author: Bradley, J

text:
    Nathan Hasberg, Resp’t, v. John B. McCarty, App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Fraud—Prompt disaffirmance necessary upon discovery.
    What is due or requisite promptness of action to disaffirm a contract procured by fraud is somewhat dependent upon circumstances.
    2. Same.
    Where the injured party has realized nothing, and in January learned facts tendiug to stamp the transaction as fraudulent and charged it upon defendant, who seemed surprised and assumed not to have heard that such was the situation, and plaintiff did not commence his action until May, shortly after defendant’s return from a trip to Europe, Held, that it was not such a delay in disaffirming the contract as would confine him to an action for damages.
    3. Same.
    The fact that plaintiff continued in the service of the corporation to which by fraud he had been induced to transfer his property, after discovering the fraud and after the commencement of this action for an accounting, did not necessarily prejudice his right to disaffirm the contract by which he transferred it.
    Appeal from judgment entered upon order of the general term of the court of common pleas of the city of Mew York, affirming interlocutory and final judgments in favor of the plaintiff.
    The action was brought for an accounting of the partnership matters of the parties, and to annul for alleged fraud an agreement between them. They were partners in the mercantile business in the city of Mew York from February, 1875, until in January, 1884, when the defendant joined with two other persons in organizing a corporation known as the Marty & Hall Trading Company, Limited, to carry on the like business. In contemplation of such organization, and upon the suggestion and request of the defendant, an agreement in writing between them was executed by him and the plaintiff, whereby the latter transferred his interest in the merchandise of the firm to the defendant, and it was agreed that the defendant should transfer it to the corporation and receive the capital stock at par value for it; that the stock should be taken and held in the name of the defendant with power in him to vote on it and dispose of it as he should see fit, he to pay the plaintiff dividends when received upon it, and the proceeds of the sale in the event he sold the stock; and that the defendant should have the right, at any time, to deliver the stock to the plaintiff in full settlement of the claim of the latter for the goods. It was also provided by it that the plaintiff accepted the provisions of the agreement in full payment and satisfaction for the transfer of the merchandise. The corporation was created and the goods were transferred to it by the defendant. The capital stock of the company was $250,000, and was taken by the corporators pursuant to an arrangement between them that the capital stock should consist of the goods before mentioned at the price of $58,000, a certain patent held by the defendant at $5,000, and the good will of the business of his firm at $25,000, making $88,000, for which he should have that amount of the capital stock; that the other corporators should put in their stock of merchandise at $97,000, a certain patent at $20,000, the good will of their business at $25,000, and cash $20,000, making $162,000, for which they should have that amount of the capital stock. This was accomplished. And the plaintiff alleged that he was induced to enter into the agreement made by him by the representations (amongst others) fraudulently made to him by the defendant that the $250,-000 of capital stock would be based and issued upon that amount of cash paid in for the purpose. The court found that plaintiff’s agreement was obtained by fraudulent means on the part of the defendant, and determined that it was for that reason invalid as against the plaintiff, and that he was entitled to relief; and pursuant to interlocutory decree to that effect an accounting was had upon which final judgment was rendered in favor of the plaintiff for $36,193.62, and costs.

      John H. V. Arnold, for app’lt; Nathaniel Myers, for resp’t.

       Modifying and affirming 14 N. Y. State Rep., 697.

   Bradley, J

The agreement of January 24, 1884, was apparently an obstacle in the way of the accounting sought by the plaintiff, and attention was by the evidence directed to the circumstances under which it was made. Whether or not any occasion existed for the charge that the plaintiff was induced to execute it by deceptive means, used by the defendant, was the subject of conflict in the evidence of the parties.

The testimony on the part of the plaintiff tended to prove that his consent to make the agreement and his execution of it were procured by false representations to and deceptive concealment from him by the defendant of facts material to the apparent purpose of the instrument. And the finding of the trial court that the plaintiff’s agreement was fraudulently obtained by the defendant, not being without evidence for its support, must, for the purposes of this review, be deemed conclusive. It is, however, urged that the plaintiff by delay lost the opportunity he otherwise may have had to rescind the contract. He was required to act with reasonable promptness, on discovery of the fraud, in disaffirmance of it to sustain his right to do so, and if, after such discovery, he accepted or received any benefit from the contract his only remedy remaining was for damages. Cobb v. Hatfield, 46 N. Y, 533. It may be observed that the plaintiff took nothing except the expectant rights afforded by the terms of the contract, from which he realized nothing. He commenced this action in May, 1885, shortly after the defendant’s return from a trip to Europe. And, while the plaintiff’s evidence tends to prove that in January or February of that year he learned something of the facts in respect to the character of the capital represented by the stock, and about the same time called the defendant’s attention to in, the latter did not concede them, but seemed surprised and assumed to never have heard that such was the situation. What is due or requisite promptness of action to disaffirm is somewhat dependent upon circumstances. The defendant was not in any manner prejudiced by the omission of the plaintiff to take steps to disaffirm the contract two or three months before he commenced this action, and it may have been inferred from the evidence that the defendant was abroad half or more of that time. Then the treatment of the subject by him when his attention was so called to it by the plaintiff may have justified some hesitation or doubt on the part of the latter either as to the correctness of his information or of the culpability of the defendant in the matter. And it may be added that nothing appears requiring the conclusion that the plaintiff did anything in affirmance .of the contract after he received the information before mentioned. The fact that he continued in the service of the corporation thereafter and after the commencement of this action, did not necessarily prejudice his right to disaffirm. His service there was not pursuant to the contract or necessarily dependent upon it. It cannot, as matter of law, properly be held upon the evidence that the plaintiff’s right to disaffirm the contract was lost by any delay on his part

