author: Ingalls, P. J.:

text:
    ROBERT L. CASE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Affidavit — qualifying “words “knowledge and belief” at end of — how applied — Insurance department —what statements must be filed therein —how construed'.

    In compliance with the requirements of section 12, chap. 463 of 1853, the plaintiff in error, as president, and one Allen, as secretary, of a life insurance company, prepared a statement purporting to exhibit, among other things, the assets of the company at the close of the year 1S75, and caused the same to be filed with the superintendent of the insurance department. The. statement was verified by the following affidavit:
    “ State of New York, City of New York, ss :

    “ Robert L. Case, president, and Isaac H. Allen, secretary, of the Security Life Insurance and Annuity Company, being duly sworn, depose and say, and each for himself says, that they are the above described officers of the said company, and that on the thirty-first day of December last all the above described assets were the absolute property of the said company, free and-clear from any liens or claims thereon, exceptas above stated; and that the foregoing statement, with the schedules and explanations hereunto annexed and by them subscribed, are a full and correct exhibit of all the liabilities,- and of the. income and disbursements, and of the general conditions and affairs; of the said company on the said thirty-first day of December last, and for the. year ending on that day, according to the best of their information, knowledge and belief, respectively.
    “ROBERT L. CASE,
    “I. H. ALLEN, Secretary.

    “ Subscribed and sworn to before me, this > 19f¡h day of February, A. D., 1876. f

    [l. s.] “Moses B. Maclay, Notary Public for the City of New York.”
    Upon the trial of the plaintiff in error for perjury in swearing to this affidavit, held, that the words, “ according to the best of their information, knowledge and belief, respectively,” only served to qualify so much of the said affidavit as was subsequent to the semi-colon, and that as to those statements which preceded the semi-colon the affidavit was absolute and unqualified.
    Since the passag-e of chapter 366 of 1859 creating the insurance department, the statement required by chapter 463 of 1853 to be filed in the office of the comptroller of the State must be filed with the superintendent of the insurance department.
    Such statement is required to show, among other things, the “ amount of assets, and manner in which they are invested, specifying what amount in real estate, on bond and mortgage, stocks, loans on stocks, premium notes, credits, or other securities.” The statement filed contained the following-:
    “IV. ASSETS.
    “AS PER LEDGER ACCOUNTS.
    “1. (ci) Cost value of real estate exclusive of all incumbrances, as per schedule A......................................................... $460,875 00
    “6. (c) Cost value of bonds and stocks owned absolutely, as per schedule E............................................................. 592,197 75
    “ 7. Cash in company’s office............................................... 32,818 11
    “8. Cash deposited in banks............................................... 172,890 57.”

      Held, that the plaintiff in error must be assumed to have taken upon himself the responsibility of stating, under oath, that he personally knew that these assets of the company existed as therein stated, and not simply that the ledger, of the company indicated their existence.
    Writ of error to the Court of Oyer and Terminer, to review the conviction of the plaintiff in error of perjury.

      A. S. Sullivan and O. II. Winfield, for the plaintiff in error.

      B. K. Phelps, district attorney, for the defendant in error.
   Ingalls, P. J.:

The plaintiff in error was tried upon an indictment for perjury and convicted at a Court of Oyer and Terminer, held in and for the city and county of New York, on the 12th day of November, 1877. . He was president, of a corporation known as “ The Security Life Insurance and Annuity Company,” duly incorporated and transacting business in the city of New York. The plaintiff in error, in conjunction with Isaac H. Allen, who was the secretary of said company, prepared a statement purporting to exhibit, among other things, the assets of such company at the close of the year 1875, and the manner.they were invested,- and caused the same to be filed with the superintendent of the insurance department at the city of Albany, in compliance with the requirement of Yol. 2 R. S. p. 770, § 74 (5th ed). Such statement purported to have been sworn to by such president and secretary before Moses B. McClay, a notary public of the city and county of New York. The statement was conveyed to and deposited in the office of the superintendent of the insurance department by Robert L. Case, Jr., the son of the plaintiff in error, and the actuary of such company. Such statement showed a surplus in favor of the company of nearly three millions of dollars. In the month of November, 1876, upon examination, the company was found to be insolvent to the extent of -two millions of dollars. The evidence shows that when the statement was filed in the insurance department the company was hopelessly insolvent, and the statement untrue in regard to there being any surplus in fiivor of such company. The affidavit, which accompanied and purported to verity such statement, is as follows:

ss. “STATE OF NEW YORK, City ojf New York,
“Robert L. Case, president, and Isaac H. Allen, secretary, of the Security Life Insurance and Annuity Company, being duly sworn, depose and say, and each for himself says, that they are the above described officers of the said company, and that on the 81st day of December last all the above described assets were the absolute property of the said company, free and clear from any liens or claims thereon, except as above stated; and that the foregoing statement, with the schedules and explanations hereunto annexed and by them subscribed, are a full and correct exhibit of all the liabilities and. of the income and disbursements, and of the general condition- and affairs of the said company on the said 81st day of.. December last, and- for the year ending on. that day, according to the best of their information, knowledge and. belief, respectively.
“BOBEBT L. CASE,
“ I. H. ALLEN, Secretary.
“ Sworn and subscribed before me, this ) 1.9th day of Eeb., A. D., 1876, j
MOSES B. McCLAY,
Notary, etc.”

It is insisted, on behalf, of the plaintiff in error, that the indictment is insufficient to sustain a conviction upon the facts of this case, because it does not charge the items upon which the perjury is assigned to be false to have been within the information, knowledge, and belief of the defendant, and it is insisted that the whole affidavit is qualified by those words at its close. The soundness of this proposition depends upon the construction which should be given- to such affidavit. Whether such qualifying words apply to the whole affidavit, or to the latter portion thereof, the punctuation indicates that the statements are made Avithout qualification down to and including the Avoids “ except as above stated,” at which point is inserted a semi-colon. Webster defines its office as folloAvs : “It is used to distinguish the conjunct members-of a sentence.” While punctuation is an important clement in the interpretation of written instruments, (Squires’ Case, 12 Abb., 38.) yet it is not necessarily controlling, and should be rejected Avhen other considerations Avhich are pai-amount show that the intention of the parties to such instrument, is in conflict Avith the meaning Avhich would be conveyed by such punctuation. An examination of the affidavit indicates that those subjects which-could be regarded as likely to be Avithin the personal knowledge of the affiant precede the semi-colon, viz: “That he avus an officer of the company ; that on the 31st day of December, 1875, the assets were the absolute property of the company, free and clear from any liens or claims thereon, except as above stated. It-, cannot reasonably be inferred that these statements were intended to be made upon information, knowledge and belief. They were facts. presumably within his personal knowledge, and therefore to be stated.positively. It .would seem absurd to hold that he intended to state the fact that he was an officer upon information, knowledge and belief; and it seems an unreasonable inference that the president of such a company intended thus to qualify his statement that the assets of the company were its absolute property, free from liens and claims thereon, except as stated. The last expression, “ except as stated,” seems to support this view,' as it conveys the idea that the statement was made after examination, -and with deliberation and assurance. The subjects which are stated after the semi-colon differ widely from those which precede it. In this particular they are such as would be derived from an examination of the books, statements and accounts kept by employes, such, for instance, as the liabilities of the company, income and disbursements, general condition of the affaire of such company — these imply detail, information based upon • statistics gathered in the progress of the business, and depending for their accuracy upon the fidelity of such employes. In regard to such matters, we might expect a qualified statement from the president of the company. We, therefore, conclude that the intention, fairly dcducible from the entire affidavit and the subject to which it relates, harmonizes with the punctuation, and that the indictment properly charges the statements, upon which perjury is assigned to have been made,, without qualification.

The statement was properly filed with the superintendent of the insurance department. The statute of 1859 (chapter 366), which creates such department, is very comprehensive in its terms. Section 3 provides: “ The superintendent of the insurance department shall possess all the powers, perform all the duties, and be subjected to all the obligations and penalties now conferred by law upon the comptroller of this State, or to which the comptroller is subject, in relation to insurance companies, and the formation thereof under the laws relating thereto, so that every power and duty thereby conferred on the comptroller shall, from and after the appointment of such superintendent, be transferred to and conferred upon the said superintendent.” Section 5 is as,, follows: “All books, papers, and documents, securities, stocks, bonds and mortgages, arid all other papers whatever in the comp-' troller’s office, and in the office of the secretary of State, relating to the business of insurance, shall, on demand, be delivered arid transferred to the superintendent of the insurance department, and be and remain in his charge and custody.” We cannot doubt but that it was the intention of the legislature that all papers relating to the business of the insurance department should be filed in that office; and we think such intention is sufficiently declared to .accomplish such result. • The statement in question was by the direction of the plaintiff in error there filed, -which indicates his understanding of the law in that respect, and we do not think he was in error.

