author: Dykman, J.:

text:
    DAVID S. ADEE and others, Appellants, v. JACOB CAMPBELL and JARED V. PECK, Administrators, Etc., of JOHN A. MERRETT, Deceased, Respondents.

      Statute of distributions — representation — how far allowed— next of Mn — meaning of.

    Where one dies intestate leaving no descendants, and no widow, father, mother, brother or sister, or descendants of brothers or sisters, but leaving first, second and third cousins as his nearest next of kin, the first cousins are entitled, under the statute of distribution, to the whole of the personal estate, to the exclusion of the second and third cousins.
    Appeal from a decree of the surrogate of the county of Westchester, distributing the goods and chattels of John A. Merrett, deceased.

      A. G. Vandergoel and Gideon J. Tucker, for the appellants.

      Calvin Frost, for the respondents.
   Dykman, J.:

John A. Merrett died intestate and left a large personal estate. Pie left no children, having never been married; no father or mother, no brother or sister, and no children of a brother or sister; but left fifteen first cousins. Pie also left a number of second and third cousins, who claim to share in the distribution of his property with the first cousins; and the question to be determined is, whether their claim is well-founded; or, in other words, who is entitled to share in the estate.

Rules for the distribution of personal property of deceased persons had their origin in the Roman civil law, and the English statutes of distribution, of which our own is a substantial reproduction, were borrowed principally from that law, thus furnishing another instance in which resort is had to that venerable system of jurisprudence from which so much that is useful has been in modern times drawn by civilized nations. The 118th novel of Justinian, which is the ground-work of the English statutes, made the first great change in respect to representation among collateral relations. By it descendants succeeded first, and failing descendants, then the succession belonged to the ascendants. If there were no ascendants, then came brothers and sisters; and in default of brother or sister, their children were allowed to represent them, and receive the share the parent would have received. But the grand-children of a brother or sister were not allowed to represent the grand-parents. If there were no brother or sister or children of them, then the nearest relation, in whatever degree, succeeded; and if there Avere se\'cral in the same degree, they shared the inheritance per capita.

It is quite remarkable Iioav close our statute has followed this provision of the civil law, by declaring that no representation shall be admitted among collaterals after brother’s and sister’s children; and, in case there be no avkIoav, and no children, and no representative of á child, then the whole surplus shall be distributed to the next of kin, in equal degree, to the deceased and their legal representatives. (Subs. 11 and 5 of sec. 90; 3 R. S., 104 [6th ed.].)

These two provisions must control this case, and the point of difficulty is their application thereto.

It seems to be plain, however, that the second and third cousins must take by representation, if at all, under the last part of subdivision five, above quoted; and but for the eleventh subdivision, they might so take. That subdivision cuts off all representation among collaterals, except as to nephews and neices; and as these claimants do not fall within that class, their claim to take by representation cannot be allowed. We have recently given this construction to the statute after a careful examination, and have as yet seen no reason to change our views. (In Matter of Suckly, 11 Hun, 344.) In the case of Hurtin v. Proal (3 Bradf. R., 414), the intestate left neither father nor mother, brother or sister, nor descendants; and the surrogate granted personal property to an uncle, and nephews and nieces of the deceased, on the ground that they were her next of kin, and were all related in the same degree.

These second and third cousins cannot; therefore, take by representation, by reason of this flat prohibition of the statute; neither can they take as next of kin, because there are others who are nearer. The word next, as used in this statute, means nearest in place; and to be the next of kin, within its meaning, it is necessary to be nearest of kin.

First cousins are nearer related to the intestate than second and third cousins; and as the portion of the statute quoted requires the property to go to the next of kin, in equal degree, the whole estate must, in this case, go to the fifteen first cousins.

These second and third cousins cannot take, as next of kin, because first cousins are nearer; and they cannot take as representatives, because no representation is allowed beyond nephews and nieces.

The decree of the ,surrogate appealed from must be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Decree of surrogate affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.,

license: Public Domain

text:
    THOMAS W. WILLETS, Administrator of ANNA V. KIRK, deceased, Appellant, v. JAMES TITUS, Surviving Executor of RICHARD KIRK, deceased, and Administrator of ANNA V. KIRK, deceased, and others, Respondents.

      Will —r construction of— accumulations — -when they pass -with the principal.

    A testator, by his will, gave to his wife the use of all his property until the majority of his daughter, when it was to be divided between them equally ; in case his daughter died during her minority, the whole to go to his wife; in case the wife should die during the minority of her daughter, then the daughter was “ to come in possession of all of said property, on arriving at the age of twenty-one years, previous to which to be.franded out, at the discretion of the executors hereinafter namedin case of the death of both wife and daughter without issue, during the minority of the latter, the property to go to persons named in the will.
    The wife died before the daughter, and the latter during her minority. Accumulations of income were made by the executors during the survivorship of the daughter. Held, that such accumulations passed to the ultimate legatees with the body of the estate, and did not belong- to the estate of the daughter.
    Appeal from a judgment, entered upon the trial of this action at Special Term.
    This action was brought to compel the defendant to render an account as to the estate of Anna V. Kirk. The principal question in the case was whether certain accumulations of income belonged to the estate of Anna V. Kirk, deceased, or whether they passed to certain legatees named in the testator’s will.
    The material portions of the will were as follows :
    “ First. It is my will that my beloved wife, Mary A. Kirk, has the free use of all my property, both real and personal, for the mutual benefit of herself and my daughter, Anna V. Kirk, until she arrives at the age of twenty-one years, at which time I give and bequeath the one-half the property there may then be, consisting of real or personal, of whatever kind and nature soever, to my beloved wife, Mary A. Kirk, and the other equal one-half to my daughter aforesaid,' Anna Y. Kirk, share and share alike. The said bequest to my wife, Mary A. Kirk, is in lieu of her dower.
    “ Second. In case of the decease of my said daughter, Anna Y. Kirk, before arriving at the age of twenty-one years, my will is that the said property all goes to my beloved wife aforesaid; and in case my said wife should not live until my daughter, Anna V. Kirk, reaches to the age of twenty-one years, then, and in that case, my aforesaid daughter, Anna Y. Kirk, is to come in possession of all of said property, on arriving at the age of twenty-one years, previous to which to be handed out, at the discretion of the executors hereinafter named.
    “ Third. In case of the death of both wife and daughter aforesaid before the latter becomes of age (unless she should have lawful issue), I desire that the said real and personal property be equally divided between (certain persons therein named.) ”
    Accumulations of income were made during the minority of the daughter, and after the death of the mother who died during such minority. The daughter, Anna V. Kirk, died before arriving at the age of twenty-one years.

      J. A. Thompson, for the appellant.
    Anna Y. Kirk, being the only heir-at-law and next of kin of the testator, neither she nor her estate can be deprived of the testator’s properly, or the income thereof, by some supposed implication as to the will. (Lynes v. Townsend, 33 N. Y., 558; Ilaxtuin v. Corse, 2 Barb. Ch., 506, 521; Jarman on Wills, vol. 2, p. 525 [741]; Kedfield on Wills, vol. 1, p. 425.) The provisions of the will, that Anna Y. Kirk should come into possession of the property on arriving at age, did not deprive her of the income or possession before becoming of age, because she, being the heir of the testator, was not by such expression cut off from the income or possession. (Jarman on Wills, vol. 2, p. 525 [741]; Kedfield on Wills, vol. 1, p. 425 [Rules 5 and 6, supra]; Ilaxtuin v. Corse, 2 Barb. Ch., 506, 521.)

      Wilson M. Powell, for the respondents.
   Dykman, J.,

Richard Kirk, by the first clause of his will, gave the free use of all his property to his wife and his daughter Anna, until the latter attained the age of twenty-one years, and then the wife was to have one-half and the daughter the other. If the daughter died before arriving at the age of twenty-one years, then all the property was given to the wife; and if the wife did not live until Anna reached the age of twenty-one years, then all was given to the daughter, to be received in possession and enjoyment by her upon her reaching twenty-one years of age, until which time the executors were to hand out the property to her in their discretion. In case of the death of both wife and daughter before the latter became twenty-óne years of age, then, unless she had lawfid issue, all the property was to be divided equally between certain persons named or indicated.

The wife died intestate in 1861, and the daughter, who survived her, died childless and intestate under the age of twenty-one years in 1872. Between the time of the death of the wife and daughter there were certain accumulations of the estate which came to the hand of the executors, and the controversy has respect thereto. There is no positive direction or provision in the will for accumulation. The power to the executors to hold some of the estate, is implied from the direction to hand out to the daughter in their discretion after the death of her mother- Assuming, however, that a direction for accumulating is thus to be implied, it is a perfectly valid one within our statute. (1 R. S., 773, § 3.)

Under the second clause of the will, the daughter took a vested estate. Her reaching the age of twenty-one years was a condition precedent to the possession and enjoyment of the estate, and not to its vesting. (Manice v. Manice, 43 N. Y., 380.)

If the daughter had reached the age of twenty-one years, then all would have come to her in possession; but as she did not, the whole body of the estate, which included all that had not been handed out to the daughter, passed under the third clause of the will.

This seems very plain; after the death of the wife, the executors were to hand out to the daughter, in their discretion, as she required, and hold the balance to be handed over to her on her reaching twenty-one years of ago ; if she did not reach that age, then all went to the persons indicated in the third clause in the will.

Judgment should be affirmed, with costs.

■Barnard, P. J., concurred ; Gilbert, J., not sitting.

Judgnient affirmed, with costs.


text:
    WILLIAM E. CLARK, Administrator, Etc., of MARTHA VAN AMBURGH, Deceased, Plaintiff, v. DAVID E. VAN AMBURGH, Defendant.

      Statute of limitations — what a sufficient written acknowledgment, to remove bar ofr

    The defendant made and filed an inventory of the estate of his intestate ; he made a copy, and inserted at the foot thereof copies of two promissory notes, given by him to the deceased, and inclosed the same to his co-administrator, in a letter-, saying, “Inclosed I send a copy of the inventory taken yesterday.” Held, that the copies of the notes and letter constituted a sufficient written acknowledgment of the notes to take them out of the statute of limitations.