There is a matter of interest from February, 1875, allowed ,to the plaintiff upon $2,500, said to have been loaned by him to the defendant, and placed to the credit of the latter as capital in the firm. The time when that was done was not very clearly shown. And by a provision in a written agreement between the parties of date March 25,1884, the principal sum was presumptively adopted as the amount then due on account of that loan. The interest so allowed upon the $2,500 in excess of the interest from that date should be deducted from the recovery, and, as so modified, the judgment should be affirmed, with costs to the plaintiff.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Asa W. Parker, Resp’t, v. Theresa B. Collins et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Mortgage—Foreclosure—When wire bound by agreement or HUSBAND.
    The action was to foreclose a $22,000 mortgage, given to enable defendant to erect houses upon the mortgaged premises. Plaintiff advanced $350 only to defendant. Her husband had charge of the work of construction, and had previously purchased materials from H. & D. Defendant not being present at the time the mortgage was prepared, her husband agreed with D. that his wife owed H. & D. $5,000, and the plaintiff relying thereon purchased their claim, and agreed with the husband that the $5,000 should be part of the consideration of the bond and mortgage. Held, that defendant not being present, and so far as appears not having knowledge of the agreement when she executed the mortgage, she was not chargeable with any arrangement made by him.in respect to the purpose for which the mortgage was given, other than such as was imported by its terms.
    2. Same.
    The plaintiff having advanced the money, not to pay the debt, but to obtain an assignment of H. & D.’s claim, stood in the same relation to Mrs. Collins in respect to the claim as had his assignors before the transfer to him, and it was subject to the like inquiry by her into the amount due as if it had still been held by them. The adjustment of it by the husband was erroneously made, and was subject to review and correction.
    Appeal from judgment entered upon order of the general term of the supreme court, in the second judicial department, affirming judgment of the county court of Kings county, entered upon report of a' referee in favor of the plaintiff.

      Horace Graves, for app’lts; E. G. Nelson, for resp’t.

       Reversing 24 N. Y. State Rep., 733.

   Bradley, J.

This action was brought to foreclose a mortgage made by the defendants Collins to the plaintiff to secure by its terms the payment on demand of $22,000, according to the condition of a bond made by the mortgagors of date April 13, 1888. The purpose of the mortgage was to raise money to enable the defendant Theresa B. Collins to proceed in the erection of houses upon the mortgaged premises oí which she had the title. The plaintiff advanced to the defendant only $350 in money. Mrs. Collins afterwards conveyed the premises to the defendant Tilney. The plaintiff claimed, and the referee found, that the amount of the principal sum secured by and due on the mortgage was $5,350, and the controversy relates to the claim of the $5,000. The defendant Jeremiah J. Collins was the husband of Theresa, and as her agent had charge of the work of construction, on these and other premises, of houses which had, at the time the mortgage was made, progressed to considerable extent, and for that purpose he had on her behalf purchased materials from Hobby & Doody. The evidence on the part of the plaintiff tended to prove that at the time the mortgage was prepared at the office of the plaintiff the amount then due from Mrs. Collins to them was agreed upon between her husband and Mr. Doody as $5,000, and it was then understood it should be paid by the plaintiff, or an assignment of it taken by him from Hobby & Doody, and that such sum should be a part of the amount secured by the mortgage.

This was contradicted by the evidence of the husband: and the referee found that on the 13th day of April, in the presence of the plaintiff, it was mutually agreed between the defendant Jeremiah J. Collins, as the agent of his wife, and Doody that there was due his firm of Hobby & Doody from the wife $5,000; that the plaintiff, relying upon such agreement, purchased from that firm their claim against her and paid them therefor $5,000; that on that day it was agreed between the plaintiff and Mr. Collins, as agent of his wife, that the plaintiff should make to her a loan of $22,000, to be secured by her bond and mortgage upon the premises, the amount to be advanced as the buildings progressed, except as to the $5,000 assigned to the plaintiff by Hobby & Doody, which should be part of and included in the consideration of the bond and mortgage; and that pursuant to such agreement the bond and mortgage were on that day prepared. They were on the same day executed by the defendants Collins and delivered to the plaintiff. The defendant, Mrs. Collins, was not personally present at the time such agreements were made, and, so far as appears, had no knowledge of them at the time she executed the mortgage. And presumptively she was not chargeable with any arrangement made by her husband in respect to the purpose for which the mortgage was given other than such as was imported by its terms. Gilbert v. Deshon, 107 N. Y., 324; 12 N. Y. State Rep., 492 ; Craver v. Willson, 14 Abb., N. S., 374; 47 N. Y, 673; Bank of Albion v. Burns, 46 id., 170; Smith v. Fellows, 9 J. & S., 36.

The mortgage purported to have been given to secure the payment of a sum certain which Mrs. Collins had by the bond undertaken to pay the plaintiff. And the husband, without some authority from her to do so, could not by having the possession of the mortgage and delivering it charge by it her premises with anything other than her debt She testified on the subject that she signed the mortgage with the understanding that money secured by it, amounting to $22,000, was to be drawn as required to finish the buildings. That evidently was substantially the purpose of the mortgage, and it was intended to secure whatever up to such sum should be advanced on that account by the plaintiff.

The husband was the agent of the wife in attending to the work of construction, purchasing and paying for the materials and making use of her money for that purpose. And in that agency was the authority to settle with parties who had performed work upon or furnished materials for the buildings and adjust the amount due them from the wife. Anderson v. Coonley, 21 Wend., 279. This is what the referee found he did with Hobby & Doody. The payment of the amount due them may be treated as within the purpose for which the husband was authorized to raise money upon the mortgage; and if the plaintiff had upon the adjustment of the amount owing to those parties advanced it at the request of the husband as the agent of his wife, it would have fairly been within the security contemplated by the execution of the mortgage. But is that in fact the situation presented by the evidence and findings of fact ? This inquiry is rendered material by the finding of the referee that the amount then actually due from the plaintiff to Hobby & Doody was only $3,920.76. The plaintiff did not advance the money to pay the debt due to them, but advanced it to obtain an assignment of their claim to himself pursuant to arrangement with the husband. It was not within the scope of authority of the latter as the agent of his wife to adjust the amount due those persons for the purposes of an assignment of their claims to the plaintiff and therefore the wife was not estopped from questioning the actual amount due upon it. Bickford v. Menier, 107 N. Y., 490; 12 N. Y. State Rep., 304. The plaintiff having advanced the money not to pay the debt, but to obtain, which it seems he did, an assignment of it, stood in the same relation to Mrs. Collins in respect to the claim as had his assignors before the transfer to him ; and it was subject to the like inquiry by her into the amount due upon it, as if it still had been held by them. The adjustment of it with them by the husband at a specific sum it seems was erroneously made and was subject to review and correction.