It is further insisted by the plaintiff in error that the indictment is fatally defective in omitting to state name, or time and place, .and in not charging that the oath ivas administered in due form of law. We are of opinion that this objection is aimed at the form of the indictment, rather than the substance thereof; and not having been taken by demurrer or motion previous to judgment, all such defects are cured by the statute of jeofails. The Eevised Statutes (volume 2, page 728), provides: “ Section 52. No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceeding thereon be affected” [omitting as inapplicable down to] “ 4. By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” We are unable to perceive wherein the plaintiff in error has been or could be prejudiced by such omissions in the indictment. We may fairly infer that had such defects been regarded of consequence, the remedy by motion or demurrer would have been resorted to. It is too late to assail the indictment upon such ground. (Mason v. The People, 26 N. Y., 200; Fleming v. The People, 27 id., 329; The People v. Powers, 6 id., 50; Tuttle v. The People, 36 id., 431; Tomlinson v. The People, 5 Parker, 313; People v. Rynders, 12 Wend., 425.) The decisions show clearly the disposition of the courts to give full force and effect to such statute. We apprehend there are few criminal trials where there may not be discovered, after the trial, some error ■ or omission touching the form of the proceedings, but which does not prejudice the case of the prisoner. This statute was intended to cure all such defects, and thereby avoid the-necessity of granting new trials in every case where a harmless error or omission has intervened.

The statute of 1853 (chapter 463), which provides for the incorporation of life and health insurance companies, contains the following: “ Section 12. It shall be the duty of the president, or vice-president and secretary or actuary, or a majority of the trustees of each company organized under the laws of this State, annually, on the first day of January, or within sixty days thereafter, to prepare under oath, and deposit in the office of the comptroller of the State, a statement showing” [enumerating eleven subjects, which ive omit as inapplicable to this case]. “ 12. amount of assets, and manner in which they are invested, specifying what amount in real estate, on bond and mortgage, stocks, loans on stocks, premium notes, credits, or other securities.” We have endeavored to show that, as the result of legislation since 1853, the statement is required to be filed with the superintendent of the insurance department instead of the comptroller. Pursuant to the requirement of the statute, the plaintiff in error, in conjunction with the secretary of the company, made and filed a statement with the superintendent of the insurance department, which purported to have been sworn to by them on the 19th day of February, 1876, before Mases B. Maclay, a notary public of the city and county of Now York. Such statement was designed to exhibit the financial condition of such company at the close of the fiscal year, December 31, 1875. Such statement contains the following:

“ ASSETS AS PER LEDGER ACCOUNTS.
“ 1. (a). Cost value of real estate, exclusive of all incumbrances, as per schedule A, - - - $460,875 00
“ 6. (c) Cost value of bonds and stocks owned absolutely, as per schedule E, ... 592,197 75
“7. Cash in company’s office,.....32,818 11
“8. Cash deposited in banks, ----- 172,890 57.”

The indictment alleges the falsity of the four items above mentioned, and assigns peijury in relation thereto, and incorporates in such indictment the said items substantially as they appear in the statement filed in the insurance department. In our judgment, the only reasonable inference which can be drawn from the facts is, that the plaintiff in error assumed the responsibility of presenting under oath the said statement in regard to such assets, as he personally knew them to exist, and not simply as the ledger of the company indicated. It is cpiite obvious that the law did not require a statement under oath that the ledger exhibited a correct and truthful statement of the assets of the company, but rather what the real fact was as to what property the company owned, and how the same was invested. Any other construction would enable the officers of such a company to evade the substantial requirement of the statute by resting such statement upon what the ledger revealed, which might, possibly be manipulated for the purpose of exhibiting a particular and desired result. The purpose of filing such statement is to inform all parties interested of the financial condition of such company, and hence the necessity that it be accurate and truthful, else the object intended will be defeated, and parties interested mislead rather than instructed. We therefore conclude that the indictment properly and sufficiently alleged the offenses in this respect. (Harris v. The People, 64 N. Y., 148; Wood v. People, 59 id., 117; Tully v. The People, 67 id., 15.)

Upon the question whether the oath was actually administered by the notary public, McClay, there is a sharp conflict in the evidence. McClay testified upon his direct examination that he administered such oath, and that he recognized in court, both Case and Allen. Doubtless the force and reliability of his evidence was seriously shaken by the cross-examination. Yet he adhered to the statement that he actually administered the oath, although not able, with any degree of certainty, to fix the time or place from memory. His evidence was supported by the official certificate which was produced, and upon which he mainly relied. The law lends support to this evidence, by the presumption which it creates that a public officer does his duty. We perceive no motive which the notary could possibly have had to omit the oath, and to make a false certificate. Again, making a false certificate would. subject him to punishment, and we can hardly suppose that he would have hazarded that result without some adequate motive, even if wicked enough to be guilty of shell an act under any circumstances. It was the duty of Case to make the oath, and hence the, presumption is that he did it, which is consistent with the certificate of McClay. It is true, Case denies making such oath, and thereby falsifies the certificate which he caused to be placed on file; and declares that he omitted a duty which the law required of him. We do not lose sight of the consideration that the law raises a general presumption of innocence on the part of the prisoner, but we are endeavoring to weigh the presumptions as they affect this precise question. Other witnesses testified in regard to this question, and doubtless a strong case was made by the defense upon this issue for the consideration of the jury. It was peculiarly the province of the jury to determine this question, in the light of all the facts and circumstances. The witnesses were before them, they had an opportunity to observe their appearance, and the manner in which they gave their evidence, which enables the jury to draw proper inferences, and to attach to their evidence the weight to which it was entitled. The appellate tribunal is necessarily deprived of such opportunity, and hence the practical difficulty which attends the review of a question of fact where the evidence is seriously in conflict. It cannot be contended, with reason, that there is no evidence in support of the assumption on the part of the defendant in error that the oath was administered by McClay to the plaintiff, in error. The determination of the jury upon this question must be regarded conclusive. (Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y, 455; Rounds v. D. L. & W. R. R. Co., 64 id., 129; Morss v. Sherrill, 63 Barb., 21.) In the last case this subject is very fully discussed. ■ (Cothran v. Collins, 29 How., 155.)

Upon the question whether a new trial should be granted upon the ground of newly discovered evidence, we think the view taken by the Oyer and Terminer was clearly correct. The affidavits disclosed no new fact, but suggested additional witnesses in support of the facts proved upon the trial — strictly cumulative evidence, offered without a fair pretense of surprise or want of ability to produce such witnesses at the trial, (Wait’s Practice, vol. 3, page 416, -where this subject is discussed and the decisions are collected.) This case was submitted to the jury under a charge' eminently fair and clear, and the law was enunciated correctly; so much so, that not an exception was taken, nor was there even a request to add to, extract from, or modify the same. ' After a careful examination of this case, we conclude that the plaintiff in error has had a fair and impartial trial. While we are not insensible to the sad consequences which attend this conviction to a person so advanced in years, and who has been respected and honored by the community in which he resided, and in whose favor gentlemen of intelligence and probity testified at the trial in regard to his character, we cannot overlook another consideration, that the very qualities to which such prominence was given at the trial in favor of the accused, had inspired the community ■with a degree of confidence which led to his selection to discharge the trust which he has .so grieviously violated, thereby sacrificing the rights of those who intrusted their property to his keeping. His own evidence upon the trial showed that he had been utterly inattentive to the business and concerns of the company, and his ignorance of its affairs was urged in support of his innocence. It is to be hoped that in. the future those who assume the responsibilities of such positions will recognize the duty which they owe to those whose property is intrusted to their care, and execute such trusts with prudence, honesty and fidelity. This cause was carefully considered by the Oyer and Terminer, on a motion in arrest of judgment and for a new trial, as appears by the able opinion of Judge Dávis, in which he very thoroughly discusses the questions which we have also considered. We conclude that the conviction must be affirmed.

