels, which are consumed in the use, the better opinion would seem to be, that a bequest over is void, and that the person to whom they are given for life takes an absolute interest. The legacy in this case, not being a specific one, is not strictly within the principle stated by the learned judge, but it seems to me it is so nearly being specific, that the wife should be held to have taken an absolute title to it, and hence the bequest over is void.

The will required the executor to pay over the money within six mouths to the wife; it was intended to be used for her support; the income of the legacy would have been so trifling as to be of no value to her.

Hothing but the use of the fund could be of any appreciable value to her. The will would admit of the construction that the widow should take the fund and use so much of it as was necessary for her support during life, and the plaintiff be entitled to what should then remain of it. This, I think, would give effect fully to the intention of the testator, and to all the clauses of the will, but I do not find any case authorizing such a construction. The judgment is affirmed.

Judgment affirmed.

       Dayton on Surrogates, 450.

       2 Paige, 182,

       Dayton, 452.

       Dayton, 418.

       27 Barb., 610, 614.


author: Mullust, P. J.:

text:
    JOHN JOHNSON, Respondent, v. WARREN RICHARDS, Executor, etc., Appellant.

      Surrogate's decree—effect of, on final settlement—Decree of distribution—right of action wpon.

    A decree made by the surrogate on the final settlement of an executor’s accounts, determines nothing beyond the amount received and paid out by him, and (unless the two amounts balance each other), the balance in his hands belonging to the estate, or due to him from it.
    Upon a decree directing distribution, made in conformity to the statute, an action will lie by each creditor or legatee, to recover the sum adjudged to him by such decree.
    A decree that a defendant pay a sum of money, without specifying the amount or providing any legal mode for ascertaining it, is a nullity:
    Appeal from a judgment against defendant, entered on the -decision of the court, at Special Term, in favor of the plaintiff for $1,600.50, and in favor of Jerome L. Johnson for $1,272.92.
    In 1851, John Jenkins, of Newport, Herkimer county, made a last will, whereby he devised to his widow and certain of his children portions of his real estate, and to others of his children specific legacies to be paid out of his personal estate. All the rest and residue of his estate he devised in trust to his -executor, with directions to convert the same into money, and, after applying a part of such proceeds to certain specified uses, the residue of the proceeds were to be divided equally amongst his ten children.
    The testator died in 1852, leaving him surviving nine children and two sons of one of his daughters who died before him. The plaintiff aud his brother, Jerome L. Johnson, were the children of such deceased daughter. At the time of the death of their mother, in 1851, these children resided in Wisconsin, and were minors, the plaintiff being then about three years of age, and Jerome about one year.
    John Richards, the executor named in the will of John Jenkins, caused the will of his testator to be proved, and letters testamentary were issued to him, and he proceeded to convert the property of the testator into money, and paid from its proceeds debts and legacies, but did not pay anything to the plaintiff or his brother. In January, 1855, the executor presented to the surrogate who issued the letters testamentary to him, a petition praying that the necessary citations issue to creditors, legatees, etc., to appear and attend a final settlement of his account as executor. Citations were issued and served, and a settlement had, and the surrogate made a decree reciting the proceedings and stating the sums received and paid out by the executor, and showing a balance in his hands of $3,186.90, to be distributed among the heirs of the deceased according to the terms of the will. The -decree then proceeds as follows, viz.: “ It appearing to the surrogate that the executor had conducted fairly and had rendered a just and true account of big proceedings as executor, so far as he had received and collected the funds belonging to said estate, ordered that the accounting be in all things confirmed ; and it was further ordered and decreed by the said surrogate, that the said executor’s accounting be conclusive, so far as the same relates to the personal property which is mentioned and set forth in the account filed by said executor.”
    This action is brought by the plaintiff, in' behalf of himself and all other legatees and creditors of the estate of his grandfather, against the defendant, executor of John Richards, the executor of said John Jenkins’ will, to recover one-half of the legacy of $300 given by the will of said Jenkins to plaintiff’s mother; $100 given by the same will to himself; and one-half of his mother’s share of the residue of the estate in the hands of the executor, after paying the sums directed by the testator to be paid before the balance was to be divided. The defendant, in his answer, sets' up by way of defense the six and ten years statutes of limitations, and the pendency of a suit brought by Joseph Jenkins, administrator with the will annexed of Joseph Jenkins, to recover the same moneys, part of which the plaintiff in this action seeks to recover, and that after the commencement of this action the complaint in such former action was dismissed with costs.
    The Special Term ordered judgment in favor of the plaintiff, on the ground that the action was. upon the surrogate’s decree, and that such action was not barred until the expiration of twenty years from the time the right of action accrued.
    If this position cannot be maintained, it is unnecessary to consider'any other question of fact or law'in the case, as it is conceded, and the court below held, that the action was barred unless it could be held to be an action to enforce the judgment.