These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulate to deduct from the recovery $1,079.24 and interest upon the sum so deducted, from April 13, 1888, and in that case the judgment be so modified and as modified affirmed, without costs in this court to any party.

All concur.


author: Macomber, J.

text:
    Charles B. McNair et al., App’lts, v. The Rochester, New York & Pennsylvania R. R. Co. et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Fixtures—Removal of track—trespass.
    A life tenant of real estate agreed in writing with a railroad company that, pending an appraisement of damages, the latter night enter on the land and lay track, which was done. Thereafter he also agreed to convey a right of way across the land to said company. No appraisal of damages was made, and the company removed the track and abandoned the right of way. The remaindermen were infant children of the life tenant, who resided with him and had no general guardian, 1Fid, that said company was not a trespasser, having entered under the consent of the life tenant, and the consent of the remaindermen, as far as they could speak by their guardian in socage, and that there being no provision in the contract that the structures placed on the land by the company should belong to the plaintiffs in case the company failed to insitute and carry on condemnation proceedings, their removal was lawful, and no recovery could be had therefor.
    Appeal from a judgment entered in Livingston county on the report of a referee, dated April 16, 1889, dismissing the plaintiff’s complaint on the merits, with costs.

      James Wood, for app'lts; Frank S. Smith for resp’ts.
   Macomber, J.

This action is brought to recover the sum of $820.95, the value of certain property consisting of rails, fastenings, materials and structures placed on plaintiff’s land for railroad purposes. The plaintiff, Charles B. McNair, was, at the time of the beginning of this action, and now is, the owner of a life estate in the land upon which this property was located. The other plaintiffs, who are his childen, are the remaindermen, and entitled to the fee of such land at the death of their father.

The defendant corporation is the successor of a railroad company known as the Rochester, Nunda & Pennsylvania Railroad Company which was orginzed under the laws of the state of New York, to the property, rights and franchises of which the present corporation defendant succeeded. On the 3d day of June, 1872, the plaintiff, Charles B. McNair, entered into astipulation in writing by which it was agreed between him and the railroad company that certain persons should be named as commissioners to ascertain and appraise the damages to be paid by the company to the land owners for the construction upon these lands of the structures of the railroad.

Pending the. ascertainment of the damages, it was agreed that the railroad company might enter upon the lands for the purpose of constructing its railroad. In accordance with, this agreement the railroad actually entered upon and took possession of the lands under this writing. On the 20th day of June, 1872, Charles B. McNair served a notice upon the railroad to the effect that, inasmuch as the company had violated a part of the agreement by failing to ascertain the damages due to the land owners, the company was forbidden from entering upon the premises or from further prosecuting the construction of a railroad upon the plaintiff’s farm. This notice, however, is of very little importance to the correct determination of this case, because on the 25th day of Junc, 1873, Charles B. McNair entered into a contract in writing with the same company, whereby he agreed to convey to the railroad company a certain right of way across the land, to be used for railway purposes only. By this agreement the railroad company was to pay for the land the sum of $325, $200 of which had already been paid Mr. McNair.

The fact that Charles B. McNair at this time had a "life estate only was well known to all parties, and reference thereto was made in the agreement itself. The railroad company failed wholly to institue any proceedings to acquire the right of way or to pay, further than it had already done, any damage to any of the plaintiffs for the occupation and use of the land for railroad purposes. Nevertheless the company continued in the possession of the right of way and completed its structure, and placed on the lands of the plaintiffs rails, fastenings, material and structures suitable for its purposes. Up to that time all the remaindermen were infants having no general guardian. After the removal of the property by the present defendant corporation from the plaintiffs’ lands, the right of way across the lands described in the complaint was abandoned, and the lands have remained in the possession of Charles B. McNair.

This action cannot be maintained unless it be shown that the railroad company, the predecessor of the present defendant, was a trespasser; but the facts above disclosed, which are undisputed, show that the company cannot be regarded in any legal sense a trespasser, for it had, at the inception of its occupation of the lands, and throughout such occupation, with the exception of the protest of Charles B. McNair, above mentioned, the permission of the life tenant. The authorization given by him to the company was not only in writing, but was given far a valuable consideration. Under the first agreement the occupation of the railroad company was clearly contemplated by the minds of both parties, and in fact the writing between the parties expressly provides in terms that the railroad company might enter upon the land for the purpose of constructing its railroad, and the other written agreement was made after the company had begun znak ing its structures, and by its terms fully recognized the right of the company to continue the occupation for the purposes .named.

It is not even contended by the learned counsel for the appellants that Charles B. McNair could, by any act of his own, turn the occupation of the company, which was there given with his .full knowledge and consent, into a trespass so as to enable him to maintain an action, but it is contended with some earnestness by the counsel that the other plaintiffs are not bound by the acts of their father. It is contended that as they were not parties to the original transaction, so they are not bound or affected by anything which the life tenant did in his own or in their behalf. It is true that the children were at that time all infants, having no general guardian, but they resided with their father, the life tenant, upon this farm. Charles B. McNair was their guardian in socage, and he continued to represent such infants and their rights, so far as they could be represented by any guardian, certainly up to the time they were fourteen years of age, and probably up to the time that an actual guardian had been appointed | by a court or judge. By § 20 of R S., 153, Charles B. NcNair was required to keep and sustain the houses, gardens and other appurtenances to the lands of his wards from the issues and profits thereof or with their moneys in his hands as such guardian in socage.