Donohue and Lawrence, JJ., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Donohue, J.:

license: Public Domain

text:
    THOMAS S. LAMBERT, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Perjury — oath taken before officer defacto, binding.

    Upon the trial of an indictment for perjury in falsely swearing to an affidavit, required by law to be made, the plaintiff in error insisted that the oath was invalid for the reason that the notary nublic before whom it was taken was a non-resident of the State.

      Meld, that even though the notary was a non-resident, yet, as he had been duly appointed and was acting as such, he was an officer defacto, and his acts .as such were valid and binding.

      Meld, further, that the prosecution was not bound to show affirmatively that the notary had actually taken the oath of office.
    Writ of error to review the conviction of the plaintiff in error for forgery.

      James M. Smith, for the plaintiff in error.

      Benjamin _ZT. Phelps, district attorney.
   Donohue, J.:

The defendant was convicted in the Oyer and Terminer for the'. exime of perjury. The offense consisted in swearing to an affidavit required by law, verifying the assets of the company and furnished to the department of insurance. The falsehood alleged was in swearing to the amount of three items. Loans secured by pledge of stocks, etc., or other marketable securities, $26,518.03; cash, $80, 475.18, gross premiums due and unreported on policies in force December 13, 1876, $66,576.86.

The defendant seeks to review certain errors alleged in the record. The main allegation of errors in this case are common with, and have been fully considered on, the writ of error in Case v. The People decided at this term (ante, p. 503), and it is only necessary, as to them, to announce the same result as arrived at.

On the facts the two cases, of course, differ, and there are also» some other questions raised in this case to be passed on. On the merits a full discussion of the evidence here would be of no use,, either in stating the conclusions arrived at or to the defendant. It is only necessary to say that a full examination of that evidence satisfies us that the statements alleged to be false are clearly so, and that the defendant must have known it when the affidavit was made. It is very difficult to prove a negative, but in this case we think the evidence given was abundant to justify the jury in the conclusion at which they arrived; the sworn account stated as due for premiums, was an effort to put in as assets premiums on policies not really in existence; the cash on hand, with the exception of a small part, was wholly absent, and the secured indebtedness was simply the making of an item not really existing to swell the supposed assets. It is clear that neither of these alleged assets really had to any amount a real existence, and the statement as to them was an untruth.

The main additional point raised in this case is, that the notary before whom the oath was taken, the person. selected by the plaintiff in error to take the oath before, was a non-resident of this State, and the oath therefore invalid. The appointment of that party is clearly proven, but the plaintiff in error who selected him claims that he could not administer an oath or perform an official act Avhich Avould be valid.

The proposition is a startling one, and, if correct, would leave all persons Avho are compelled to rely on the services of officials in a position that Ave do not think the law intended to put them. In the view of the plaintiff in error no protest of a note, no acknowledgment of a deed, mortgage or other paper, or other of ■the numerous acts of such notary, would be valid, if the party who performed the act was a non-resident. Where residence is a matter often of intent, where a person is temporarily stopping out of the State, after the death of the notary, as here, it might bo impossible, even in a case of merely temporary residence for the summer, to show the real residence of such notary. The statement .of such a monstrous wrong, in results to the community, would almost of itself seem to answer the proposition.

But, both on principle and authority, it seems equally clear to us such is not the laAv. The law provides for the appointment of notaries and their qualification, and Avho shall appoint and confirm, and in doing so, necessarily provides who shall pass on the qualifications. The governor is to appoint, and to him the qualifications are presented to be passed upon, and the confirming poAver is supposed to see that the person they confirm has that qualification; and it would seem, on principle, that to that appointing power only the want of qualification here urged can be referred, and on a direct proceeding for the removal of the unqualified person. To allow the objection, would put in the power of any person intending such a wrong, as here committed, to evade responsibility; and the authorities show that the law is well set-tied that the acts of such de facto officer are good. (Read v. The City of Buffalo, 3 Keyes, 447; Parker v. Baker, 8 Paige, 428; Weeks v. Ellis, 2 Barb., 320; Greenleaf v. Low, 4 Den., 170; Wilcox, v. Smith, 5 Wend., 233; People v. Collins, 7 Johns., 549; People v. Cook, 8 N. Y., 67.) All these cases sustain the authority of the person acting by color of office.

Another point taken is, that there is no proof of the taking of the oath of office by the notary. The prosecution was not bound to show affirmatively that the officer had actually taken the oath of office. (Foot v. Stiles, 57 N. Y., 399; People v. Cook, 8 id., 67; Van Steenberyh v. Kortz, 10 Johns. R., 167.) It would be a gross defect in the law to permit the defendant to select his notary, as here, present the affidavit as a valid one, and then, when the defrauded parties prosecute, allow him to say that there was some defect in the appointment of the man he swore before.

Another objection taken is, that the defendant was not bound in the statement to set out the items. The answer to this is, admitting the fact as claimed, nevertheless, the sum total he was bound to state, and if the prosecution could show the sum total false, the result would be the same. Here it is evident that such sum total dependent on these items was false.

All the objections taken as to the signing of the statement, and each schedule, is answered by the general statement that there was evidence competent to submit to the jury that the defendant verified that statement, and that their verdict on that ground cannot be disturbed; and we agree with the jury that there was abundant evidence on that point.

There are several objections tending to the general one as to Reed’s declarations. The witness under examination was one who had been deputed to make the examination, and needed explanations of the books of the company. He applied to the president of the company, the plaintiff in error,- and the plaintiff in error referred him to Reed, and what Reed stated in explaining the books, or state of the company, was competent. If Reed was mistaken, or the books did not show what was claimed, it was in the power of the plaintiff in error to show it. The evidence, without Reed’s statements on the point complained of, would seem to be abundant to sustain the verdict.

Many other minor objections are taken, but a full examination ' of them leads to the conclusion that no injury arose to the plaintiff in error from any of them. The case was fairly submitted to the jury, and their verdict ought to be sustained.- The main and important question before the jury was, did the plaintiff in error falsely represent and swear to a statement of assets known to be false ? To this, on the evidence, there can be but one answer.

The case presents features of great interest to the public and officers of institutions in which public trust is necessarily placed; and while it is true that no mere mistake or honest error should be punished criminally, it is equally clear that, unless officers of such institutions are held to honest, fair dealing, no safety whatever exists, and the safeguards placed by law are useless. The law violated in the case was one of the most necessary character; and when the violation is clear, as in this case, the court should not be astute to find grounds to allow the plaintiff in error to escape. There being no substantial error, the judgment should be affirmed.

Ingalls, P. J., and Lawrence, J., concurred.

Judgment affirmed.


author: Ingalls, P. J.: Potter, J.:

text:
    LASER SHULMAN and ISAAC J. EDELSTEIN, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Obtaining goods by false pretenses — subsequent statements — what not admissible to prove knowledge.

    ilpon the trial of plaintiffs in error for procuring goods in January, 1876, upon false pretenses, contained in a written statement made by them in regard to their pecuniary condition, the prosecution was allowed for the purpose of showing the prisoners knowledge of the falsity of the written statement, to show statements made by them in the month of March following, in regard to their then responsibility.

      Held,, that this was error; that the evidence was too remote to be admitted for the purpose of showing that they knew that the written statement was false when it was made.

      Writ ok error to the Court of General Sessions in and for the city and county of New York, to review the conviction of the plaintiffs in error of obtaining goods by false pretenses.
    The question involved in the appeal was as to the admissibility of statements made by plaintiffs in error in March, 1876, as to their then pecuniary condition.

      John 0. Mott, for the plaintiff in error.

      Benj. K. Phelps, for the defendant in error.
   Ingalls, P. J.:

The plaintiffs in error were indicted, tried, and convicted upon the charge of having in the month of January, 1876, procured goods of H. B. Claflin & Co., of the value of $372.35 by certain false pretenses contained in a written statement made by them in regard to their pecuniary condition. Upon the trial the people were allowed to show statements made by the prisoners to one Horace Galpin in the middle of March, 1876, in regard to their pecuniary responsibility. This evidence was objected to by the prisoners’ counsel on the grounds — first, that the inquiry was irrelevant and immaterial; second, that it was too remote.