      Marrow v. Morrow (12 Hun, 386) followed.
    Submission of controversy, upon admitted facts, in pursuance of section 1279 of Code of Civil Procedure.
    Martha Van Amburgh died March 9th, 1876. A few days afterwards letters of administration were issued to plaintiff and defendant — the defendant being her son; and plaintiff her son-in-law. In the life-time of the deceased, defendant, for value received, gave to her two promissory notes, one dated March 1st, 1868, and one November 8th, 1869 ; on the first of which a payment of $100 had been made on November 1st, 1868, which was the only payment made on said notes, or either of them, by defendant.
    The defendant resided at the place where deceased resided at the time of her death, and plaintiff resided some fifty or sixty miles away. On the 23d of March, 1876, an inventory of the estate of deceased was made, in due form, by appraisers, under the direction of the defendant; it being done at his residence. The plaintiff was not present.
    March 24th, 1876, the defendant wrote to the plaintiff a letter, in which he said: “ Dear Brother, inclosed I send a copy of the inventory taken yesterday.” He inclosed a copy of the inventory filed with the surrogate, except that at the end thereof, and before his signature, he had inserted the following items:
    1 note D. E. Van Amburgh .... $500 00
    1 note D. E. Van Amburgh..... 100 00
    The question was, whether this was a sufficient written acknowledgment to remove the bar of the statute of limitations.

      W. Farrington, for the plaintiff.
    The acknowledgment was made to his co-administrator, and is therefore good within the cases, which hold that it must be made to the creditor, or some one acting for him. The acknowledgment is made to the creditor; it is voluntary; it is unqualified;, and is signed by the party to be charged. (Chace v. Higgins, 1 Sup. Ct. R. [T. & C.], 229; Murray v. Foster, 20 Johns. Rep., 576; Stewart v. Foster, 18-Abb. R., 305.)

      W. Morgan Lee, for the defendant.
    To revive a debt, barred by the statute of limitations, there must be either an express promise, or an acknowledgment of a present indebtedness; a subsisting liability, and a willingness to pay it. (Allen v. Webster, 15 Wend., 284; Stafford v. Richardson, 15 id., 302; Winchell v. Hides, 18 N. Y., 558; Bech v. Morrison, 1 Peter’s U. S. Repts., 351, etc,; Purdy v. Austin, 3 Wend., 187; Staffoi'd v. Bengen, 2 id., 532; Hancock v. Bliss, 7 id., 267.)
   Dykman, J.:

In the case of Morrow v. Morrow (12 Hun, 386), we held that the insertion in an inventory of a note, theretofore made by the executor to his testator, was a sufficient acknowledgment of the indebtedness by the executor to take the case out of the statute of limitations. In that case the inventory was verified by the executor in the manner required by law; that it was a true inventory of all the just claims of the deceased against the executor. In this case, the promissory notes held by the deceased against the defendant were not named in the inventory filed at all, but he inserted them at the foot of a copy of the inventory, and then inclosed the copy in a letter to his co-administrator, which letter was signed by him and contained this sentence: “ Dear Brother, inclosed I send a copy of the inventory taken yesterday.”

If the paper inclosed had been a copy of the inventory as made, then the case of Morrow v. Morrow would have been an authority for the plaintiff. The defendant, however, inserted these notes in the copy of the inventory, and then signed a writing which said it was a copy of the inventory. What did he mean by that ? Did he mean to say, I intend to have the inventory in this shape, and to have my two notes on it as a part of the assets of the estate of my intestate, and to acknowledge the existence of my indebtedness on these notes ? We think this must be held to be the legal effect of this act, otherwise Ms ■■ letter means nothing, so far as these notes are concerned, and that is not to be presumed. Contrary wise, it is better to presume that he meant to say, in effect, I -send you the inventory of property, by which I intend to be controlled in the settlement of this estate. It contains two notes of mine, and they are in existence and valid.

We think this declaration in writing to the administrator of the estate took the notes out of the statute, and that the plaintiff must have judgment on the submission, with costs.

Barnard, P. J., and Gilbert, J., concurred.-

Judgment for plaintiff on submitted case, with costs.


text:
    ELIZABETH ALLEN, Respondent, v. JEREMIAH EIGHMIE, Appellant.

      Statute of frauds — agreement to answer for debt of another — vm-bal guaranty of bonds.

    Defendant was indebted to the plaintiff in the sum of $1,970. On May 2d, 1871, defendant wrote to plaintiff to meet him and one Smith at the Morgan House, Poughkeepsie. She met them there, when Smith produced three railroad bonds of $1,000 each, and asked her to purchase them. Upon her hesitating to take them, the defendant advised her to do so, saying that the bonds were good; that if she took them, he would guaranty them so that no loss should come to her. She took the bonds, relying up on this promise, and paid there_for by canceling defendants indebtedness to her, and by the transfer of a $1,000 note of one Taylor, held by her.
    tn an action to enforce this guaranty, held, that it was not simply an agreement to answer for the debt or default of another, but a promise founded upon an original consideration between the parties thereto, and not within the meaning of the statute of frauds ; and that the defendant was liable thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon, the verdict of a jury.

      W. C. Albro, for the appellant.

      John Thompson and H. A. Nelson, for the respondent.
   Dykman, J.:

This is an action founded on a guarantee of payment of certain railroad bonds. A trial has been had at Circuit, and a verdict rendered for the plaintiff. This appeal is from the judgment entered on the verdict, and brings to this court questions of law only. (Code of Civil Procedure, § 1346, sub. 2.)

The evidence tended to show that the defendant was the father-in-law of the plaintiff, whose husband was dead ; that the plaintiff had one thousand dollars in the hands of Taylor Brothers, and the defendant owed her nineteen hundred and seventy dollars. About the first of May, 1871, the plaintiff received a letter from the defendant requesting her to meet him and M. C. Smith at the Morgan House, in Poughkeepsie, on the second day of May, 1871. She met them there, and Smith produced three bonds of one thousand dollars each of the Dutchess and Columbia Kailroad Company, which he requested her to purchase.; that she hesitated, and went to consult her uncle, who was cashier at the Fallkill Bank, who advised her to invest her money in city bonds. She informed the defendant of the advice, and he thereupon told her that city bonds were good, and these railroad bonds were good also, and he would advise her to take these; and if she did take them he would guarantee them so that it would be no loss to her; they would be good any way to her. That in reliance upon this guarantee she took the bonds, delivered up to the defendant her notes for nineteen hundred dollars, and an indebtedness of his to her of seventy dollars besides, and also the note of Taylor Brothers for one thousand dollars. The price of the bonds was twenty five hundred dollars.

The claim of the plaintiff is that the defendant made himself a joint actor in the purchase of these bonds ; that he procured her presence at the appointed time and place, and then said to her substantially, if she would buy the bonds he would guarantee their payment, and see that she suffered no loss by so doing; and that she made the purchase of the bonds at his request, and upon his promise to make them good in case they were not good. It must now be presumed that the jury found these facts, for the precise question was submitted to them by the charge.

This, then, being the contract, the question here is whether it falls within the condemnation of the statute of frauds. We cannot, on this appeal, examine the testimony for the purpose of ascertaining whether it is sufficient, for there is certainly some evidence to sustain the verdict. It is quite true that, in a sense, the defendant promised to pay the debt of another, but he did much more; he advised the plaintiff to buy the bonds, and told her if she did so no loss should come to her, and she made the purchase and parted with her money in reliance upon that promise. He effected the sale, and was the sole cause of the purchase. The transaction is the same as if he owned the bonds himself, so far as the question of originality is concerned. It is not necessary that the seller of goods shall be the owner, in order to make him liable upon a guarantee in respect to them, and as the defendant induced the plaintiff to purchase these bonds by his guarantee that he would make them good, and thus induced her to make the purchase and part with her money, he is hable upon his guarantee, and the case is not within the statute of frauds. Even if the transaction between the plaintiff and defendant at the time she made the purchase is to be considered as a promise on his part, to pay the debt of the railroad company, it is not then within the statute of frauds; for where the promise to pay the debt of another arises out of some new and original consideration of benefit or harmony between the newly contracting parties, the case is not within the statute of frauds. This principle was enunciated by Chancellor Kent in Leonard v. Vredenburgh (8 Johns., 29), and was recognized by Judge Comstock in his very exhaustive opinion in Mallory v. Gillett (21 N. Y., 418).

These considerations show that the judge at Circuit properly denied the motion for a nonsuit, and that the judgment must be affirmed.

There are two or three other grounds upon which it is claimed, the jury might have found for the plaintiff; but as the judgment stands firmly and satisfactorily upon the first ground examined, we do not think it worth while to go over the other in detail.

Judgment should be affirmed with costs.

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

Judgment affirmed, with costs.


text:
    PATRICK McCUE, Administrator, Etc., of CATHARINE McCUE, Deceased, Appellant, v. JOHN GARVEY, Respondent.

      JPuneml expenses of wife — lmsband must be allowed the amount thereof, from her estate.

    A'husband, upon the settlement of his accounts as administrator of the estate of his deceased wife, should be allowed out of her estate for her necessary and proper funeral expenses paid by him.
    Appeal by plaintiff from a decree of the surrogate of Kings county, upon the final accounting of the appellant as administrator of his wife.
    The surrogate disallowed the following items:
    For a wake, - - -.....$47 00
    For priest, ........10 00
    Other funeral expenses, - - - - - - 187 87
    saying that he saw no objection to any of them as a proper charge,' provided the estate of the wife was in any event properly chargeable With her funeral expenses.- Having decided this latter question in the negative, he disallowed all of the items.