In the case of Emerson v. Spicer, 46 N. Y., 597, the general rule is stated to be, that a guardian in socage may take the lands -during the guardianship.

The power of the parent, under these circumstances, to permit the occupation of the lands was terminable only, either upon the arrival of the infants at the age of twenty-one years, or by the-appointment before that time of another guardian. Emerson v. Spicer, supra, 598.

As was the case in Matter of the Norwood & Montreal R. R. Co., 47 Hun, 490 14 N. Y. State Rep., 437, the entry on the land was= with the consent of the appellant, Charles B. McNair, and so far as it was possible, it was also made with the consent of the infants.

The structures being thus erected lawfully and with the consent of the parties interested in the lands as life tenant and remaindermen, so far as the latter could speak by their guardian in socage, it would seem to follow, necessarily and logically, that there can be no recovery for their removal upon the ground that they had become a part of the realty, for up to the time of removal the occupation of the company had not been illegal.

The contention of the appellants cannot be sustained by any analogy derived from the law of landlord and tenant. No tenancy was agreed upon between the parties to the original contracts. The occupation was provisional, to be followed by an actual acquisition to the title to the lands for railway purposes. It was the duty of the railroad company to institute proceedings- and to carry them on, under the agreement by which the plaintiffs’ title to the land was to be acquired. It failed to do so. The right of action, therefore, if any, which accrued to the plaintiffs, arose out of the failure of the railroad company to keep its written engagement, and was for a breach of that contract. The plaintiff’s did not "have the power, at their option, to treat the company, either as one who had failed to fulfill its agreement, or as a trespasser from the beginning of the occupation of the lands, for the reason that the relation of the parties was created by an agreement which continued until the removal of the structures There being no provision in the contract that, the structures so placed by the company on the lands should belong to the plaintiffs in case the company failed to institute and carry on condemnation proceedings, their removal by the defendants, under the facts stated, must be deemed lawful.

The judgment appealed from should be. affirmed.

Dwight, P. J., and Corlett, J., concur.


text:
    John E. Richardson, Assignee, Pl’ff, v. Elizabeth W. Hunt et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Will—Construction—Trust.
    By his will testator gave one-third of his real estate to his wife for life in-lieu of dower and from and after her death gave the same to trustees until his son George came to full age or until the death of both the wife and said George, and then provided that upon the death of both the wife and said George, the said one-tliird should be divided in the manner provided-, until which time said share and the rents and prots thereof should remain undivided. The son George having become of age and died during the life of the wife, Held, that as the devise to the widow for life was absolute and the trust for accumulation of rents was void, except during the infancy of the son George, no trust remained to be executed on the death of the wife and so no title passed to the trustees.
    2. Same—Title.
    The land descended to the other heirs subject to the execution of the trust as a power in trust, and the share of one of such heirs, being alienable, passed under an assignment for creditors made by him during the life of the widow and after the death of George.
    Submission of controversy under § 1279 of the Code of Civil Procedure.

      Charles A. Hawley, for pl’ff; Henry W. Conklin, for def't Elizabeth W. Hunt.
   Macomber, J.

This controversy arises out of the adverse claims made to certain real estate. The plaintiff’s title thereto is based upon a general assignment for the benefit of creditors, executed by the defendant William M. Hunt, on the 1st day of March, 1879. The defendant, Elizabeth W. Hunt, demands such property by virtue of an assignment to her, made by the same "William M. Hunt, on the 5th day of December, 1889. The claims of both parties are made under the last will and testament of Richard R Hunt, who died on the 7th day of November, 1856, which will was admitted to probate by the surrogate of Seneca county. The defendant Hadley is the only survivor of the executors and trustees named in such will. In his representative capacity he has no interest in the issue made by the submission between the plaintiff and the defendant, Elizabeth W. Hunt.

In order to appreciate the legal questions between these parties it is necessary to state in detail, though they are very prolix, the provisions of the will of the testator so far as the same relate to the questions in dispute. By the second clause or item of such will the testator gave and devised to his wife, Jane C. Hunt, one equal third part of all and singular his real estate wheresoever situated, for and during the period of her natural life. This was made in lieu of her dower in her husband’s estate.

The third clause is as follows: “ From and after the death of my said wife, Jane C. Hunt, I do give and devise to my true and trusty friends, Sterling Gr. Hadley and Walter Quinby, of Waterloo, aforesaid, the said equal one-third part of all and singular my said real estate, wheresoever situated (the use of which is hereinbefore given to my said wife), to be by them nevertheless held in trust for the period and purposes hereinafter expressed, 1 .and be by them possessed and disposed of as hereinafter directed ; and from the time of the death of my said wife they are to take possession thereof, and hold the same until disposed of as hereinafter directed.”

In the fourth item the testator says: “I have determined to confide the care and management of my estate temporarily to trustees, and in pursuance of these designs and in view of the consequences which so frequently result from young persons coming at once into possession of property, I have determined that the said trust shall continue, and that the final division and partition of my estate shall not take place until the times and periods hereinafter mentioned, to wit:: as to that one-third part of my real estate hereinbefore devised to my said wife during her lifetime, not until the death of my said wife, and until the time when my son George T shall attain to the full age of twenty-one-years, provided he shall live to attain that age, and if not, then said division and partition of said one-third part of said real estate-shall take place immediately upon the death of my said wife and son George T., and from the time of the death of my said wife-until the time of the death or arriving at full age of my son George T„ provided he shall attain to that age, said share or portion, aforesaid, of my real estate shall remain undivided with the-rents, issues and profits thereof, not otherwise expended in the-hands of my said trustees, for the uses and purposes herein mentioned.”