The court overruled the objections, and admitted the evidence for the purpose only of showing the prisoners’ knowledge of the falsity of the statement made to Claflin & Co.

We are convinced that error was committed in admitting this evidence. The transaction was in no manner connected with the offense charged in the indictment, and was too remote to be regarded as bearing upon the question whether the prisoners knew at the time they made the written statement that it was false. If the statement made to Galpin was false and constituted a criminal offense, the prisoners should have been regularly indicted, tried, and, if convicted, punished therefor. The evidence was incompetent to aid in their conviction of an offense with which1 their representations to Galpin had no possible connection, and too remote to bear upon the question of the knowdedge of the prisoners that the statement made to Claflin & Co. was false. (The People v. Justices of the Special Sessions, 10 Hun, 158; Weyman v. People, 4 id., 511; Bielschofsky v. People, 3 id., 40; Coleman v. People, 55 N. Y., 82.)

It cannot be held properly that the evidence was harmless, as it was well calculated to prejudice the case of the prisoners, and in a doubtful case would be quite likely to produce a conviction; The judgment must be reversed, and a new trial ordered.

Potter, J.:

The judgment of conviction in this case should be reversed and a new trial had. It is proper, for the purpose of showing the intent of a person charged with a criminal transaction, to prove similar transactions at or near the date of the transaction upon trial.

Without stopping to discuss whether proof of the representations made to Galpin, about the middle of March, would show what intent existed on the second day of January previous, the-evidence was received not to show intent, but to show knowledge; that is, from proof tending to show that a person has knowledge in the middle of March, a jury may infer the jierson had the same knowledge on the second day of the preceding January. I can not adopt that view. All knowledge that a person has is acquired at some time ; but I am not aware of any rule of evidence or law of nature that a person cannot acquire knowledge between the second of January and the middle of March. If he may, then the knowledge he possesses in the middle of March may have been acquired since the second day of January, and if acquired since the second day of January, it amounts to nothing upon the question at issue.

Judgment reversed, new trial ordered.


text:
    FOLLANSBEE C. WELCH, Respondent, v. GEORGE W. WINTERBURN, Appellant.

      Order of arrest — mpay be granted in an action for injury to real property— Code, of Civil Procedure, § 549, sub. 2.
    The word “property,” as used in sub. 2 of section 549 of the Code of Civil Pro- ' cedure, which authorizes the granting- of orders of arrest in actions ‘ ‘ to recover damages * * for an injury to property, including the wrongful taking, detention, or conversion of personal property,” includes an injury to real as -well as personal property, and an order of arrest may be granted in an action of trespass brought under section 4 of 2 Revised Statutes, 338, to recover damages for a forcible ejectment.
    Where the cause of action set forth in the complaint and the ground of arrest are the same, the controversy should be left to an investigation at a regular trial, and should not be decided upon conflicting affidavits on a motion to vacate the order of arrest.

      Merritt v. Carpenter (3 Keyes, 142) distinguished.
    Appeal from an order denying a motion to vacate an order of arrest.
    This was an action of trespass brought to recover damages for a forcible ejectment and detainer, under section 4 of 2 Revised Statutes, page 338, which provides as follows, viz.:
    “ § 4. If any person be disseized, ejected, or put out of any lands or tenements in a forcible manner, or being put out, be afterward holden and kept out by force, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein treble the damages assessed by the jury or by a justice of the peace, in cases provided by law.”

      O. Bainbridge Smith, for the appellant.

      Daniel G. Thompson, for the respondent.
   Ingalls, P. J.:

The decision of this appeal depends, in our judgment, upon the construction which is to be given to subdivision 2 of section 549 of the Code of Civil Procedure, which provides, so far as it affects this appeal, as follows: “ 2. To recover damages for an injury to property, including the wrongful taking, detention, or conversion of personal property.” It is contended by the appellant that this provision relates only to personal property, and in support of such position relies upon a construction which was given by the Court of Appeals to section 179 of the Code of Procedure, which is reported in Merritt v. Carpenter (3 Keyes, 142), which last mentioned section, so far as it relates to the question we are considering, is as follows: “ Or for injuring or for wrongfully taking, detaining, or converting property.” There is a material difference in the phraseology employed in framing the two sec. tions; and we think that change was intentional to avoid the construction given to section 179 in the case referred to. The words, '■'•and injury to property,” standing alone, would include real as well as personal property. The words immediately following, “ including the wrongful taking, detention, or conversion of personal property,” do not have the effect to restrict the meaning of the words, “an injury to property,” but rather, to my mind,, confirm the impression that the intention was to embrace real property; else why are the words, “ personal property,” introduced in the connection they occupy in that portion of section 549 ? The note of the codifiers upon that section seems to confirm the view we have expressed. We perceive no reason why such provision, of the Code should not embrace real property as well as personal, and conclude that such was the intention of the legislature in framing the statute.

■ Upon the merits, the facts are sufficient to sustain the order of arrest; and as the cause of action and ground of arrest are the same, the controversy should be loft to an investigation at a regular trial, where the rights of the parties can be ascertained and adjusted more satisfactorily than upon affidavits in which the statements are conflicting. (Frost v. McCarger, 14 How., 131; Stuyvesant v. Bowran, 34 id., 51; Nelson v. Blanchfield, 54 Barb., 630). The order should be affirmed, but without costs, as the question is new.

Potter, J., concurred.

Order affirmed, without costs.


author: Barrett, J.: Ingalls, P. J.:

text:
    SARAH LOUISA JAMES, Plaintiff, v. JOSEPH BEASLEY and JAMES D. BIRD, Executors of JOHN H. JAMES, Deceased, and others, Defendants.
    Trust— validity of — when power of alienation not unlawfully suspended.

    Defendants’ testator, by his will, devised his real estate to his wife so long as she ■ remained his widow; upon her death, he directed his trustees to sell the real estate and invest and reinvest the proceeds thereof and the interest thereon, “ except so much thereof as may be necessary for the support of my children until they reach the age of twenty-one years; or of my said daughters until they shall respectively marry.” And upon the youngest of his four daughters, Mary A., Clara, Florence N. and Louisa, attaining the age of twenty-one years, he directed his estate to be divided among his children, the shares of the daughters to be then paid over; the shares of the sons to continue to be held in trust till the youngest son arrived at the age of twenty-one and then to be paid over to them.

      Held, that the trust was valid, and that the power of alienation was not illegally suspended.
    That the trust was not to continue until each and all of the children arrived at the age of twenty-one years, nor until the youngest son and youngest daughter each attained their majority, but only until the majority of the 'youngest child.
    That even if the power of alienation were suspended during the lives of the widow, the youngest of the daughters and the youngest of the sons, still the trust for the life of the widow would be sustained.
    Appeal by the plaintiff from a judgment entered in this action, which was brought to obtain a judicial construction of the will of John H. James, deceased, sustaining the devises in trust contained therein.
    The testator by his will devised to his wife all his real estate, ‘ ‘ to have and to hold the same, and to take and receive the rents, ■ issues and profits thereof so long only as she shall remain my widow;” and directed his trustees to close up his business, convert his personal property into money, and invest it in bonds and mortgages, paying over to his wife the interest thereon so long as she remained his widow; “ hereby enjoining upon her the duty of providing for the plain and comfortable education and support of my children until they shall arrive at the age of twenty-one years; or, as to my daughters, until they shall respectively marry.” Upon the death or remarriage of his wife, he directed his executors to sell the real estate and invest it in the same maimer as the personal, and to “invest all interest received after the death or remarriage of my said wife upon any money invested in pursuance of my will, except so much thereof as may be necessary for the support of my children until they reach the age of twenty-one years, or of my said daughters until they shall respectively marry.”
    “Upon the youngest of my four daughters, Mary A., Clara; Florence N. and Louisa, attaining the age of twenty-one years, I order and direct the said trustees or executors, or their survivor to divide the aggregate of all bonds, mortgages, money and property whatsoever in the hands of my said trustees or executors, or their survivin', into as many equal shares as I shall have children, the issue of a deceased child (if such there shall be) to stand in the parentis stead, and to pay and deliver one of such equal shares to each of my said four daughters.
    “Asto the remaining shares of my estate, I order aud direct that my said executors and trustees, or their survivor, shall continue to hold the same, in all respects, as hereinbefore provided, and subject to the like trusts and provisions for the benefit of my sons, Edwin P. and John H., and other children than already named, if any, until the youngest of them shall reach the age of twenty-one years, and that my said trustees or executors shall then pay over and deliver all the residue of my property and estate in their possession or control to and among my said remaining children, share and share alike, the issue of a deceased child (if such there shall be) to take the parent’s share in every case.”
    John H. James left him surviving his widow, the plaintiff, and his children, the defendants, Mary Angelica James and Clara Bennett (formerly Clara James), of full age, and Louisa James, Edwin P. James and John H. James, infants, under the age of twenty-one years, and Alice Maud James, also an infant, since deceased, his only heirs-at-law and next of kin, whose relative ages are in the order of the names last mentioned.