      F. E. Dana, for the appellant.
    ' Anthony Barrett and Charles J. Patterson, for the respondent!
    When a wife dies, her husband is primarily and absolutely bound to iirovide her funeral at a reasonable expense. (Patterson v. Patterson, 59 N. Y., 583; Jenkins v! Tucker, 1 H. Black, 90.) This duty rests upon him, even though the wife had left him without cause and lived separate .from him for years prior to her" death. {Bradshaw v. Beard, 12 Com. B. N S. [104 Eng. C. L.j, 344; Ambrose v. Kerrison, 10 Com. B. [70 Eng. C. L.], 776.) "This liability results from.the relation of husband and wife, and is not the same as the liability which the common law casts upon ■a householder to bury any one who dies in his house.. (See Rex. v. Stewart, 12 Ad. & El., 773.) For the husband is bound to bury the wife, no matter where she dies. And where the death, and funeral takes place in his absence and without his knowledge, he is bound to reimburse any one who pays the expenses. Where the wife dies and leaves a separate estate,, the husband is not allowed to east the funeral expenses upon that. {Bertie v. L\d ■Chesterfield, 9 Modern R., 31; Gregorys. LocJcyer, 6 Maddock'g Ch., 63; Wílleter v. JDobie, 2 Kay & Johnson, 649.)
   Dykman, J.:

It is the right of every person to have decent burial after death; Thus far there seems to be no difference of opinion, but the point of difficulty is to ascertain upon whom the duty devolves to see that the right is accorded. Whatever may be the rule of law respecting the burial of. poor persons, it seems to be reasonably well settled that the necessary and pi’oper expenses of the interment of a dead body are.a charge upon his estate, and the duty of burial rests primarily upon the personal representatives, and the law will imply a promise to him, who, in'the absence of such representative, or from the necessity of the case for any reason, incurs the expense of a proper burial. (Patterson v. Patterson, 59 N. Y., 583.) It is not intended to assert that any person who intermeddles officiously and incurs expense in the interment of a dead body, can recover the same from the personal representa-, lives, but only that it is the duty óf the personal representatives to see to it that a decent burial is accorded, and that the expense thereof is a proper charge against the estate. Such being the case, it should be allowed by the surrogate in the settlement of their accounts.

It may be, and probably is the law, that a husband is bound to bury the corpse of .his deceased wife, and,he is probably liable in an action to any person who, by reason of his absence ot; neglect, incurs the expense of the burial. It is probably also the duty of any person under whose roof a dead body lies to see that it has decent burial. But none of these rules exempt the estate of the deceased person from the final charge for such expenses. They are intended to secure prompt and proper burial, to which all are entitled. In this case the deceased wife had a separate estate, and her husband paid the expenses of her funeral, and there is no reason why he should not be allowed therefor in the settlement of her accounts as her personal representative. If this lady had died under the roof of a stranger, the duty of the interment would have devolved upon him, in the first instance; and then, if he had been her executor or administrator, the expenses would have been allowed to him by the surrogate in the settlement of his accounts. Why not now ? Why should her separate estate be exempt from the payment of her funeral expenses because she happens to have left a husband surviving her, when there would be no pretense for such exemption if she had not. The simple fact that it was the duty of the husband to bury his deceased wife is not sufficient, for we have seen that it is the duty of other persons to bury the deceased wife in the absence of the husband.

We think the surrogate fell into error in refusing to allow the funeral expenses to be paid out of the estate.

Decree should be reversed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Decree of surrogate reversed, with costs.


text:
    CHARLES HEYL and GEORGE EMMERMANN, Respondents, v. THE INMAN STEAMSHIP COMPANY (Limited), Appellant.

      Gommcm, carrier— liability of— act of God — when it does not relieve the carrier.

    Although a common carrier is relieved from absolute liability for an injury to goods intrusted to his care, when such injury is occasioned by the act of God or public enemies, yet, to avail himself of such exception to his liability, he must first show that he himself was free from fault; and when the injury isr occasioned by such causes while his own default, in failing to forward the goods as required by his contract, contributes thereto, he is not relieved from liabiliy for the damage resulting from such injury.
    Appeal from a judgment in favor of the plaintiff, entered upon: the verdict of a jury, and from an order denying a motion for anew trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for an injury occasioned to six casks of wine must, delivered to the defendants at Rotterdam to be transported to the plaintiff in New York.

      John M. Boioers, for the appellant.
    The bill of lading expressly relieves the defendants from liability arising from sweating, leakage or breakage. (Steers v. Liverpool, JY. Y. & JPhila. S. S. Co., 57 N. Y., I; Belger v. Dinsmore, 51 id., 166; Magnin v. Dinsmore, 62 id., 85; KirMand v. Dinsmore, id., 171.) No recovery can be had against a common carrier or an insurer of goods if the articles are lost from their own inherent defects. (Blower v. Great Western Railway Company, Eng. L. R., 7 C. P., 655; Kendall v. London & South Western Railway Co., L. R., 8 Ex., 373; Conges' v. 11. R. R. R. Co., 6 Duer, 375, 380i Farrar v. Adams, B. N. P., 69; Cragin v. JY. Y. C. <& II. R. R. R. Co., 51 N. Y., 61, 63.)

      F. A. Ward, for the respondents.
    If a carrier departs from the line of his duty and violates his contract, and while thus in fault the goods are injured by causes excepted in his bill of lading, he is not thereby protected. (Read v. Spalding, 30 N. Y., 630; Michael v. JY. Y. C, 30 id., 564; Bostwiclc v. B. R. R. Co., 45 id., 717; Coudicl v. G. T. R. R. Co., 54 id., 505; Rawson v. Holland, 59 id., 611, 619; Dunson v. JY. Y. C. R. R. Co., 3 Lans, 265; Magee v. C. (& A. R. R. Co., 45 N. Y., 522; Arends v. Liverpool, JY. Y.& Phila. S. S. Co., 6 Lans., 457; McArthur v. Sears, 21 Wend., 190; Mes'ritt v. JEarle, 31 Barb., 38.)
   Dykman, J.:

This action is brought to recover damages for negligence in the transportation of goods. On the 16th clay of November, 1875, the defendant received and accepted at Kotterdam six casks of ■grape juice, commonly called must, which ivas consigned to the plaintiffs in New York city. The bill of lading contained the stipulation, that the casks wére to be sent forward to Liverpool and there trans-shipped to the defendant’s steamship, City of Berlin, or other of their steamships, appointed to sail for New York on Thursday, the 25th day of November; and, failing shipment by her, then the first of the company’s steamships sailing after that date for New York. The casks arrived at Liverpool on the 23d day of November, stowed in the fore-hold of the vessel; and the heads had then been blown out of two of them by the fermentation of the liquor; none of the casks were shipped on the Berlin,' which sailed on the 25th day of November. Another of the defendant’s vessels sailed from Liverpool on the 2d day. of December, but the casks were uot shipped until December 9th, having been there on the defendant’s dock for sixteen days; when the casks arrived, the liquor ivas worthless.

The bill of lading, which is the contract between the parties, contains stipulations exempting the defendant from liability for-the loss which has ensued, unless it resulted from negligence in performance of the contract on the part of the defendant, which is attributable to its fault. But, if the defendant has not been-free from fault, and its own negligence has contributed to the injury complained of, then the action can be maintained, notwithstanding the stipulation in the bill of lading. (Read v. Spaulding, 30 N. Y., 630; Condict v. Grand Trunk R. R., 54 id., 500.)

The cause was submitted to the jury upon this theory, with instructions, that if the defendant had kept the contract, there could be no recovery; but, as it was conceded the casks were not shipped from Liverpool until the 9th day of December, the jury was to find whether, upon the proof, there was sufficient excuse for not sending the casks forward bn the 25th day of November or the 2d day of December, steamers belonging to their company having sailed on both of those days. And further, if the jury found the excuse was insufficient, then the defendant could claim no exemption under the restrictions it contained.

At the request of the defendant’s counsel, the trial judge distinctly charged the jury that if the contents of all the casks had begun to ferment before reaching Liverpool, there could be no recovery. The substance of the instruction to the jury, then, was this: By the stipulation in the bill of lading the defendant is exempt from liability for injury, by reason of any inherent defect in the article shipped, and from leakage, fermentation and breakage; but as there was delay, and the contract was not performed in time, you shall say whether there was an excuse for it, or whether it was the result of negligence. If you find the former, there can be no recovery; and if you find the latter, there can be.

This charge was certainly as favorable to the defendants as could be asked for by the contract. The company undertook to trans-ship these casks on one of the steamers appointed to sail on the 25th day of November, and failing shipment by her, then by the first one of the company’s vessels sailing after that date for New York; and it is settled law with us, that if a party engages unconditionally, by contract, to do an act, performance is not excused by accident or unforseen contingency. (Harmony v. Bingham, 12 N. Y., 99.)

From well-known and commendable motives of policy, our law holds a carrier responsible for injury to goods intrusted for trail» portation, and he can only claim exemption from such absolute liability by «showing that the injury resulted from the act of God or the public enemy; and before he can avail himself of such exemption, he must be alile to show that he was himself free from fault. (Read v. Spaulding, 30 N. Y., 630.) By analogy to this rule the defendant was, by the bill of lading, exempt from peril, which caused the destruction of the must; but, to avail itself of this exemption, it was called upon to show that it had performed the contract, and was without fault. Because if it was in fault, then a liability attached for all the injury caused thereby, and wo must assume that the jury found that all the injury to the liquor in the four casks resulted from such fault. All claim for damages to the two casks, which commenced to ferment before reaching Liverpool, was withdrawn from the jury by the court.

We find no error, and the judgment must be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    DELOS D. PIER, Appellant, v. GEORGE GEORGE, Respondent.

      Section 12, chap. 40 of 1848 — report required try — what it must state as to capital — Assignee of claim against company — right of, to enforce personal liability of a trustee— Chap. 510 of 1875— effect of.

    Under section 12 of chapter 40 of 1848, as amended by chapter 333 of 1853, the report filed by the trustees of a manufacturing- corporation must show how much of the capital stock has been paid in in cash, and how much has been issued for property transferred to the corporation. The penalties imposed by the act of 1848 for a violation of any of the requirements of the said twelfth section, are also applicable to any violation of the additional requirements of the amendatory act, chapter 333 of 1853.