The fifth item is as follows: In order to provide against accidental inequalities and diversities of condition which might exist at the expiration of said trust, and to discourage prodigality, I have determined to invest my said trustees with extensive discretionary powers in regard to the division and disposition of my estate, to he exercised by them with a due regard to the circumstances and condition of each child, and the situation of the property ; I do, therefore, hereby nominate and appoint my friends Sterling G. Hadley and Walter Quinby joint and several trustees of all and singular my estate, real and personal, of which I shall be seized or possessed at the time of my death, or be entitled to devise and bequeath: and! do hereby give, devise and bequeath unto the said Sterling G Hadley and Walter Quinby all and singular the said rest, residue and remainder of all and singular my estate, both real and personal, of which I may die seized or possessed, in. trust, nevertheless, to have and to hold, manage and control, and finally dispose of the same, to collect, receive, apply and pay out the rents,, issues and profits, proceeds, interest, increase and income thereof, of every kind and nature, and also of said one-third part of said real estate, hereinbefore devised to my said wife during life, from and after her, said wife’s death, in the manner and for the purposes and during the period herein mentioned and expressed.’

The eighth item of the will is as follows: “I do hereby order, 'will and direct my said trustees to take possession of all and singular my estate, both real and personal, herein devised and bequeathed to them and to hold, use, manage, control and govern-the same in the manner, for the purposes, and during the period herein provided, and all and every person taking any share or portion of my estate shall take the same in the manner, at the times and under the limitations herein contained, and not otherwise.”

The eleventh item of the will reads as follows: “ For the doing, executing and performing all and every act pr acts, thing or things, proper and necessary to the prudent management, control, division and final settlement of my property and estate, custody, care, control, education and maintenance and welfare of my children while minors, unmarried, not inconsistent with the objects and provisions hereof, I do hereby invest and give my said trustees full and ample power and authority.”

The concluding clause of item twelve isas follows: “And I intend and order my said trustees that from the time of my death up to the time of such final division of said residue and remainder, said trustees shall annually use and expend out of my estate all such sums as may, in their opinion and judgment, be necessary and proper for the support, education and maintenance of all my said minor children, and I wish them, one and all, to have at least a good English education.”

Bern fourteen: “I do hereby expressly authorize and direct said trustees to provide a fund out of my estate, commensurate with and ample for the support and education and maintenance of said children, up to the time of such final division of said residue and remainder.”

A portion of the sixteenth item of the will is as follows: “I hereby expressly authorize and empower my said trustees, survivor, successor or successors duly appointed, to sell and convey all and singular my real estate of which I may die seized or possessed, at such time or times, and upon such terms and conditions as they think best and most beneficial to the interests of my estate, except, however, that they shall not sell or convey my homestead farm, so called, where I now reside, situated in the town of Waterloo, between the Seneca outlet and the North Canandaigua road, so called, nor any part of it, except such part as they shall lay out into village lots, if any, as hereinbefore provided, which village lots, if so laid off, they may sell and convey in their discretion.” Thence follow authorizations for the execution of sufficient deeds of conveyance of the lands which they may dispose of. The exception of the homestead farm, contained in- this item of the will, does not cover the lands in controversy in this action.

The portion of the nineteenth clause material to the questions involved is as follows: “ I do hereby expressly authorize and empower my said trustees, from time to time, and at such times as they may think proper, to make such repairs and improvements in and upon any building or farm of which I may die possessed as they deem best, suitable or necessary to keep all or any of said buildings properly insured; to employ such laborers, servants and agents as they deem necessary to aid them in managing, controlling and settling my estate."

In pursuance of the provisions of the will there was set apart bv the trustees for the widow the one equal third part of the testator’s real estate, thus devised by the second paragraph of the will, and she continued to receive the income thereof until her death, which happened November 28, 1889.

Bichard Hunt, who is mentioned in the fourth paragraph of the will, became of age July 4,1859, and shortly thereafter the trustees made a division and partition of the “ rest, residue and remainder of said estate,” concerning which no question arises upon this submission.

The assignment of any interest of William M. Hunt was given to Messrs. Hadley and Qninby and Jane G. Hunt, as trustees, on the 1st day of March, 1879, but the same was collateral only to the payment of a certain indebtedness, and such instrument has no bearing upon any of the legal questions arising between these parties. After the execution of such collateral security, but on the same day, namely, the 1st day of March, 1879, William M. Hunt, who was the son of the testator, executed a general assignment, for the benefit of creditors, to the plaintiff, the particulars of which it is not necessary to mention, except to say, first, that the estate so assigned was sufficient to pay only about fifty-one per cent, of his indebtedness to creditors; and, secondly, that in the inventory executed and filed by the assignee in pursuance of law the interest of William M. Hunt in and to the lands in question was not set down or mentioned, although the assignment, being in the usual form, was broad enough to cover any interest of the assignor in real estate.

After the death of the widow, Jane C. Hunt, November 28, 1889, William M. Hunt did, on the 5th day of December, 1889, execute and deliver to the defendant, Elizabeth W. Hunt, an instrument, in writing, duly acknowledged and recorded, by which, for value received, he sold and assigned any interest in his father’s estate to his wife, the defendant, Elizabeth W. Hunt

The plaintiff, as such assignee for the benefit of creditors, claims the interest of William M. Hunt in the one-third of the real estate in question under the general assignment; while it is contended in behalf of Elizabeth W. Hunt, that during the lifetime of Jane G. Hunt, the assignor of both parties, William M. Hunt had no title to nor interest in this property which he could assign or convey.