      Edward 8. Hatch, for the plaintiff.
    No argument received from the attorneys for the respective defendants.
   Barrett, J.:

Under this will, the power of alienation is suspended only during the life of the widow. Upon her death, the conversion of the real estate is expressly directed. The question, therefore, is as to the validity of the trust power going into effect upon the termination of thfe life estate. The provision which is objected to directs a division “upon the youngest of my four daughters, Mary A., Clara, Florence N. and Louisa. ■ attaining the age of twenty-one years.”

The plaintiff claims that absolute ownership was thereby suspended for more than two lives in being at the death of the testator, namely, until the majority of each and all of these children. Fairly and reasonably construed, however, this sentence suspends the division of the corpus of the estate only until the majority of the youngest. The language used is plain and unambiguous; but even if the phrase were less clear, the will would be upheld upon, well-settled rules of construction. An intention which would invalidate the will, will not be imputed to the testator if it can be avoided. (Manice v. Manice, 43 N. Y., 368; DuBois v. Ray, 35 id., 162.) The case is distinguishable from Hawley v. James (16 Wend., 63), in the singling out of one child from a class. The limitation is upon the minority of the youngest, not of the one who may happen-to attain her majority.

The same construction applies with respect to the shares of the-sons and the remaining children. But if, under a strained construction, it should be considered that the absolute ownership of these shares was suspended for more than two lives, namely, the lives of the widow, the youngest of the daughters and the young-' est of the sons, still the residue of the will would not be invalidated, and for the reason that the purposes are separable. It is perfectly well settled that if the purposes of a trust are separable, and some of them must arise within two lives, and there are others which must or may become operative only after the expiration of the two lives, the former may be sustained, but the latter cannot. (Post v. Hover, 33 N. Y., 593; Manice v. Manice, ubi sup., 384, and cases there cited.

The judgment must be affirmed, but without costs either as between the parties or out of the estate;

Ingalls, P. J.:

I am satisfied that the will in question creates no unlawful sus-, pension of the power of alienation, and that the order of the Special Term should be affirmed. The above direction with regard to costs is proper.

Judgment affirmed without costs, either as between parties or out of the estate.


author: Ingalls, P. J.;

text:
    ELIZA M. BAILEY, Respondent, v. LILIAN A. LEE, Impleaded with others, Appellant.

      Amendments to co-mplaint — power of court to allow — Code of Civil Procedure, section 723.
    Appeal from an order of Special Term, allowing an amendment to the complaint and Us pendens in this action.
    The action was brought to foreclose a mortgage given by the defendant Lee. The complaint was served upon Lee June 19, 1877. On the 21st of June an order was made allowing the plaintiff to amend the summons, complaint and Us pendens, by adding the name of Somers S. Parsons as a defendant. On November 27, 1877, a further order was made allowing the plaintiff to amend the complaint by inserting therein appropriate allegations to charge Pai’sons- with the payment of a deficiency, he having purchased the land from Lee and assumed, in the deed, the payment of the mortgage. ' Upon appeal from this order, the appellant claimed that the court had no power to amend the •complaint by inserting an entirely new cause of action, citing Van Syckels v. Perry (3 Robt., 621); Wcodruff v. Dickie (5 id., 619); and Gowdy v. Poullain (2 Hun, 218).
    The court, at General Term, said:
    “The order was fully authorized by section 723 of the Code of Civil Procedure. The allowance of such an amendment involved the exercise of discretion, and we fail to discover wherein it was not justly and judiciously exercised in this case.”

      William A. Beach, for the appellant. Mann & Parsons, for the respondent.
   Opinion by

Ingalls, P. J.;

Potter, J., concurred.

Order affirmed, with costs.


author: Barnard, P. J.:

text:
    In the Matter of the Last Will and Testament of BENJAMIN F. ARNOLD.

      Probate of will — testamentary capacity — opinion of experts — of non-experts— admissibility of.

    On an application to set aside the probate of a will on the ground that the testator was of unsound mind, á physician, who attended him about a week after a stroke of paralysis, having been asked if he understood what was meant in law or medical jurisprudence by the term testamentary capacity, and answered in the affirmative, was asked, against proponent’s objection and exception, “ Did you consider him possessed of that power between the time of his shock and the- time of his death.” Held, that it was error to allow the witness to answer the question.
    Other non-professional witnesses, who had been acquainted and had had conversa- . tions with the testator, were asked to state upon the facts as to which they had testified, and from what they had observed, what opinion they had formed; “ of his soundness or unsoundness of mind after the shock“ as to his being compos mentis' or otherwise;” “was he, in your judgment, of sound mind and memory.” Held, that it was error to allow these questions to be put and answered.
    Appeal from a decree of the Surrogate of Dutchess county, revoking the probate theretofore granted of the will of Benjamin F. Arnold, deceased.

      Thompson & Weeks, for the executors.

      Hackett & Williams, for the legatees, etc., appellants.

      H. A. Nelson and Edward Orummey, for Alexander H. Arnold, respondent.
   Barnard, P. J.:

Benjamin P. Arnold died at Pawling, in Dutchess county, iii January, 1874. Pie was about sixty-eight years of age at the time of his death. He left a widow and seven children; five sons and two daughters. He left what purported to be a will and codicil, whereby the testator’s sons, Alexander and George, were deprived of any interest in the estate of the testator which amounted to about $17,000; and Mary E. Tabor, a daughter, was given only a life estate m one-seventh; and at her death, this share was given to testator’s sons and daughters, excluding Alexander and George. Mrs. Tabor had a young child then living. This will and codicil was proved, without objection, in April, 1874. Alexander H. Arnold appeared to have the probate revoked, within the year after the probate; and, under the direction of the surrogate, the proceedings returned upon this appeal Avere taken to re-probate the Avill under the objections that the testator did not execute the will in the manner required by law; that he had no sufficient capacity to execute a will, and that the same was procured by undue and improper influence.

Upon the trial, evidence was given by proponents that the will was executed on the 8th of December, 1872; that the codicil was executed 26th July, 1873. The evidence given to shoAV that the testator Avas of sound mind was very • strong; and, if credited, entirely unanswerable.

That the testator gave, his own instructions as to the provisions of the will and codicil, and gave clear and satisfactory reasons for the apparent inequality; that his mental faculties Avere substantially unimpaired; that he continued to do business as usual until after the date of the codicil; that he Avas, shortly after the execution of the will, elected a director of the Pawling Bank, and Avas qualified and served; that he executed important papers, with the knowledge and assent of all the family, including the contestant; Upon the other hand, the testimony given by the contestant showed an absolutely clear case of almost entire imbecility, if the evidence was credited; that testator was insane before the 5th of December, 1872, and really did no business, except through his sons, chiefly Alexander, the contestant; that he was subject to delusions before that date; that on the 5th of December, 1872, he was stricken with paralysis, entirety disabling his right side; that for some days he knew nothing; that, while in this state, early on a Sunday morning, and with great secrecy, two witnesses attended at the sick-room, and that the will was executed while he was in this condition; that, physically, he did improve a little subsequently, but never so as to be of sound mind; that he was never free from delusions, and that on the day of the date of the codicil, he did not know an old friend and acquaintance. In passing upon such an evenly-balanced case, and when it would seem that the difference could not be the result of a mistake only, it is manifest that the evidence received should be such as is admissible in law. I think it quite clear that the surrogate erred in the admission of evidence offered by the contestant upon the capacity of testator.

In Hewlett v. Wood (55 N. Y., 634), the rule is established that witnesses, testifying as experts, may “give opinions upon questions of trade, skill or science from facts proven, or the circumstances noted by themselves.”