      Semble, that since the passage of chapter 510 of 1875, amending said twelfth section, it is no longer necessary to specify separately the amount of cash paid in, and the amount of stock issued for property transferred to the company. Where, after a trustee has become personally liable to pay a debt, by reason of a failure to Ole a proper report, such debt is assigned, the assignee thereof may maintain an action to enforce such personal liability.

      Bolen v. Crosby (49 1ST. Y., 183) followed.

      Merchants’ Bank v. Bliss (35 N. Y., 412), and Bank of California v. Collins (5 Hun, 209) doubted.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered upon the trial of this action by the court without a jury.
    The action was brought to enforce a personal liability against the defendant, as trustee of a manufacturing corporation, for a failre to file a proper report, as required by the act, chap. 40 of 1848 (as amended by chap. 333 of 1853), in January, 1875.
    In the spring of 1875, the corporation purchased of Pier Bros. & Co., commission merchants, in New York, a large quantity of hops and malt, and gave four notes therefor, amounting in the aggregate to $4,903.91. The property so sold belonged to plaintiff and was sent by him to said Pier Bros. & Co., to be sold by them, as commission merchants. Suits were brought on three of these notes by Pier Bros. & Co., and judgments recovered, and executions issued to the sheriff of Orange county, which were all duly returned unsatisfied. These judgments, and all said notes were subsequently assigned to plaintiff. Plaintiff' was nonsuited on the trial. .

      Charles H. Searle, for the appellant.
    The cause of action was assignable. The trustee is liable for all the debts of the company. If the debt itself survives, all its privileges and rights survive with it. [Gould v. Ellery, 39 Barb., 163; Jackson v. Blodgett, 5 Cow., 202; Parmelee v. Dann, 23 Barb., 461; Butler v. N. Y. & Erie B. B. Co., 22 Barb., 110; Bolen v. Crosby, 49 N. Y., 183; Hoag v. Lamont, 60 N. Y., 96; Bonnell v. Wheeler, 1 Hun, 332.) The action is for a wrong done to the property or interests of the creditors, and therefore assignable. [Haight v. Haight, 19 N. Y., 464; Bixbie v. Wood, 24 N. Y., 607; Meech v. Stoner, id, 26; Craves v. Spier, 58 Barb., 349; 2 ft. S., 448; sections 1 and 2.)

      E. A. Brewster, for the respondent.
    An action against a trustee to subject him to personal liability for the debts of the company, for the causes set forth in the complaint in this action, is an action for a penalty or forfeiture, given by statute. [Merchants Bank v. Bliss, 35 N. Y., 412; Wiles v'. Suydam, 64 N. Y., 173; Easterly v. Barber, 65 N. Y., 252; Whitney Arms Co. v. Barlow, 68 N. Y., 34.) A cause of action for a tort is not assignable. The claim in this action is of that character. (3 Williams on Executors, 1831; Bank of California v. Collins, 5 Hun K., 29; Zabriskie v. Smith, 3 Kernan, 332.) The repeal of a penal statute destroys all rights of action for penalties incurred under it while it was in force, unless saved by express words in the repealing act; and the act is the same in all respects as if the omitted portion had never been included. [Butler v. Palmer, 1 Hill, 324; Curtis v. Leavitt, 15 N. Y.,. 152, 229.)
   Dykman, J.:

This action is to charge the defendant with personal liability for a debt of a corporation of which he was a trustee, and the complaint alleges two grounds of recovery. First, a failure to file the annual report for 1875; and second, for making a false report.

A report was filed on the 19th day of January, 1875, which contained the following statement:

Capital stock ------- $60,000 00
Capital paid -in ------- 36,500 00
Amount existing debts - 30,130 24

The truth was, but $11,500 of the capital was paid in in cash, and $25,000 of the capital stock was issued in payment for property purchased by the corporation.

One question to be determined is, whether this report conforms to the statutes on the subject as they stand now on the books.

Section 12 of chapter 40 of the laws of 1848, which was the original act, required the company to make, publish and file within twenty days from the first day of January, in each year a report which should state the amount of capital and of the proportion actually paid in, and the amount of its existing debts; and the same section then provided that if any company failed so to do, all the trustees of the company should be jointly and severally liable for all of the debts of the company then existing, and for all that should be contracted before such report was made.

Chapter 333 of the Laws of 1853 amended the law of 1848, and provided that the trustees of the company may purchase mines, manufactories and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor; and the stock so issued shall be declared and taken to be full stock, and not liable to any further call; neither shall the holder thereof be liable for any further payments under the provision of the tenth section of the original act; but, in all statements and reports of the company to be published, the stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect according to the fact.

It. needs no construction to ascertain that the report of this company, made in January, 1875, was in plain violation of this statute, because that report stated that the capital paid in was $36,500, when the fact was that $25,000 thereof was stock issued in payment for property, and the report was not, according to the fact, as it was required to be by the last quoted law. Does this requirement of the law of 1853 still exist? Chapter 510 of the laws of 1875 amended section 12 of the original act, and provided that the report should be made much in accordance with the requirements of the original section, which should state the amount of capital and of the proportion actually paid in, and the amount of its existing debts.

From this provision, it seems to be the clear intention of the Legislature to dispense with a particular statement in relation to the capital paid in in cash and the stock issued in payment of property; and if the law had been in existence when the report in question was made, the report would have been sufficient. ■ But it was not. The report was made on the 16th, and filed on the 19 th of January, 1875, and the amendment was not passed until' June 7th, 1875. The defendant can, therefore, take no benefit from this law; and the report is insufficient as the law stood before. It is claimed that the penalty imposed by the twelfth section of the act of 1848 was for a failure to comply with the requirements of that act as it stood before the amendment of 1853, and that the; penalty will not be extended to the requirements of this last law, as no such intention is expressed therein. •■•.•.

We cannot concur in this view. This severe legislation is in the •interest of the public for the protection of creditors, and the prevention of frauds in respect to the financial condition of the corporation; and the construction contended, for would completely neutralize the intention of the Legislature in that respect. The amendment of 1853 was as if it had been originally inserted in the act of 1848; and all the penalties of that act must be held to relate thereto.

Another point requires consideration. The debt in question, which is the foundation of this action, was not contracted with the plaintiff, biit came to him by assignment after the liability of the defendant had attached for a failure to file a proper report. Upon this the question is, is a right or cause of action of this description assignable?

In Merchants' Bank v. Bliss (35 N. Y., 412), the Court of Appeals held that the action against trustees under this statute must be considered an action upon a statute for a penalty or forfeiture; and that the three years’ statute of limitations was applicable for that reason.

In the case of the Bank of California v. Collins (5 Hun, 209), the General Term of the Supreme Court for the first department held, that the action against trustees for a failure to file the report required by the statute is penal in its character, and does not survive against the executors of a deceased trustee.

Whatever doubt is created by these cases, respecting the assign-ability of a cause of action against a trustee arising from the failure to file a report, must be held to be overcome by the case of Bolen v. Crosby (49 N. Y., 183.) In that case it was held that an assignment of a judgment against a corporation, organized under these laws, carries with it the claim or debt upon which it is founded, and all rights and remedies for the recovery of, and collection of the claim or debt, including the remedy given by the act against the trustees.

Under this decision we are bound to hold that the assignment in this case carried to the plaintiff the remedy given by the law against the trustees for an omission to file the report required.

The judgment appealed from must be reversed and a new trial granted, with costs to abide the event.

Present — Gilbert and Dykman, JJ.

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


text:
    MARIE SCHIERLOH, Appellant, v. KASTEN SCHIERLOH, Respondent.

      Action fen' dower— consent to receive gross sum, in lieu, of— coste of action and, extra allowance — may be allowed, to both parties — chap. 717 of 1870, and chap. 258 of 1874.
    Chap. 717 of 1870, as amended by chap. 258 of 1874, provides that a widow, in any action brought to recover dower, may file a consent to accept a gross sum in lieu thereof, and that the court may thereupon order a sale; and that in case such sale is ordered, the plaintiff shall be entitled to recover her costs .and disbursements out of the proceeds, and that “ all subsequent proceedings in said action shall be conducted in accordance with the provisions ” of the Revised Statutes in relation to the partition of lands, and such provisions “ for the purposes of such sale and the distribution of the proceeds thereof, are made applicable to the proceedings in such action.”

      jHeld, that the court, in an action to recover dower in which such consent was filed was authorized to award costs anil an extra allowance to the defendant as well as to the plaintiff, and that the dower interest was to be computed only upon the proceeds remaining after the deduction of both these amounts. •

      Appeal from so much of ail order made at a Special Term a» allows costs to be taxed in favor'of the defendant in this action, and awards to him an extra allowance.

      Morris & Pearsall, for the appellant.

      William II. Waring, for the respondent.
   Dykman, J.:

This is an action by a widow against the heir-at-law of her deceased husband, to have her dower admeasured in certain lands of which her husband died seized, or to have the lands sold and her dower paid in gross out of the proceeds. Judgment has been entered in the action, and the land has been sold, and the court at Special Term gave costs and an additional allowance to the defendant as well as the plaintiff, as in action for partition, and the plaintiff has appealed to the General Term from an order refusing to strike these allowances to the defendant out of the judgment.

Section one of chapter 717 of the Laws of 1870, provided that in any action by a widow in any court to recover her dower or to procure the admeasui'ement thereof, the plaintiff might file a consent in writing, signed and aekixowledged by her, accepting a gross sum of money iix satisfaction aixd discharge of her dower in such real estate, to be estimated upon the net pxeceeds of a sale thereof to be adjudged by the court. If the coux-t is satisfied that a portion of the land caxmot be .laid off as the dower of such widow, without material iixjury-to the parties iix interest, and the consent above mentioned has been filed, then the comí; has power to adjudge that the land be sold in the same manner that sales are made in actions to foreclose a mortgage.