The question submitted to us is this: Did William M. Hunt during the lifetime of Jane C. Hunt have a title to or interest in the said one-third of the testator’s real estate which he could convey ? If this question is answered in the affirmative, then judgment should be rendered that the title to the share of said William M. Hunt therein, subject to said collateral assignment to said executors, is in the plaintiff, John E. Richardson, as said assignee ; that said Hadley should convey and deliver possession thereof to him, and for such other relief as to the court shall seem just If said question be answered in the negative, then judgment must be rendered that the title to said share, subject to said collateral assignment to said executors, is in the said Elizabeth W. Hunt, and that Hadley convey and deliver said possession thereof to her, or for such further relief as to the court shall seem just.

The question so submitted is to be determined by the further inquiry, whether or not the trustees under this will took the title to this real estate ? If they did, it could have been done only in pursuance of the provisions of the Revised Statutes relating to uses and trusts. 1 R. S., 728, § 55. By this statute, express trusts may be created for the following purposes :

“ 1. To sell lands for the benefit of creditors.
“ 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon.
“3. To receive the rents and profits of lands, and to apply them to the use of any person during the lifetime of such person, or for any shorter term, subject to the rules prescribed in the first article of this title.
“ 4. To receive the rents and profits of lands, and to accumumulate the same for the purposes and within the limits prescribed in the first article of this title.”

It will be observed, first, that the devise of the real estate to the wife during her life was absolute. The so-called trustees were not directed by the terms of the will to collect the rents and pay them over to her, but the use and income and profits of this portion of the real estate of the testator were given to the widow without the intervention of any person.

The only portion of the so-called trust which was valid and capable of enforcement is contained in that part of the will by which the accumulation of rents and profits, after the death of the widow, was to continue during the minority of George T. Hunt. Had this provision stood alone and had it been made for the benefit of the infant, and had not been coupled with the accumulation of the rents for the benefit of five others, some of whom were of full age, it is possible that, theoretically, at least, a legal trust could be spelled out from the terms of the will. Under §§ 37 and 38, 1 R. S., 726, the proposed accumulation of the rents and profits of the real estate for the benefit of all these persons was void. Vail v. Vail, 4 Paige, 317; Pray v. Hegeman, 92 N. Y., 508; Barbour v. De Forest, 95 id., 13.

George T. Hunt arrived at age April 18, 1873, about six years before the assignment was made by William M. Hunt to the plaintiff. The time, therefore, never arrived when the trustees could enter upon the discharge of any duties under the will relating to the accumulating of rents and profits above mentioned. When Jane 0. Hunt died there remained to be executed no trust whatever under the will, whether lawful or unlawful. At her death, George T. Hunt having become twenty-one years of age long before, and having died, the trustees could, under the will, perform but one act, and that was to partition and convey the property in pursuance of the directions of the will. Those provisions did not give them the title; they did not constitute them legally trustees with a title to the real estate.

But this devise, though invalid as a trust, was valid as a power in trust within the meaning of 1 R S., 729, § 58, in which attempted express trusts made by will for any purpose not enumerated in the statute,in which it is provided that no estate shall vest in the trustees, but the trust, if directing or authorizing the performance of any act which might be lawfully performed under a power, shall be deemed valid as a power in trust. Section 59 provides, that in every case where the trust is valid as a power, the lands to which the trust relates shall remain in or descend to the person otherwise entitled, subject to the execution of the trust as a power.

It appears, therefore, that this trust, in its creation, was not, within the meaning of § 60, valid, because by necessary implication the same would fail of operation by the arrival at full age of George T. Hunt during the lifetime of his mother, or by his death during that time. The most that can be said in favor of it is, that it was a trust contingent upon the happening of an event which was by no means ascertainable and certain. See for general discussion of the questions here involved, the cases of Clift v. Moses, 116 N. Y., 144; 26 N. Y. State Rep., 405 ; Chamberlain v. Taylor, 105 N. Y., 185; 7 N. Y. State Rep., 517 ; Cooke v. Platt, 98 N.Y., 35 ; Robert v. Corning, 89 id., 225, and the cases there cited.

The estate of William M. Hunt was an expectant estate and alienable under 1 R. S., 723, §§ 8 and 9, and id., 725, § 35, which should commence at a future date, namely, upon the death of his mother. At her death it became an estate in possession, and as such was descendible, devisable and alienable. 1 R. S., 725, § 35. This view finds strong corroboration in a portion of the will in the 9th item, not above quoted, which is as follows: “ And I do will, devise and bequeath the same unto such children of mine then living and the issue then living of such of my children as are then dead, if any, each and every such particular and specific portion, parcel and share of my said estate as shall be so separate and allotted, partitioned and awarded to them respectively by said trustees, their survivor, successor or successors duly appointed, and to their heirs and assigns forever.”

It follows, therefore, that the question submitted to us must be answered in favor of the plaintiff. Judgment is directed accordingly, with costs to both parties, and with an allowance for disbursements to the surviving trustee Hadley, payable out of the fund.

¡Dwight, P. J., and Corlett, J., concur.


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    La Fayette Rittenhouse, Resp’t, v. John Creveling, Ex’r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Evidence—Bills and notes.
    Evidence of want of consideration for the note in suit is inadmissible under a mere general denial.
    2. Same—Proof of possession.
    A witness testified that at a time prior to the making of any claim that the note in suit was forged plaintiff showed him a note which he said was the note of his father, but he could not identify the note in suit positively as being the one so shown to him. Thereafter plaintiff testified that he showed the note to the witness and that it was the identical note in suit. Held, that the evidence of the witness was competent to show possession by plaintiff of the note at that time, and was not objectionable as a mere declaration of the plaintiff.
    3. Same—Transactions with deceased person—Code Civ. Pro., § 829.
    In an action on a note brought against the personal representative of the maker, the defense introduced evidence of a conversation between plaintiff and deceased tending to show want of consideration. Plaintiff was allowed to testify, under objection that he was not competent under § 829 of the Code, that the conversation as related by the witness did not take place and to give his version of the conversations at the times referred to. Held, error; that the evidence was inadmissible, and that the objection was sufficiently specific.