      Richardson dk Adams, for the appellant.

      Earl, Smith dc Brown, for the respondent.
   Mullust, P. J.:

By section 71, of 3 Revised Statutes (5th ed.), page 181, the final settlement and allowance by the surrogate of the account of an executor, is conclusive evidence against creditors, legatees, next of kin of the deceased, and all other persons interested in the estate, upon whom a citation shall have been served, of the following facts, viz.: 1st. That the charges made in the account for money paid to creditors, legatees and next of kin, and' tor necessary expenses, are correct. • 2d. That the executor has been charged all the interest for which he is legally chargeable.- 3d. That he has collected all the moneys collectible on debts due to the estate. ■ 4th. That the allowance for increase and decrease of the estate is correct.

It is obvious that a decree on final settlement, determines nothing beyond the amount received and paid out by the executor, and (unless ‘the two accounts balance each other) the balance in his hands belonging to the estate, or due to him from it. Section 78, 3 Revised Statutes (5th ed.), 182, provides that, whenever an account shall be rendered and finally settled, if it shall appear to the surrogate that any part of the estate remains to be paid or distributed, he shall make a decree for the payment and distribution of what shall so remain, to and among the creditors, legatees, widow and next of kin, according to their respective rights, and in such decree shall settle and determine all questions concerning any debt£ claim, legacy, bequest or distributive share, to whom the same shall be payable, and the sum to be paid to each person. This section contemplates and requires a second adjudication by the surrogate, settling the rights of legatees, etc., to a share of the fund in the hands of the executor, and the amount to which each is entitled. It is not essential that the decree last mentioned should be on a paper separate and distinct from that on final settlement. They may be in one and the same paper. Upon the decree of distribution made in conformity to the statute, an action will lie by each creditor or legatee, to recover the sum adjudged to him by the decree of the surrogate.

Is the decree before us a decree for distribution, as required by section 78, above cited ? It is, in terms, a decree upon final settlement only, and has in it not one essential element of a decree of distribution. No creditor or legatee is named ; no amount is fixed to which any person is entitled. It merely states the amount, ascertains the balance in the executor’s hands, and declares that the settlement is final. It is not essential perhaps, that the names of the legatees, etc., and the amounts to which each is entitled, should be written out in the body of the decree, provided reference is made to some other record or document where the names and amounts can be correctly ascertained. Such a reference makes the paper referred to a part of the decree.

It was a matter in dispute at the Special Term, whether the legacies to the- plaintiff’s mother had not lapsed by reason of her death before her father, and also whether the executor of her father’s estate had not paid some of the legatees more than their shares of the estate. Had the surrogate entered into the question of the rights of the legatees, these questions would have been determined, as would also the amount to which each legatee was entitled. But he made no such adjudication. He settled and allowed the executor’s account, and rested. Judgments and decrees should state clearly the conclusions at which the court has arrived, so as to shield, the parties, as far as possible, from the consequence of misconstruction, and thereby extending their operations beyond what the court intended, or limiting unreasonably the relief intended to be granted. A judgment or decree that the defendant pay a sum of money, without specifying the amount, or providing any legal mode for ascertaining it, would have no binding force whatever. The decree in question is manifestly of that character, and cannot be enforced.

Again, I am unable to discover in the complaint any evidence that the counsel who drew it intended to declare upon the decree as a decree for the payment of money. If he did, he carefully avoided disclosing his purpose.

The case of the plaintiff is an exceedingly hard one, and would justify the court in going to the very limit of its power to afford relief. It may be that the surrogate can now perfect his decree, by adding a clause directing distribution of the moneys in the executor’s hands. It may be his duty now to enter such a decree. He had the parties before him, the amount due to each legatee was easily ascertained, and the parties interested should not suffer for the neglect of the surrogate to perform his whole duty. It is not our province to express an opinión on the question, and we leave it with counsel to inquire whether there is any value in the suggestion.

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

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