Section two of this same law was amended by chapter 258 of the Laws of 1874 and, so far as is necessary to be xxoticed here, the law now is that.if a sale is adjudged, the plaintiff in the action shall recover her costs, to be paid out of the proceeds, and all subsequent proceedings in the action after the sale is adjudged shall be concluded in accordance with the provisioixs of the statute in relation to the partition of lands, as amended, altered or modifled by the several acts passed subsequent thereto, and the provisions of that statute as so amended, altered and modified for the purposes of such sale and the distribution of the proceeds thereof, are made applicable to the proceedings in such action,

This amendment seems to manifest the intention of the Legislature to subordinate these actions for dower to the statutes relating to actions for partitions, from the time a sale of the land is adjudged, and as these statutes provide that the costs and expenses of the proceedings shall be deducted from the proceeds of every sale, and be paid in the first instance, so the same thing should bo done in these actio'ns.

Costs and allowances are given to both parties in actions for partitions in the discretion of the court, and the same thing has been, done in this action.

The allowance to the defendant is not large, and under the exposition we have given of the statute, we think the order appealed from is justified, and must be affirmed, with costs and disbursements.

Barnard, P. J., and Gilbert, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    EDWARD H. GILLILAN, Plaintiff, v. EBEN SWIFT, Defendant.

      Inchoate right of. dower — what form of deed sufficient to transfer.

    A deed executed by a husband and wife, which “ grants, bargains, sells, aliens, remises, releases, conveys and confirms” the land and “all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity of the said parties of the first part of, in and to the same,”, is sufficient to release the wife’s inchoate right of dower in the land, and estop her from subsequently claiming the same.
    Controverst submitted upon admitted facts, under section 1279 of the Code of Civil Procedure.
    The plaintiff entered into an agreement with the defendant to sell to him a certain parcel of real estate. Upon examining plaint*; iff’s title, the defendant claimed that the wife of one of plaintiff’s grantors had never released her right of dower therein.
    The question arose under a deed, duly executed and acknowledged, by which John H. Ely and Emma A., his wife, conveyed the premises to one of plaintiff’s grantors, by which the parties of the first part “ granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm unto the said party ■of the second part, and to his heirs and assigns forever, all that certain tract,” etc. * * * “together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in and to the same, and every part and parcel thereof.” This deed, though signed and executed by the wife of said John II. Ely, did not contain the words “ dower and right of dower." The only question in dispute, and the only one upon which the General Term was asked to pass, was, does this deed so operate, that this defendant would get an absolute and perfect title to said premises, barred of all dower, and right of dower, as against said Emma A. Ely, Avife of said John H. Ely ? Or, is the objection made by this defendant, that said Emma A. Ely is not estopped-and barred of her inchoate right of dower in said premises, a valid objection to the title of said premises ?

      Francis Lynde Stetson, for the plaintiff.

      A. Pentice, for the defendant.
    It is not sufficient that the wife sign the deed Avith' her husband, unless the same contains Avords which relate expressly to her dower right. (Tyler on Infancy and Coverture, § 403, pp. 554, 555, and cases cited; 4 Kent’s Com. [12th ed.], p. 60; 1 Hilliard on Eeal Property [4th ed.], § 9, pp. 173, 175; Albany Fire Ins. Go. v. Bay, 4 Comst. [middle of p. 12J, and cases cited; 2 Scribner on DoAver, p. 280; Washburn on Eeal Property, vol. 1 [2ded.], p. 200, § 12; Jackson v. Vanderheyden, 17 Johns., 167; Moore v. The Mayor, etc., 4 Sekl., 110; Green v. Putnam, 1 Barb., 500; Sigler v. Van lifer, 10 Wend., 415.)
   Dykman, J.:

Upon the acquisition of seisin of an estate in land by the husband, the wife acquires a right of dower therein, which to the time of his death is called inchoate or incomplete. This right of the wife is not an estate in the land, and cannot bo conveyed by her. It may, however, be released by her if she joins with her husband in an instrument in writing containing apt words for that purpose, and acknowledged by her in the manner prescribed by our statute. The better opinion seems to be that, when the wife thus joins with her husband in a deed conveying the land, the conveyance operates against her by way of estoppel, and not by way of grant, for the reason that she has no estate or interest in the land which is the subject of a grant.

This being the case, it is entirely evident that no particular form of words is necessary to accomplish this result. Any apt words in the instrument, indicating an intention to release all the right she has in the instrument, will effect the estoppel.

In the deed in question, the words are grant, bargain, sell, alien, remise, release, convey and confirm, all the estate, right, title, interest, property, possession, claims and demand of, in and to the.land in question. It would be difficult to use more comprehensive words or words more expressive of an intention to release and convey all the interest or right either party had in the land. These are words, both of grant and release, and it certainly was not necessary to use the words dower, or right of dower, to describe more technically the kind of interest or right which the wife had. All was granted and released whatever it was. In accordance with the submission, judgment must be rendered in favor of the plaintiff against the defendant; that the defendant complete her purchase of the premises in accordance with the terms of the agreement contained in the case. No costs, but legal disbursements.

Barnard, P. J., and Gilbert, J., concurred.

Judgment for plaintiff upon submitted case, with legal disbursements only, according to stipulation.


author: Gilbert, J.:

text:
    WILLIS S. PAINE, Receiver. Etc., Appellant, v. J. WYMAN JONES, Impleaded, Etc., Respondent.

      Assumption of mortgage by grantee — agreement between grantee and mortgagee to change its terms — mortgagor released thereby.

    Jones executed a bond and a mortgage upon certain lands, the moi'tgage containing a clause to the effect that the mortgagee would, upon request, release portions of the mortgaged premises, from time to time, upon receipt of a certain sum per acre, or of a first mortgage thereon for the same amount. Subsequently the mortgage was transferred to a savings bank of which plaintiff is receiver. Jones sold the lands to one Guthrie who assumed the payment of • the mortgage. Thereafter the bank and Guthrie entered into an agreement whereby the clause as to releases was stricken from the mortgage.
    In an action to recover from Jones a deficiency arising on a foreclosure sale, held, that, upon the sale to Guthrie, Jones became a surety for the payment of the mortgage debt, and that the abrogation of the clause as to releases was such a change of the mortgage contract as to release him from all liability thereunder.

      Meyer v. Zathrop (10 Hun, 66) overruled.
    Appeal from a judgment dismissing the complaint herein as to the defendant, J. W. Jones, and canceling a judgment for deficiency heretofore entered against him. .
    This was an action by plaintiff as receiver of the Bond Street Savings Bank of New York city, to foreclose a mortgage made by defendant Jones, to secure his bond in the penal sum of one hundred thousand dollars. The execution and delivery of the bond and mortgage were admitted. It was also admitted that the amount due and unpaid on the bond and mortgage, was $27,727,41. And that the bond and mortgage had, by various mesne assignments, become the property of the Bond Street Savings Bank before the commencement of this action, and that the plaintiff had been duly appointed receiver of the bank.
    The defendant Jones sought to escape liability for any deficiency, on the ground that at the time he executed the bond and mortgage, the mortgage contained a clause in regard to releases in the following words, viz.: “The said party of the first part, his heirs or assigns, shall have the privilege of requiring from the said party of the second part, his heirs or assigns, at any time before the payment and discharge 'of these presents, and as often as the same shall from time to time be desired, a release of any portion or portions of the premises hereby mortgaged, upon the payment or tender to the said party of the second part, his heirs and assigns, of an amount equal to the sum of three hundred dollars ($300) per acre (and at that rate for any part of an acre), embraced in the portion or portions for which a release is so required; or at the option of the said party of the first part, his heirs or assigns, in lieu of the payment of such sum upon the execution and tender by the said party of the first part, his heirs or assigns, of a first mortgage to the said party of the second part, his heirs or assigns, for the same amount, upon the property or portion for which a release is so required; which mortgage shall be payable according to the conditions and at the same time with these presents.”
    That he sold the mortgaged premises to one Guthrie, who assumed said mortgage, and that thereafter one Benjamin Wright became the owner of said bond and mortgage, and that they were by him assigned to the Bond Street Savings Bank. That after the bank became the owner of the bond and mortgage, it and said Wright made an agreement in writing with said Guthrie, without defendant’s knowledge or consent, whereby the said clause in the mortgage in regard to releases was abrogated, and that the effect of such agreement was defendant’s release from all liability on his bond, because he was a surety.
    Rastus' 8. Ransom, for the appellant.
    It is not every alteration of the obligation that will discharge a surety. The alteration must be material. ( Wilson v. JEdwards, 6 Lans., 136, Aff’d by Ct. App.; 3 W. D., 563; 5 W. D., 420.) Jones has to-day the same wants and the same remedies that he always.had, and upon being subrogated to the plaintiff’s rights, he finds the obligation (the bond) precisely as it was when he became surety for its performance. He has the same security he held in the beginning, and in addition thereto he has the release of an onerous condition originally fixed upon the security by the debtor, and the effect of such release is to increase the value of the security. The mortgage is collateral to the bond. The releasing clause in' the mortgage detracted from its value as siich collateral, and the abrogation of that clause was, in law and in fact an additional collateral. Á creditor may take as many collaterals from the debtor as he pleases, and not thereby discharge the surety. (11 Wend., 320, and cases cited; 3 Comst., 446; 5 Barb., 580; 52 N. Y., 138; 1 Bosw., 411; 41 N. Y., 471; Bhjclenburghr. Bingham, 38 N. Y., 374 [opinion]; Vase v. Florida JR. B. Co., 50 N. Y., 375 [opinion]; La Farge v. Jlorler, 11 Barb., 163 [opinion].)