      Appeal from, a judgment entered in Livingston county September 15, 1890, on a verdict of a jury at the circuit.

      Charles J. Bissell, for app’lt; F, C. Peck, for resp’t.
   Macomber, J.

As there was no motion for a new trial made either upon the minutes of the court or at special term upon a case and exceptions, no question can be made but that the issues were decided by the jury upon sufficient evidence and that their conclusion upon the facts cannot be disturbed

There are, however, exceptions to the reception and rejection of the evidence and to certain portions of the charge of the court to the jury which are relied upon by counsel for appellant as sufficient to require a reversal of the judgment.

The action is upon a promissory note alleged to have been made by the defendant's intestate, one Alanson Rittenhouse, August 10, 1882, payable two years thereafter to the. plaintiff or bearer, with interest. The answer of the defendant put in issue the execution and delivery of the note to the plaintiff.

The first material objection made to the exclusion of evidence arises upon the offer of the defendant to prove that the note was without consideration. This was objected to upon the ground that it was inadmissible under the pleadings, and the court sustained the objection, to which ruling the defendant excepted. This ruling was, as the pleading stood, clearly correct. The note itself by its language imported a consideration, and a mere general denial was not sufficient to admit proof of evidence defeating the presumption of law arising from a production in evidence of the note itself. Such was the rule held in Eldridge v. Mather, 2 N. Y., 157; also, Dubois v. Hermanee, 56 id., 673; Springer v. Dwyer, 50 id., 19. But this proposition is of less importance than it would be had not the court in fact, upon application by the defendant, permitted an amendment setting up a want of consideration. No evidence of this character, after the amendment was permitted to be made, was excluded. The defendant, therefore, is not in position to allege any prejudice against his rights by reason of the rulings of the learned trial judge in this respect.

Another exception arises upon the evidence of Mr. Vanderlip, to the effect that in the spring of 1888 he bad been shown by the plaintiff a note which purported to be the promissory note in suit, and that the plaintiff said it was the note of his father. This witness was quite indistinct in his recollection in regard to the transaction, and could not identify the note in suit as being positively the one which was shown to him by the plaintiff. This evidence was given out of its order in the case, but no objection was made thereto upon that ground. The plaintiff was subsequently permitted to testify, without objection, that he did show, at about the time mentioned by Mr. Vanderlip, this note to that witness, and that it was the identical note here in suit Counsel for defendant moved to strike out the evidence of Mr. Vanderlip, but the motion was based solely upon the ground that it did not appear from any such evidence that the note in question was produced at that time by the witness. This motion was wholly unavailing because the point which was sought to be established by the evidence was the possession by the plaintiff of the note at that time, and the evidence, such as it was, was for the consideration of the jury. When the evidence itself was offered, the objection made to it was upon the ground that it was a mere declaration of the plaintiff’s and was not made in the presence of the defendant or of any person interested. This objection was unavailing. It was not offered or received as a declaration in any respect; but as a fact, namely, the actual possession of the note, and that too at a time before any imputation of forgery against the plaintiff had been made, and hence was res gestee. In this view of the case the evidence was competent.

Another objection was made to the evidence of the plaintiff touching two interviews which had been related by the witness Jane Davidson, which took place between the plaintiff and his father, the decedent, in the year 1887, in which the latter had told the plaintiff to go away and leave him, that he did not owe him one cent; and that the plaintiff at the time made no assertion that he owned or held any note against his father. This was after the amendment to the answer above referred to. This evidence was objected to,- under § 829 of the Code of Civil Procedure. The objection was overruled, and the defendant excepted.

If this objection can be avoided it can be done only through the authorities of Ham v. Van Orden, 84 N. Y., 271, and Sanford v. Ellithorp, 95 id., 52. The objection made, as was stated in Ham v. Van Orden, supra, was general, that the witness was not competent under § 829 of the Code. But he was not rendered incompetent for all purposes in this action, because the defendant himself had been sworn as a witness prior to this time in the trial and had given evidence from which it could be argued to the jury that his intestate did not execute the note in suit. This witness, therefore, was competent for some purposes.

The court in Sanford v. Ellithorp, supra, says: “ If the objection had simply been that the witness was not competent under the section referred to (§ 829), it would have been unavailing because too general. Ham v. Van Orden, 84 N. Y., 271.”

The plaintiff appears, therefore, to have been a competent witness on account of the evidence given by the defendant. Being a competent witness for some purposes, it was incumbent, in order to exclude him from giving his version of the interview with his father, as related by the witness Jane Davidson, specially to point out the objection, unless the specific objection appeared from the nature of the question propounded. The witness’ attention was called directly to a conversation testified to by Jane Davidson, and he was asked specifically if he had said to his father and his father had said to him what the witness Davidson had testified to. The objection so taken, under § 829, though general, was under the circumstances sufficiently specific. Had objection been made to the competency of the witness before any question was put, a different question would arise. But when he was asked in detail if the conversation related by Davidson had taken place, and he was allowed not only to deny it but give his version of the conversation at those times of a quite different character, the provisions of § 829 were violated. Pinney v. Orth, 88 N. Y., 447, Ward v. Plato, 23 Hun, 402; McKenna v. Bolger, 37 id., 526; S. C., 49 id., 259; 17 N. Y. State Rep., 102.

This error in the admission of testimony necessarily leads to a reversal of the judgment.

There are other questions arising upon the charge of the learned trial judge which would be of interest, particularly those portions in relation to the burden of proof. But it is hardly necessary for us, under the circumstances, to express any opinion m regard thereto, further than to say, that at all times during the trial the burden was upon the plaintiff to establish affirmatively by a preponderance of the evidence that the defendant’s testator made and delivered to the plaintiff the note in question.

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

Dwight, P. J., and Corlett, J., concur.