I think this principle was violated by the admission of the questions put to Dr. Pearce, as follows:

Q. Do you understand what is meant in law or medical jurisprudence by the term, “ testamentary capacity?”
A. I do.
Q. Did you consider him possessed of that power between the lime of his shock and the time of his death? Objected; and objection overruled and excepted by proponents.
A. No, sir; I do not think he was.

The case shows that Dr. Pearce did not see the testator to any extent after about a week from the attack of paralysis.

In reference to the testimony of persons not experts, the same case establishes the rule that they “ may testify to facts and incidents known or observed by them,” which tend to show soundness of mind, or the contrary ; and may testify to the impression produced upon them by what they beheld or heard, and whether the acts and declarations thus testified to seemed to them rational or irrational; “but they may not express an opinion as to the general soundness or unsoundness of mind of the testator, nor as to the competency of the testator to execute a will.” This rule seems to have been violated. This question was presented to the witness Alphus Carl, and substantially to E. D. Burhans.

Q. Erom the conversation that you had with him at that time, aiid from what you saw of him, as stated here in your evidence, and from your observation of him not stated in evidence, what opinion did you form of his soundness or unsoundness of mind, after the shock of paralysis ? Objected to, and objection overruled; exception by proponent.
A. Well, I should think he was not a sound man in his mind, as far as I could see him.
This question was improperly admitted to the witness Stark.
Q. What opinion did you form with reference to his condition at these times, after the paralysis, as to his being compos mentis, or otherwise ?
A. I never thought after the first time I saw him, after the •paralysis, that he was competent to do business.

Also, in the question put to the witness Sarah Wilson.

Q. From what you saw oí him, as well as what you have stated herein as the occurrences that you cannot now remember, was he at any time after the shock, and during your stay there, in your judgment, of sound mind and memory ? Received; exception by proponents.
A. He was not.

The same question, in substance, was put to Charles Ibodg.e, George A. Barker, John Townsend, Emory O. Banks, with the same answer in each case.

The evidence of these opinions was improperly received. Without this improper testimony, I think the will and codicil was improperly rejected.

Upon the question of infirmity of mind before the shock, the witness J. W. Stark agrees with the proponent’s witnesses, that there was no appearance of unsoundness before the attack. The witness Price, who saw testator the day of the shock, or the next day, testified to no act or language indicating unsoundness of mind. The testator knew him and conversed rationally with him. Very many of the acts and declarations testified to by the contestants happened long after the will, and many after both will and codicil. It is not necessary to find that the testator remained sane until his death; he must have been of sound mind when the papers were executed. There is no convincing proof of unsoundness at the date of the papers. Upon the whole case, I think the decrece should be reversed and the question sent to a jury for trial. Costs to appellants out of the estate.

Gilbert and Dykman, JJ., concurred.

Decree of surrogate reversed, and issue sent to jury for trial.


text:
    JUDITH SMITH, Respondent, v. WILLIAM J. GREEN, Impleaded with others, Appellant.

      Action discontinued — should not be revived — notice of motion — when it must be given.

    Plaintiff, by different attorneys, commenced two actions to foreclose tbe sama mortgage. While both actions were pending,- upon plaintiff’s application, and against defendant’s objection, an order was made discontinuing the second action on payment of costs. Subsequently plaintiff, on an ex parte application, procured an order vacating the former one, reviving the second action and discontinuing the first. Thereafter the defendant moved to vacate the second order.

      Held, that the application should be granted. 1. Because it was irregular to grant the order without notice to defendant who had appeared. 2. Because-after an action has been discontinued by a party, it should not be again, restored unless the order was obtained by fraud.
    Appeal from an order denying a motion to vacate an ex parte order, which said order vacated a previous order of discontinuance of one mortgage foreclosure suit and revived such suit, and at the ;same time discontinued another mortgage foreclosure suit, both suits having been brought to foreclose the same mortgage.
    ri he case on appeal showed that the defendant appeared by attorney in the first action, but did not state whether he had ’appeared in the second one.

      Robert Avery, for the appellant.

      William Ferdon, for the respondent.
   Barnard, P. J.:

The plaintiff, by two different attorneys, commenced actions to foreclose the same mortgage. These actions were pending from February, 1877, to January, 1878. I assume the defendant had the same attorney, Andrew Folien, although the fact is not directly stated. On the 5th day of January, 1878, the court at Special Term, and upon the application of plaintiff, who Avas then represented by the same attorney in both actions, and upon argument and opposition by defendant’s attorney, ordered the action last commenced to be discontinued, A\uth costs to defendant’s attorney, if defendant paid his bond in full. The time to answer for the defendant Green, in the action not discontinued, expired on the 18th clay of February, 1878. On the 19th of January, 1878, the plaintiff, upon an ex parte application, obtained an order' from the court vacating the order discontinuing the second action, and reviving that action and discontinuing the action first commenced by her. On the 14th of February, 1878, Robert Av'ery, .Esq., was substituted as attorney for defendant, Smith, in the first action, and within a day or tA\'o after his substitution discovered that the second action had been revived, and the first discontinued ex parte. The court at Special Term denied this motion made upon due notice to vacate this order. I think the court erred in so doing. In the first place, it Avas irregular to obtain the order Avithout notice to the defendant appearing. In the second place, after an action has been discontinued by a party, it should not be again restored unless the order AAras obtained by fraud. (Orphan Asylum v. McCartee, 1 Hopkins’ Chy., 372.)

The order appealed from should, therefore, be reversed with ■costs and disbursements, and the motion to vacate be granted, with •costs.

Dykman, J., concurred.

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

Order reversed, with costs .and disbursements, and motion to vacate granted.


text:
    CHARLES E. WHITEHEAD, Executor, Etc., of ELIZABETH GRANT, Deceased, Respondent, v. JAMES B. SMITH, Impleaded with others, Appellant.

      Code of Civil Procedure, § 829 — what testimony inadmissible under.

    This, action was brought upon a bond and mortgage executed by Caroline Smith and William R. Smith, her husband, upon land belonging to the wife, to one Coolidge, and by him assigned to plaintiff’s testatrix. . Judgment for any ¡deficiency that might arise was asked- against- W. R. Smith. Coolidge was ' dead. Smith was offered as a witness to prove usury in .the loan to Coolidge.

      Held, that his testimony was inadmissible, under section 829 of the Code of Civil Procedure.
    Appeal from a judgment of foreclosure and sale, entered upon the trial of this- action by the court without a jury.

      J. T. Williams, for the appellant.

      Gharles JS. Whitehead, for the respondent.
   Barnard, P. J.:

Caroline Smith, wife of William R. Smith, owned certain premises upon which she, in connection with her husband, executed a mortgage to one William P. Coolidge to secure a loan. •Coolidge assigned the mortgage to Mrs. Grant. Plaintiff is Mrs. Grant’s executor. Coolidge is also dead. William R. Smith signed the bond accompanying the mortgage to Coolidge. Upon the trial of the action for the foreclosure of the mortgage by Mrs. Grant’s executor, William R. Smith is offered as a witness to prove usury in the loan by Coolidge. At the time of the trial the title to the property was 'held by James B. Smith, a son of William R. Smith. The evidence was rejected, and the question is whether, under section 829 of the Code of Civil Procedure, the ruling was erroneous. Under 399 of the Code as it stood before the adoption of the Code of Civil Procedure of 1877, it was well settled that the evidence offered was not admissible. No party to an action nor any person interested in the event thereof could be examined in regard to a personal transaction with a deceased person. The Legislature, by section 829 of the Code, as now in force, has enacted that “no party or person interested in the event can be examined in regard to such personal transaction with a deceased person in his own behalf or interest.” The addition of these words does not permit the evidence. The complaint is against William R. Smith, and asks a judgment for a deficiency against him. When he by his evidence seeks to destroy the bond upon which he is liable, he strictly comes within the words of exclusion in this section; he is a party. He ■is a witness in his own behalf or interest. The transaction to be proven was a personal one between Coolidge and the witness, and ■Coolidge was dead at the time the.testimony was offered.

Judgment affirmed, with costs.

Gilbert, J., concurred; Dykman, J., not setting.

Judgment affirmed, with costs.


text:
    GEORGE WEISSENSTEIN, Respondent, v. HENRY ELIAS and others, Appellants.

      Assignee of chattel — right of io recover the valúe thereof, from one taking it freon-the assignor.