      JDioight A. Jones and F. A. Ward, for the respondent.
    A bond and mortgage given at the same time, in regard to the same ' subject-matter, and by and to the same party, constitute one contract. (Wing v. Cooper, 37 Verm.,'178; Coldhamr. Showier, 3 ’ C. B., 312; Makepeaces. Harvard College, 10 Pick., 298; Hills v. Miller, 3 Paige, 254; Cornell v. Todd, 2 Denio, 130; Rogers v. Kneeland, 10 Wend., 218; Pepper v. Haight, 20 Barb., 429; .Pars, on Con., vol. 2, p. 503; Jones’ Law of Mort., §§ 71, 72; Chick v. Willels, 2 Kans., 284; Round v. Donnell, 5 Kans., 54; Crafts■ v. Crafts, 3 Gray [Mass.], 360; Somersworth Savings Bank r. Roberts, 38 N. IL, 22; Bassett v. Bassett, 10 N. H., ’ 64; Boody v. Davis, 20 N. II.. 140; Muzzy v. Knight, 8 Kans., 456.) The defendant after the transfer of April 30, 1870, , to Guthrie, was a surety only for the payment of the mortgage debt, said Guthrie being the principal debtor. (Cor- . nett v. Prescott, 2 Barb. Ch., 16; Russell v. Pistor, 3 N. Y., 171; Halsey v. Reed, 9 Paige, 446; Marsh v. Pike, 10 Paige, 595; Rubens v. Prindle, 44 Barb., 336; Tripp v. Vincent, 3 Barb. Ch., 613; Juméis. Jumel, 7 Paige, 591; Blyers. Monhol- . land, 2- Sandf. Ch., 478; Ferris s. Crawford, 2 Denio, 295; Johnson s. Zink, 52 Barb.. 396; Burr s. Beers, 24 N. Y., 178; Hartley s. Harrison, 24 N. Y., 171; Beekman s. Remsen, 25 N. Y., 552; Bentley s. Vanderheyden, 35 N. Y., 677; Garnsey v. Rogers, 47 N. Y., 233; Thorp s. Keokuk Canal Co., 48 N. Y., 253; Flower, Guardian, s. Lance, Ex., 59 N. Y., 603; Comstock s. Drohan, Ct. App., Oct. 2. 1877; Calvos. Davies, 8 Hun, 222, Ct. App., April 2, 1878.) Being a surety, the defeudant was . discharged from his liability on the mortgage debt by the agree„ment of June 14, 1870, which agreement varied his contract and . was made without his consent. . (Gahn,s. Niemcewicz, 11 Wend.,. 32; Colemand v. Lamb, 31 Wend., 324; Henderson v. Mamin, 31 Barb., 297; Miller v. Stewart, 9 Wheat., 680; Smith v. U. S., 5 Md., 102; Pooley v. Howardine, 7 El. and Bl., 431; Oriental Financial Corporation v. Over end, Gurney & Co., L. B. 7 Chy. App., 142; Millard v. Thome, 56 N. Y., 402; Colgrove v. Toll-man, 67 id., 95; Pennoyer v. Watson, 16 Johns., 100; Walsh v. Bailie, 10 Johns., 100; Story’s Eq., vol. 1, p. 349; Mayhew v. Boyd, 2 Wall., 219; Bagley v. Clarice, 7 Bos., 94; Wilson v. Edwards, 6 Lans., 134; Ludlow v. Simonds, 2 Caí. Ca., 1; Bangs v. Strong, 7 Hill, 250; Miller v. McCan, 7 Paige, 452; Grant v. Smith, 46 N. Y., 93; The Western H. P. Life Ins. Co. v. Clinton, 66 id., 326; Calvo v. Davies, Ct. App., April, 1878.)
   Gilbert, J.:

That Jones became a surety when Guthrie assumed the mortgage, is no longer an open question. In the case of Meyer v. Lathrop (10 Hun, 60), this point was erroneously decided.

The bond and mortgage having been given by the same person, at the same time, and for a single purpose, they constitute but one contract. (Marsh v. Dodge, 66 N. Y., 537 ; Jones on Mort., §§ 71, 72.) The abrogation of the clause in the mortgage in respect to releasing portions of the mortgaged premises from time to time, was a material alteration of the contract, for by that act the owner of the mo: fcgaged premises, who was primarily liable for the payment of the mortgage debt, was deprived of a valuable privilege in the mode of discharging such debt, and the creditor thereby acquired a more marketable and stringent security for such payment. It js very true, that in case the surety should pay the mortgage debt, he would thereby acquire the right to be subrogated to the rights of the plaintiff, and would thus obtain the benefits which the .creditor derived from the change which has been made in the mortgage. But sureties do not ordinarily prefer such a mode of indemnity. It is better for them that the principal debtor should discharge the debt; and any act that impairs the means which he had provided, or detracts from the facilities afforded him for that purpose, is injurious to the surety. But however that may be, it is a settled rule that the court will not inquire whether the alteration of the contract be beneficial or injurious to the surety. It is sufficient that the alteration is a material one. The surety can be held liable only according to the very terms of his contract. (Miller v. Stewart, 9 Wheat., 680; Bangs v. Strong, 7 Hill, 250; Grant v. Smith, 46 N. Y., 93; Calvo v. Davies, Ct. App., April, 1878.) He has a right to insist upon the exact performance of any condition for which he has stipulated, whether others would consider it material or not. (Per Denio, J., Gates v. McKee, 3 Ker., 237.) The judgment must be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.

Judgment affirmed, with costs.


text:
    JAMES BURKITT, Respondent, v. WILLIAM HARPER and GARRETT V. ELDERT, Impleaded with others, Appellants.

      Mechanics’ lien laxo for Kings and Queens counties — chap. 478 of 1862 — when person “perxnitted ” by owner to build.

    Id a lease, executed by the owners of certain lands in Queens county, it was agreed, as part of its consideration, “ that the improvements built or to be built upon the premises are to revert to the parties of the first part at the expiration of the lease and the lessees also agreed to keep such buildings insured for at least half their value, and in case of fire to devote the insurance money towards rebuilding them; the lessors had the privilege of terminating the lease and taking back the premises for ?!5,000, at any time within three years. The lessees erected buildings upon the premises, with the knowledge of and without objection by the lessors. This action was brought to foreclose a mechanic’s lien, filed by the plaintiff.

      JBéld, that the lessees were permitted by the owners of the land to build thereon, within the meaning of section 1 of chap. 478 of 1862, and that plaintiff was entitled to enforce his lien against the land.
    Appeal from a judgment entered upon the trial of this action, at Special Term, adjudging that the plaintiff has a lien, under the mechanics’ lien act for Kings and Queens counties, chap. 478 of 1862, upon a lot oí land owned by the appellants, and directing a sale thereof to satisfy the same.
    On the 5th of March, 1877, Harper and Eldert made a lease in ' writing of premises at Rockaway, to James E. Davis, of New ' York, for the term of eight years from March 1st, 1877, at a rent’ of $500 for the first six years, and of $600 for the last two years.' This lease contains the following clause: “ And it is expressly ’ agreed by and between the parties hereto, as part of the considertion of the said letting, that the improvements built or to be built upon the premises, are to revert to the parties of the first part at the expiration of this lease, to belong to them without further consideration therefor.” Also, the following provisoin: “And it is further understood and agreed that the party of the second-part, at the expiration of the term, is only to remove the household furniture, cooking utensils, crockery, stock in trade, and drinking, tables, all else is to be included in the improvements, which are to belong to the parties of the first part.” “ And the party of the second part does hereby covenant and agree that he will insure . against fire in- some company, to be approved of by the parties' of the first part, for at least one-half the amount or cost of the buildings erected and to be erected on the premises, and to maintain the same during said term, and in case of fire to devote t-lio pro- ■ ceeds of such insurance to the re-erecti'on or restoration of siich improvements so burned and destroyed.” Also, the following clause: “ And it is further covenanted and agreed that, at any time within three years from date, the party of the second part may purchase the premises hereby demised for $5,000, and receive a conveyance in fee therefor, on which being done this lease and demise shall cease and be canceled.” This lease was recorded in March, 1877, in Queens county.
    On April 18th, following Davis made a contract with the plaintiff, James Burkitt, of New York, that Burkitt should erect and finish for Dávis a new building at Rockaway Beach, on the aforesaid lot of ground. The building was completed according to contract, and the labor performed and materials furnished for erecting the building were of the value of $3,700, and the materials furnished for repairs Avere of the Aralue of $185.
    Eldert lived within half a mile of these premises, and Harper' had a place of business still nearer the premises; and each saw this building in process of erection, from time to time, and made no objection.
    This action was brought in July to foreclose these liens, the plaintiff claiming that Harper and Eldert “permitted” Davis to erect said building, and repair said buildings, on their said lot of land, and that plaintiff, by virtue of his said contract with Davis, and by having furnished labor and materials for such erection and. repairs, has a lien upon Davis’ interest, and also upon Harper and Eldert’s interest in said lot of land.

      Philip 8. OrooJce, for the appellants.

      James McJVamee, for the respondent.
   Gilbert, J.:

The statute relative to mechanics’ liens in the counties of Kings, and Queens, provides that any person who shall hereafter perform any labor or furnish any materials in building, altering or repairing any house or other improvement upon lands, etc., by virtue of any contract with the owner thereof, or his agent, or any-person permitted by the owner of such lands to build, alter or improve as aforesaid, shall have a lien, etc. (Laws 1862, chap. 478, § 1.)

The defendant, Davis, holds the lands in question under a lease for eight years from March 5, 1877, granted by the defendants Harper and Eldert, who are owners of the fee of the lands. The lease contained the following stipulations: 1. That the improve-, ments built, or to be built upon the lands, should revert to the lessors at the expiration of the lease. 2. That the lessee should insure for at least one-half the costs of the improvements afore-, said, and, in case of fire, ■ should devote the proceeds of such insurance to the restoration of such improvements. 3. That the lessee might, at any time, within three years, purchase the demised premises for $5,000.

It is not disputed that the Legislature, by the statute cited, intended to authorize a lien upon the lands of the reversioner in a case like this, provided the work was performed, and the,.materials were furnished with his permission, and such seems to be a proper construction of the statute. Words are to be taken in a natural and obvious sense, and not in a sense unnecessarily restricted or enlarged. (Martin v. Hunter’s Lessee, 1 Wheat., 304; Waller v. Harris, 20 Wend., 561.) Lessees are not owners of the laud, but they have only a chattel interest therein. (1 R. S., 722, § 5.) The reversion is the chief estate, and the reversioner is in law regarded-as the owner of the land. (Smith v. Ferris, 6 Hun, 553.)