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    Charles D. Thompson, Resp’t, v. Alexander McLean et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Sale—Right of vendoe to possession until payment.
    Where the sale of goods is an indivisible one, prepayment of the whole is a condition precedent to the right of the vendee to take possession of any of them.
    2. Same—Replevin.
    Plaintiff sold to defendants a quantity of apples, and received a payment on account. He sent the goods to a warehouse, when defendants accepted a part and refused to take the rest. Plaintiff then undertook to remove them from the warehouse, when defendants by force took possession of such portions as they desired. Held, that plaintiff could maintain replevin to recover possession of the whole and insist on payment in full, and that he was not obliged to restore the payment made before repossessing himself of the property.
    Appeal from a judgment entered in Wyoming county, on the verdict of a jury at the circuit held in September, 1889, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court

      John B. Fanning, for app’lts; M. E. & E. M. Bartlett, for resp’t.
   Macomber, J.

This action is replevin, and it was brought to recover the possession of 294 barrels of apples alleged to have been wrongfully taken by the defendants from the possession of the plaintiff.

Durinojdkp months of February and March, 1889, the defendant Alexa!|$|#.t-E. McLean and one William W. Durfee were engaged in ti^ltig apples for the defendant Slade. After various interviews with the plaintiff; Durfee finally, on the 27th day of February of that year, agreed to purchase for the defendant Slade the apples owned by .the plaintiff at the price of $1.25 a barrel. The plaintiff’s evidence shows that his entire crop was the subject of the sale and that there was one uniform price for the whole. The defendants, however, gave evidence from which it was argued to the jury that there had been purchased only a given amount at $1.25. The plaintiff took the apples to a warehouse on the line of the Erie railway with the expectation of delivering, the same to the defendants under the agreement. This was in the month of March, 1889. There was paid to the plaintiff, on account, the sum of $300, by check dated March 15, 1889. The defendants’ agent, Durfee, packed the apples and marked the most of the barrels as No. 1, but a few as No. 2. He subsequently, namely on the 16th day of March, claimed that he had not bought the apples marked No. 2.

From the plaintiff’s evidence it is clear that the sale of the apples was indivisible, and that prepayment of the whole was a condition precedent to the right of the defendants to take possession of any of them. Osborn v. Gantz, 60 N. Y., 541; Russell v Nicoll, 3 Wend., 112. The claim made by the defendants, that some of the apples which were taken to the warehouse were not included m the purchase, was one of fact for the jury, and it was a fact of importance, because, whether this portion should go to the defendants or not was to determine the rights of the parties in this controversy. For there was no objection made by the defendants to paying $1.25 a barrel for all that had been marked No. 1 by the agent Durfee. Yet it hardly admits of doubt, that if the plaintiff’s understanding of the bargain was that the entire quantity'of apples should go under the purchase thus marked by the agent, not only those marked No. 1 must be received and paid for, but the others also, before the defendants could lawfully possess themselves of any of the property. There was no actual delivery by the plaintiff of any portion of the apples. They were sent to the warehouse and when the defendants refused to pay for the entire lot the plaintiff undertook to take possession of the same and to remove them from the warehouse; whereupon the defendants interfered and by force took possession of such portions as they desired, whereupon this action was brought to recover, as it now appears, the possession of the entire lot of 294 barrels.

A re-argument of this case was ordered at the last October term, and a direction made that the case be resettled in certain particulars, which has been fully complied with. As the record stood at the first hearing in this court it was uncertain whether the plaintiff’s recovery was for the portion of apples which the defendants did not desire to take, or whether it was for the entire lot The case then did not disclose in whose hands the property was at the time of the trial. The verdict of the jury was, that the plaintiff was the owner of and entitled to the property described in the complaint, and assesseattlB full value at'fifty-five dollars. The judgment followed tM^erdict The sum of fifty-five dollars represented the price of the barrels of apples which the defendants refused to receive ; and hence it was very properly assumed by the court, on account of the very defective record before it, that there had been a recovery of the possession of the amount of apples only which had not actually been paid for. Upon the motion for re-argument, it was claimed by the counsel for the appellants, that the assumption as made by the court was erroneous, and we accordingly, for fear possibly some injustice had been done the parties, granted the motion and directed a resettlement of the case. By the amendments now appearing, it is shown by the return of the sheriff'that the entire lot of apples, 294 barrels, was taken by him under the notice in replevin and turned over to the plaintiff.

But this circumstance can make no difference in the application of the legal principle involved. If the sale was a unit and indivisible, as above shown, it follows that the plaintiff was not obliged to take the hazards of the market, and in order to indemnify himself to take possession only of so much of the property as he thought at the time might make him good for the unpaid purchase price, but he was entitled in strict law to possess himself of the whole and to insist upon a compliance by the defendants of the bargain which they had made with him, namely, a payment in full for the whole quantity before they should take into their possession and control any portion of the property. Under § 1726, et seg., of the Code of Civil Procedure it was not necessary for the jury to determine the value of the property thus taken in replevin. It appears, however, that shortly after the purchase made by the defendants there was a serious fall in the price of apples, and that shortly after the time of the consummation of the purchase apples became a drug in the market, and would sell for only a small part of the current price of a few days previous.

There is in this case no question pertaining to the laws of rescission of contracts.,, It is argued by the appellants’ counsel that it was the duty of the plaintiff to restore the payment made upon the purchase before repossessing himself of the property. But, as is shown above, there was no occasion or room for any rescission of the contract. If the plaintiff’s version of the transaction is true, as the jury has found, the, contract to pay in full was to be performed prior to or simultaneously with his taking possession of the property. It was not an executed agreement. On the contrary, it was an executory contract, inoperative unless the defendants conformed to the very terms thereof in respect to payment.

It follows, therefore, that the decision heretofore made in this case, Thompson v. McLean, 32 N. Y. State Rep., 736; S. C., 10 N. Y. Supp., 411, must be adhered to, and the judgment entered upon the verdict affirmed.

Dwight, P. J., and Corlett, J., concur.