    One B. agreed to build a wagon for the defendants, and before it was completed he sold the wagon to plaintiff by a bill of sale. Subsequently the wagon waa delivered to defendants in plaintiff’s presence, the defendants not, however, paying B. therefor. Meld, that plaintiff was entitled by virtue of the bill of sale to recover the value of the wagon from the defendants.

      McKee v. Judd (12 N. Y., 622) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, 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 to recover the value of a wagon built for and delivered to the defendants' by one Breilmeyer'; the complaint alleges that the claim of the latter had been transferred to the plaintiff. The only transfer was a bill of sale of the wagon executed by Breilmeyer to the plaintiff, while the wagon was being built and before its completion.

      Thos. If. Rodman, Jr., for the appellants.

      Wrn. E. Pearse, for the respondent.
   Barnard, P. J.:

The question presented by this appeal was settled in McKee v. Judd (12 N. Y., 622.) It was held in that case that an assignment of the property in an article transferred a right of action for its conversion while in the hands of the assignor. In this case, one Breilmeyer agreed to furnish all the materials for and to furnish complete a large wagon for the defendants. Before it was finished, Breilmeyer sold the wagon to plaintiff. . After the completion, the wagon-was delivered-to the defendants by Breilmeyer in presence of plaintiff. It was a matter disputed on the trial whether the wagon was completed according to the contract. The jury found that it was. Before the delivery of the wagon to the defendants, they had no title to it. It was plaintiff’s wagon. If the wagon was such as was contracted for, the plaintiff under' the authority of the case above cited had a right of action to recover for its value. The judgment should be affirmed, with costs.

Gilbert, J., concurred ; Dykman, J., not sitting.

Judgment affirmed with costs.


text:
    CHARLES COLLINS, Plaintiff, v. THE PHŒNIX INSURANCE COMPANY OF HARTFORD, Defendant.

      Insurance broker— acceptance of risk by —when binding on company.

    One White, an insurance broker at Flushing, was in the habit of insuring applicants in defendant’s company; he accepting the risk, and, taking the premium which he forwarded to one of defendant’s agents at Brooklyn, who obtained a policy of the date of the acceptance of the risk by White, and sent it to him. November 3d, 1876, plaintiff obtained insurance from White on a bam, and paid the premium; on the same day White sent the ’ risk to defendant’s agent, and on the 6th the latter sent the policy to White, who delivered it to plaintiff. On the 4th the barn was burned.

      Held, that the plaintiff was entitled to recover the loss on the policy. .
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a judgment in. favor of the defendant, entered upon a verdict- directed by the court.

      Downing (& Stanhrough, for the plaintiff.

      John J. Armstrong, for the defendant.
   Barnard, P. J.:

I think the case should have gone to the jury, under proper instructions from the court. Applying the rule that all -questions of fact are to be deemed as found in favor of plaintiff, the facts are as follows: A Mr Coles 'White *was an insurance broker, with an office at Flushing, Queens county. The defendant had an agent, Mr. Swinson, at Brooklyn. White had been in the habit of obtaining insurance in defendant’s company and other companies, for which Swinson was agent. The course of business was for White to accept the risk, take the premiums, and subsequently obtain the policy from Swinson, as of the date when the risk was accepted. On the 3d of November, 1876, plaintiff obtained insurance for one year on his barn and contents from Mr. White, and paid him the premiums.

On the same day White sent the risk to Swinson. On the 6th of November, 1876, the defendant’s company, through Swinson, sent the policy, on which this action is brought, to White and he delivered it to plaintiff. On the 4th of November, 1876, the property was entirely consumed by fire. ■ All parties were ignorant of the fire, until after the policy was delivered to plaintiff. White was either the agent of the defendant, or of Swinson, who was an agent of defendant, with power to issue policies. If of the company, his contract was good, made .on the 3d of November, and evidenced by the policy subsequently given; if he was only the agent of Swinson, then, assuming, that Swinson had the power to either ratify or withhold ratification from the contract, made by White, when it was ratified it operated from the date of the contract. There was the usual course of business between Swim son and White. The policy, in all cases, was of the date of the contract with White.

The judgment should be reversed and a new .trial grantee], costs to abide event.

Gilbert, J., concurred; Dykman, J., not sitting.

Exception sustained ^ and new trial granted, costs to abide event.


text:
    FRANCIS A. REITZ, Plaintiff, v. FRANCIS J. REITZ, Defendant.

      Resulting trust — misapplication of funds by agent — action for — statute of limitation.

    Where an agent uses money of his principal to purchase land in his own name, the light of action by the principal is, in the absence of fraud, barred at the expiration of six or ten years.
    An agency is not such a technical trust as to prevent the application of the statute of limitation.
    • Motion by defendant for a new trial, under section 1001 of the Code of Civil Procedure, after the filing of a report of a referee, deciding the issue in favor of the plaintiff, and directing an accounting.
    It was claimed by the plaintiff, and found by the referee, that in 1854, the mother of plaintiff and defendant entrusted certain moneys to the care and management of the defendant; and that he, with such moneys, purchased certain lots on Myrtle avenue, in the city of New York, and took the title in his own name. That afterwards, and with her consent and that of the plaintiff, he erected buildings thereon and received the rents thereof. The mother died intestate in 1866, leaving plaintiff and defendant her only children.
    The referee found that defendant held the title to the lots for the several use and benefit of himself and the plaintiff, and required him to render an account.'

      Homer A. Nelson, for the appellant.

      L. It. Church, for the respondent.
   Barnard, P. J.:

I think the findings are insufficient to support the relief granted by the referee, for two reasons:

First. There is no finding that the defendant took the deed of the Myrtle avenue property in his own name without the knowledge of his mother, whose moneys were used to pay the consideration. If the .defendant had taken his mother’s money and had paid therewith the consideration of the purchase, upon the agreement that he would take the title in her name, it would be a case where a trust would result to her. In the absence of such a finding, the relief granted must rest upon the principle that whenever one buys land for himself with the money of another person, taking the deed in his own name, a trust results to the owner of the money in the land. I do not suppose such a principle can prevail under our statutes as to resulting trusts.

In the second place, the claim is barred by the statute of limitations. Plaintiíf has no right, except as heir-at-law of his mother, who is deceased. Assuming that- the plaintiíf in 1854 used the moneys in his hands, as agent of his mother, with which to buy the lands in question, taking the deed in his own name, in the absence of fraud, Mrs. Reitz’s cause of action would expire in six or ten years. (Code of Civil Procedure, §§ 382, 388.) Mr. Reitz, died in 1866. An agency is not such a technical trust as to prevent the application of the statute of limitations. (Renwick v. Renwick, 1 Bradford, 234; Murray v. Coster, 20 J. R., 576; Lillie v. Hoyt, 5 Hill, 396; 4 Mass. C. C. R., 152; Angell on Limitations, 186.)

I think a new trial should be granted, order of reference vacated, and the case sent to the Special Term for trial, costs to abide event. . .

Gilbert and Dykman, JJ., concurred.

Motion for new trial granted, with costs to abide event, and order of reference vacated.


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    NATHANIEL J. WYETH, Respondent, v. THOMAS BRANIF and ELIZA GARRETT, Appellants.

      Purchase of decree of foreclosure — usury.
    A decree of foreclosure' and sale having been rendered against plaintiff, he agreed to give defendant BraniPs father ten per cent, for a loan sufficient to , stop the sale. Defendant’s father took' an assignment of the decree to such defendant, who was then in Mexico. Plaintiff paid defendant’s father $235 for the ten per cent, and expenses.

      In an action to set aside the decree and a sale thereunder for usury, held, that the transaction was not a loan to plaintiff, but a purchase by the defendant of the decree.
    That, even if it were a loan, the fact that defendant’s agent took a bonus of ten' per cent, would not affect the defendant.
    That even if defendant made the loan and took the ten per cent., his title to the decree would not be affected thereby.
    Appeal from a judgment setting aside an assignment of a bond and mortgage and of a decree of foreclosure entered thereon, and a sale made thereunder and a deed of a referee made in pursuance thereof, on the ground that they were assigned as collateral security to a usurious loan.
    The assignment was procured, by the father of the defendant Branif, from the owner to the defendant, who was then absent, in consideration of plaintiff paying him ten per cent, under the agreement embraced in the following memorandum:
    “ Bond, $2,000.
    Order, ..... $10
    Referee and printer, - - 380
    $390
    Interest on $2,000 from last payment.
    ' Take title to suit N. J. Wyeth, and give new bond and mortgage for purchase money, $2,000, with bondsman; and pay up-the above expenses, and back interest and insurance.
    Oct. 3, 1876.”
    The money paid belonged to the defendant, and had been left with his father for investment.