The lessees were under no legal obligation to make the improvements in question. They were made with the knowledge and approval of the lessors, and, by the terms of the lease, will belong to them absolutely at the termination thereof. The permission of the lessors to make the improvements was manifested, not only by the tonus of the lease to which I have referred, but by their approval of the work while in progress, and by abstaining from making any objection thereto. It is true they might not have been able to prevent the work being done, but the disability arose from their own acts in making the lease, and they might have withheld their permission by a simple notice to the lienor.

We ai*e of opinion, therefore, that the lessees were permitted by the lessors to make such improvements. (Rollin v. Cross, 45 N. Y., 770; Nellis v. Bellinger, 6 Hun, 560, and cases cited.) The cases of Knapp v. Jackson (45 N. Y., 207), and Muldoon v. Pitt (54 N. Y., 269), are not in point. The statute which governs those cases require that the work shall be done “in accordance with the direction of the owner.” The court very properly held that the statute gave no lien against the owner, unless a con-' tract with him, express or implied, had been made. , Where one orders or directs work to be done on his land, the law will imply a contract on his part to pay for it, but no such implication can be drawn from his merely permitting the work to be done by a lessee. Under the statute which governs this case, however, no contract, express or implied, with the owner is necessary; but his land is bound, if he permits others to make improvements thereon. In this respect there is a marked difference between the statutes. The Legislature, by the statute applicable to this case, expressed their intention that,- one who provides beforehand for taking the benefits produced by the property or labor of another, in the form . of improvements upon his land, or one who assents to the making of such improvements upon his land, knowingly, and for the purpose of deriving the present or future benefit thereof, should have his land subjected to a lien for the value thereof. Cases may arise where a tenant makes repairs in fulfillment of his legal obligation to do so, or causes improvements to be made without either the assent or dissent of his landlord. In such cases the general authority conferred by the lease might not suffice to prove the permission required by the statute last referred to. There must be something in the lease, or some act done by the landlord aliunde the lease, from which an inference may be properly deduced, that the particular work for which a lien is claimed was done with his permission. If the work is done against his will, or without his consent, no lien on his interest is created. If the tenant obtains his permission to do the work, such lien may follow.

Upon the principle stated' we think enough was shown1 tb bind the lands of the lessors in this case. ’’

The judgment must therefore be affirmed, with costs.

Barnard, P. J., concurred.

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

Judgment affirmed, with costs.


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    IN THE MATTER OF BENJAMIN BRANDRETH.

      Discharge of judgments against bankrupt — applies to those in favor of the people — Code of Civil Procedure, § 1268.
    Section 1268 of the Code of Civil Procedure authorizing the court, at any time after two years have elapsed, since a bankrupt was discharged from his debts, to direct that any judgment entered against him be discharged of record, applies to judgments entered against him in favor of the people.
    Appeal from an order directing the cancellation and discharge of a judgment against the petitioner, in pursuance of section 1268 of the Code of Civil Procedure.

      The appellant, The People, recovered a judgment against the petitioner on April 29th, 1865, on a bond on which he was surety for the Bank of Sing Sing.
    On June 30th, 1868, he was discharged from all his debts under the bankrupt law. The question was, whether the judgment recovered by the people was embraced within the provisions of section 1268 of the Code of Civil Procedure.

      James 8. Stearns and John S. Smith, for The People, appellants.
    The sovereign is unaffected by any acts by which its rights can be abridged in any way, unless the intention to so abridge those rights be expressed in the enactments. (Savings Bank v. United States, 19 Wallace, 239.) The principle has been applied to the statute of limitations. (The People v. Supervisors of Columbia County, 10 Wend., 363; The People v. Gilbert, 18 Johns., 227.) To a discharge under theinsolvent law. (People v. Rossiter, 4 Cow., 143;' People v. Herkimer, 4 Cow., 348.) A debt due to the United States is not discharged by the discharge of the debtor in bankruptcy. (United States v. Herron, 20 Wallace, 251; United States v. Rob Roy, 13th Nat. Bk. Reg., 235.'

      Philo Chase, for the respondent, Brandreth.
   Gilbert, J.:

The petitioner has been discharged by proceedings in bankruptcy from all his debts which were provable under the provisions of the Bankrupt Act. It has been held by the Supreme Court of the United States, that such a discharge is not a bar to a debt due the United States, ■ upon the principle of the common law, that when a statute is general, and any right, title or interest would be divested or taken from the Icing, he shall not be bound, unless the statute is made, by express words, to extend hi him (United States v. Herron, 20 Wall., 251); and the same principle was formerly applied to State statutes which took away any right or interest belonging to the people, unless the statute, in express terms, embraced them. (People v. Herkimer, 4 Cow., 348.) In the last case, the principle was appliéd to a discharge, under the Insolvent Act.

The rule of statutory construction referred to is founded on the presumption that the Legislature, if they intended to divest the sovereign power of any right, privilege, title or interest, would say so in express words; and when the act contains no words to express such an intent, it will be presumed that the intent does not exist.

■We think the Legislature of this State have manifested their, intention that that rule, for the construction of statutes like the Bankrupt Act, shall be abrogated. Proceedings under the insolvent laws of the State affect the people, as well as individuals. (2 R. S., 39, § 30). They are bound by the statute of limitations (Code of Civil Procedure, § 389), and are liable for costs. The ordinary rules governing legal proceedings apply to them. (2 R. S., 552, 553, § 13.) The section of the Code of Civil Procedure (1268) under which this proceeding was taken, requires the court to make an order discharging the judgment, if it appears that the petitioner has been discharged from the payment thereof. It does appear that the petitioner has been discharged from all his debts provable under the Bankrupt Act. The debt in question was'so provable. Although the statutes of this State which have been cited, do not, in terms, alter the rule of construction of statutes, to which we have referred; yet, an adherence to stich rule, in the present case, would be incompatible with the spirit of the legislation, which they indicate. We shall, therefore, hold that the petitioner’s discharge embraces the judgment in question.

Order affirmed, without costs.

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

Order affirmed, without costs.


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    MARGARET LOOFF and others, Appellants, v. CYRUS LAWTON, Respondent.

      Deceit by an attorney — what constitutes —2 £. 287, section 68.
    To authorize an action under 2 Revised Statutes, 287, section 68, giving an action against an attorney, counsellor or solicitor, for any deceit, with intent to deceive the court, or a party, it is not necessary that the acts of the attorney should be such as to constitute a common-law or statutory cheat.
    An attorney who knowingly misleads the coux-t, or a party, is guilty of a criminal deceit under the statute.
    An attorney who advises ignoi'ant adult owners of land that they ai’e not competent to convey it, and thei’eby induces them to employ him to institute a suit in partition, and incur the expenses thereof, for the purpose of affecting a sale of the lands, misleads and deceives them within the meaning of the statute.
    Appeal from a judgment in favor of the ...defendant, entered upon an order dismissing the complaint, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This action, was brought by the appellants against the respondent to recover the costs and charges of a suit in partition, brought by the advice of the respondent, by one of the appellants against the others.
    Upon the trial, a motion was made, upon the part of the defendant and respondent, to dismiss the complaint on the opening, on the ground that the complaint did not state a sufficient cause of action. The point relied on in support of the motion was, that the action was one of deceit under the Revised Statutes, vol. 3, sec.56, p. 449 [6th ed.], and that no misrepresentation of fact was alleged.
    The complaint alleged that the appellants, who were adult owners of real estate, being desirous of selling the same and dividing' the proceeds, applied to the defendant, an attorney-at-law, for advice as to the best mode of accomplishing this object.
    “ That thereupon the said defendant, 'as such attorney and couusellor-at-law, and under said retainer and employment, advised and counselled the plaintiffs that they were not competent to convey said property by deed, and that they could not give a good title therefor, and that the best, shortest, and cheapest manner in which to accomplish their said intent, wish and purpose, was to institute a suit in partition, and sell the property under a decree to' be obtained therein.
    “That said advice and counsel was so given, willfully, corruptly and fraudulently, with intent to deceive and defraud these plaintiffs, and to induce them to institute and maintain a useless and expensive suit, with full knowledge on his part; that if accepted, believed and followed, the plaintiffs would be subjected to great and unnecessary expense to his, the defendant’s, great benefit, profit and advantage.”
    That in reliance upon his advice, a partition suit was commenced and the property sold, in pursuance of a judgment rendered therein, and that they were obliged to pay, as costs and fees in said suit, the sum of $1,345.70, which amount they sought to recover in this action.

      M B. Bamum, for the appellants.

      D. jP. Barnard, for the respondent.
   Gilbert, J.:

We think the court erred in granting a nonsuit. The statute on which the action is brought (2 R. S., 287, § 68), gives an action against an attorney, counsellor or solicitor for any deceit, with intent to deceive the court, or a party, and makes such conduct a misdemeanor, punishable by fine or imprisonment, or both. The acts or omissions which shall constitute deceit are not defined. There seems to be no good reason for confining the term to common law or statutory cheats. On the contrary, there is every reason to suppose that the Legislature intended otherwise.

The common law, as well as the statute, relating to the offense .of obtaining property by false pretenses, were adequate to the punishment of all such offenses, whether committed by lawyers or laymen. Moreover, such an offense being punishable by imprisonment in a State prison, comes under the statutory definition of a felony. At common law, also, fraud and damage gave a civil action to the party injured. There was no occasion, therefore, for another statute to punish, or to give an action for the “ deceit ” of lawyers, unless the Legislature intended that that class of persons should be liable for acts which would be insufficient to establish a crime or a cause of action against citizens generally. The statute is limited to a peculiar class of citizens, from whom the law exacts a reasonable degree of skill, and the utmost good faith in the conduct and management of the business intrusted to them. An attorney or counsellor who advises ignorant adult owners of land that they. are not competent to convey it, and thereby induces them to employ him to institute a suit in partition, and incur the expense thereof, for the purpose of effecting a sale of the lands, gives them erroneous advice, and thereby misleads them to their injury, and if he is qualified to perform the functions of an attorney, he does it knowingly. To mislead the court or a party is to deceive it; and, if knowingly done, constitutes criminal deceit under the statute cited. (Verplanck v. Van Buren, 11 Hun, 328, and cases cited.)

y If a jury should find that the conduct imputed to the defendant was deceit, I apprehend their verdict would not be disturbed. When the attorney or counsellor, makes a profit by means of such deceit, it is not unreasonable to conclude that the advice was given \.with that motive and for that object. That makes out the guilty intent. In every point of view, the case seems to us to be one . which should have been submitted to the juiy.

The judgment and order denying a new trial must be reversed, and a new trial granted, with costs to abide the event.

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

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


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    MARY A. MUMPER, Administratrix, Etc., of A. L. MUMPER, Deceased, and others, Appellants, v. BENJAMIN F. RUSHMORE, Sheriff of Queens County, Respondent.

      Geneml assignment — when a delivery not essential — effect of, on property levied upon by the sheriff.

    "Where a debtor makes a general assignment of an interest in goods not in bis possession, or under his control, a delivery to the assignee is not essential to the validity of the assignment.
    "Where the sheriff has seized the debtor’s goods under an execution, the assignment will transfer the debtor’s interest therein, subject to the lien of the execution, as against a subsequent attaching creditor.
    Appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the Circuit.
    The action was brought to recover damages for a false return to an attachment under the.Code, issued to defendant as sheriff, and for a false return to an execution issued to him upon the judgment recovered in the suit in which the attachment was issued. The attachment was issued to him on the 5th February, 1877, at which time he ivas in possession of all the debtor’s property, under a levy made January 8, 1877, on an execution in favor of the Brooklyn Bank, under which a sale of a portion of the property was made February 14, 1877. On February 3, the debtor made a general assignment for the benefit of ci’eclitors. The evidence shows there remained a large amount of the debtor’s property in the (sheriff’s) defendant’s hands after the satisfaction of the bank judgment.

      P. 8. Oroohe, for the appellants.
    There was no delivery of the chattels by Peck, the debtor and assignor, to the assignee, the chattels being at that time in the hands of the sheriff, under the levy in favor of the bank. (Bullís v. Montgomery, 50 N. Y., 550.) The assignment, unaccompanied by a delivery and change of possession, passed no title to the assignee. (2 R. S. [4th ed.], 136, § 5.) The assignee parted with no value and was not a purchaser for a valuable consideration. (Curtis v. Leavitt, 15 N. Y., 195; Van Heussen v. Iiadcliff, 17 id., 580.) The.plaintiffs, as creditors, attaching property in the possession of the debtor or his bailee, the defendant, as sheriff, acquired a specific lien thereon, and is entitled, like a judgment-creditor, to impeach the colorable title of third persons. (Frost v. Mott, 34 N. Y., 253: Rinchey v. Stryker, 26 Howard, 75; S. C., 31 N. Y., 45; Hall v.- Stryker, 27 id., 596.)

      John J. Armstrong, for the respondent.
    The defendant, Robert E. Peck, having made an assignment of all of his property for the benefit of his creditors prior to the issuing of the attachment or its receipt by the sheriff, and there being a full compliance with the statute in the making of the inventory and the giving of the bond, there was no property upon which the sheriff could levy the attachment. (Ireland v. Rathbone, 39 N. Y., 369; Blovin v. Bleakley, 23 IIow., 124; see, also, 1 Wend., 92; 22 id., 622; see, also, Murcoll v. Woolworth, 14 How., 477; •Baler v. Ken-worth, 41 N. Y., 215.)
   Gilbert, J.:

The nonsuit in this case was.clearly right. Before the plaintiff’s attachment was issued, the debtor in the attachment had made an assignment of all his property to an assignee upon trust to pay his debts. When this assignment was made, the property assigned was in the custody of the sheriff under a levy under an execution, in favor of another creditor, which had been issued prior to the assignment. The sheriff testified that he levied only upon goods sufficient to satisfy the execution, but we think his acts amounted to a levy upon all the goods. The assignment, therefore, transferred the interest of the assignor in the goods, subject only to the lien of the execution which was first issued, and it was effectual for that purpose. In such a case an actual change of the possession of the assigned property is not necessary. The deed transfers the title as between the parties to it, and the non-change of possession does not render the assignment void, as to the creditors of the assignor, for the reason that by the common law, and the statute in affirmance thereof, it is the retention of possession by the assignor, and not merely the non-delivery to the assignee, that is made the evidence of fraud in the transaction. If the assignment be of an interest m goods not in the possession of the assignor, ;o.r under his control, an actual delivery thereof is not required. (2 R. S., 136, § 5; Klinck v. Kelly, 63 Barb., 623; Ball v. Loomis, 29 N. Y., 412,)

The plaintiff had not the right to require the sheriff to enforce the attachment against the assigned property, notwithstanding jhe assignment, without indemnifying him. ; ■

The judgment must be affirmed, with costs.

Barnard, P. 3., concurred, Dykman, J„ not sitting.

Judgment affirmed, with costs.


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    JOHN SEGELKEN, by his Guardian ad litem, ANDREW KOCH, Ppaintiff, Appellant and Respondent, v. OTTO MEYER, Defendant, Respondent and Appellant.

      Infant — right of, to maintain action.

    The right of the general guardian of an infant to bring an action to recover money belonging to his ward, is not an exclusive one, and the infant himself may, by a guardian ad litem, duly appointed, bring an action to recover the same.
    'The general guardian may, in such case, be appointed guardian ad litem.

    Cross-appeals from an order vacating an order of arrest, granted in this action on condition that defendant stipulate not to bring a suit .by reason of such arrest.
    This action was brought by the plaintiff, an infant, by guardian ad litem, against the defendant, an attorney, to recover money belonging to the plaintiff, which defendant was alleged to have, •received from plaintiff’s mother.

      ■ '•■■■ 'Qhristian Q. Moritz, for the plaintiff.
    This action was properly brought by the guardian. ad litem, Andrew Koch. (Lon-•street v. Tilton, Coxe,-38;. Sillings/Y. Bumgardner, 9 Gratt., 273; '-Stratton’s Case,. 1 Johns.,'508;;,Tp,tten’s Appeal, Penn. St., 301; . 'Bradley v. -Arnidown, 10 Paige,,.235.V- :An infant can maintain. an action for use and occupation, although he has a general guardian; (Elizabeth L. Porter v. Bleiler, 17 Barb., 149.) An infant has a right to enter and bring ejectment. (Macpherson on Infants, 354.) Debts and demands of the wards should, in general, be prosecuted in their name. (Shoulder’s Domestic Relations, note 463.) The guardian cannot sue on an award, although he has submitted to arbitration. (Hutchins v. Johns, 12 Conn., 376.) Nor where the statute authorizes guardians to demand, sue for, and receive all debts due their wards. (26 Me., 76; 11 Ills., 24; section 468 of the new Code of Civil Procedure.)

      Douglas A. Levien, Jr., for the defendant.
    The plaintiff, having a general guardian of his person and estate, any action to be brought in relation to his personal estate, must be brought by his general guardian, in whom it is vested. (2 R. S., 150, § 3, and 151, § 10; Seaton v. Davis, 1 T. & C. Sup. Ct. R., 91; Field v; Schieffelin, 7 Johns. Ch., 150; Tuttle v. Heavey, 59 Barb., 334; White v. Par Jeer, 8 id., 48; Genet v. Tallmadge, 1 Johns. Ch., 5; Thomas v. Bennett, 56 Barb., 197; Chapman v. Tibbits, 33 N. Y., 287; Beecher v. Crouse, 19 Wend., 306.)
   Gilbert, J.:

No doubt the general guardian might have brought this action in his .own name. Such right of action rests upon his duty to take the control and management of the infant’s personal estate. It is also conferred upon all trustees of express trusts by statute. But it does not follow that the right of action of the general guardian is exclusive of that of the infant. On the contrary, the legal title to the moneys in controversy is vested in the infant, and his general guardian is merely his bailiff or trustee. As the moneys, belong to the infant, I see no objection to the appointment of a guardian ad litem to sue for the recovery of them in a proper «ase. (Thomas v. Bennett, 56 Barb., 197, and cases cited; 2 Kent Com., 240.) The only question heretofore has been, whether the general guardian could maintaiu an action to recover debts-due the infant; and although that question has been set at rest . the converse one respecting the right of the infant by a guardian-ad litem to maintain such an action, has not, to my knowledge, been authoritatively denied. The infant having a right to sue on the ground of his general property, it must be done by a guardian ad litem, (Code of Civil Procedure, §§ 468, 469), who may in some cases be appointed on the application of the general or testamentary guardian. Section 47 6 also recognizes an appointment of the general guardian as guardian ad litem. (See also Schoul. Dom. Rel., 592, et seq., and authorities cited.) As the moneys must, when recovered, be paid at once to the general guardian, there is not ordinarily any occasion for such a proceeding. But infants are wards of the court, and the court has power, whenever it deems it necessary, to appoint a guardian to prosecute or defend an action for them. The papers do not show the reasons for the appointment of the .guardian ad litem in this case. It is not, however, material to inquire what the reasons were, because he is also the general guardian of the infant. The defendant will be as fully protected by a payment, as if the action had been brought by the guardian ad litem in his capacity of general guardian.

; The allegation of an actual conversion of the moneys renders the averment of a demand superfluous. In other respects the facts stated are sufficient to warrant the order of arrest.

: The order appealed from must be reversed, with ten dollars ■costs and disbursements.

Dykman, J., concurred.

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

Order vacating order of arrest reversed, with ten dollars costs •and disbursements.

Part of order imposing stipulation not to sue for false imprisonment reversed, without costs.