      Theodore G. Vermilye, for the appellants.

      George I. Greenfield, for the respondent.
   Barnard, P. J.:

The evidence does not sustain the finding upon which .the judgment was given by the court below.

The plaintiff owned ia house and lot in'.the-county of.Richmond, upon which he had executed a mortgage for '$2,000 to one ©avid Moore. An action had been commenced to foreclose this mortgage, which had passed into a 'decree. To prevent a sale, the plaintiff agreed to give Thomas Branif, the father of defendant Branif, ten per cent, for a loan of the amount necessary to stop the sale. Branif, Sr., paid the amount of the judgment, and took an assignment from the executors of David Moore, and plaintiff paid him, Branif, Sr., $235, being for this ten per cent, and expenses.

The assignment was taken to defendant, who was then absent in Mexico. The plaintiff never saw the defendant in regard to the transaction. Branif, Sr., is dead.

Upon this state of facts, the court found a corrupt usurious agreement upon the part of the defendant, and set aside the assignment, also a sale made under the judgment, also the referee’s deed, and granted a perpetual injunction, restraining defendant Branif from ever enforcing the judgment which he had bought. This transaction was clearly not a loan to plaintiff, but a purchase by defendant Branif of a decree in foreclosure. Assuming the transaction to have been a loan to plaintiff, an agreement with his agent to pay him ten per cent, to procure the loan, does not bring the usurious agreement home to defendant. (Condit v. Baldwin 21 N. Y., 219.)

If the defendant himself had agreed to buy the mortgage and judgment for ten per cent., and to extend the time of payment, his title to the mortgage would have been complete. (Kellogg v. Adams, 39 N. Y., 28.)

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

Gilbert, J., concurred; Dykman, J., not sitting.

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


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      JOSEPH M. WOODS, Appellant, v. ZEBINA K. PANGBORN and JOSEPH A. DEAR, Impleaded, Etc., Respondents.

      Libel — different publications — measure of damages.

    Plaintiff brought an action against Pangborn and Hilton for libel, setting forth three separate publications. While this action was pending, a second one was commenced against Pangborn, Dunning & Dear for libel, setting forth the same three publications and two additional ones. Judgment for $1,000 was recovered in the-first action, and the same was paid. Judgment for $4,000 was recovered in the second action on a general verdict.

      Meld, that as the plaintiff had already been compensated for the three first causes of action, set out in the second complaint, that he could not recover for them again.
    That the second judgment should be set aside, the three first causes of action stricken from the complaint, and a new tidal had.
    Appeal from an order vacating a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    This action was brought to recover damages for five publications of an alleged libel in a newspaper in Jersey City.
    The plaintiff recovered a judgment for $4,000, from which judgment defendants appealed April 13, 1877, and a case was made and settled. On September 19, 1878, the order appealed from was made vacating the judgment in this action, on the ground that the plaintiff had received satisfaction therefor by the payment of another judgment, recovered in an action brought to recover damages for three of the publications set out in the complaint in this action.

      LJrastus Cook, for the appellant.

      Leon Abbott, for the respondent.
   Barnard, P. J.:

'' The plaintiff- brought an action for libel against Pangborn and Hilton and recovered a judgment for $1,000. There were three separate publications of libelous matter set forth in the complaint. Pangborn was one of the editors or publishers of the newspaper in which the libels appeared, and Hilton was averred to have procured the article to be published. The charges substantially in each case was that plaintiff had sold coal by short weight. Whilo that action was pending and undetermined, the plaintiff brought an action for libel against Pangborn, Dunning and Dear, who were the owners and publishers of the newspaper in which the articles appeared. The complaint in this action set forth as causes of action two additional publications to those set forth in the action, Wood against Pangborn and Hilton.

While the action of Woods agáinst Pangborn and Hilton was pending upon appeal, the second action of Woods against Pang-born and Dear was tried, and a verdict rendered in favor of plaintiff for $4,000. While this action was pending, the first judgment was paid by Hilton. The court at Special Term set aside the $4,000 judgment, for the reason that there could be but one satisfaction for one libel. While this principle is true, and while it is also true that all the articles in both actions substantially charged selling coal by short weight, yet a satisfaction for the three first publications did not satisfy the wrong done by the two last, although the charge was the same.

A payment for one libel does not give the right to publish the same libel again ; every publication is a new offense. The order, therefore, so far as it holds the first payment to be a satisfaction in full for the second libel, is erroneous. It does not follow that the judgment should stand. The plaintiff has been compensated for three of the causes of action, which he claims to recover upon in this action. It is not just that he should be paid again for those. The jury have not assessed the damages separately, but have rendered a general verdict on all the causes of action. This judgment should be set aside, and a new trial granted.

The plaintiff should withdraw the three causes of action which were common to both actions.

Costs of Circuit and upon appeal to abide event. Pleadings, except as to the three withdrawn charges, to stand. Verdict and judgment to be held for naught. No costs on this appeal. The order appealed from should be modified accordingly.

Dykman, J., concurred.

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

Order modified in accordance with opinion of Barnard, P. J.


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    MARCUS C. COOK and others, Respondents, v. H. HORWITZ and others, Appellants.

      Arrest in action of replevin — form of widertalting — when void.

    The defendant Horwitz having been arrested in an action brought to recover possession of personal property, an undertaking was given, conditioned that he should be at all times answerable to process, “ and for the payment to the plaintiff of such sum as may, for any cause, be recovered against the defendant.” Upon plaintiff's objection that the undertaking was not such as was required by section 211 of the Code, a new undertaking was given, conditioned for a return of the property as required by the Code. Plaintiff, having recovered a judgment, brought this action against the sureties to the first undertaking. Held, that, as it was not in the form required by the statutes, it was void, and could not be enforced.

      Sernble, that the second undertaking was valid; and that, as it recited that Horwitz had been arrested, the sureties were estopped from denying that he was under arrest and that the bond was given to release him therefrom.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. This action was brought against the defendant Horwitz to recover the possession of certain personal property, and a requisition was issued to the sheriff to take the same; and, upon his return that the property could not be found by him, an order of arrest was granted. The sheriff arrested Horwitz, and took from him an undertaking, with sureties in the sum of $1,400, conditioned “that H. Horwitztshall, at all times, render himself amenable to the process of said court during the pendancy of this action, and to such as may be issued to enforce the judgment therein, and for the payment to.the plaintiffs of such sum as may from any cause be recovered against the defendant.” The attorney for the plaintiff declined to accept this undertaking as sufficient, because it was not in compliance with the statute (Code, § 211), and required the sheriff to procure from Horwitz a proper undertaking. The sheriff required from Horwitz a proper undertaking; and, in order to relieve himself from threatened re-arrest, Horwitz furnished to the sheriff an undertaking, in conformity with the requirement of the order of arrest and of the statute. A recovery was had by the plaintiffs in the replevin suit, and a judgWent was entered therein. The present action was thereafter brought upon both these undertakings against all the parties who executed both. A demurrer to the complaint was interposed, which was overruled at Special Term; but on appeal sustained by the General Term, the opinion of the court thereon being reported' in 10 Hun, p. 586. The plaintiffs then discontinued the action as against the defendant Japha, and served an amended complaint, setting out the first undertaking as cause of action. Upon this amended complaint and the answér, the action was tried before Justice Pratt without a jury,‘. and a judgment entered in favor of the plaintiffs.

      John Berry, for the appellants.

      Anthony Barrett and Charles J. Patterson, for the respondents.
   Barnard, P. J.:

The defendant Horwitz was arrested- by the sheriff of Kings county, wider an order of arrest granted in an action to recover possession of certain personal property. .The bail required was .an undertaking, to the effect that the sureties were bound for the delivery to plaintiff of the property claimed in the action, if such delivery was adjudged; and for the payment to the plaintiff of such sum as might be recovered- in the action against the defendant Horwitz. (Section 187 — 211 Old Code.)

The sheriff took a bond from the defendants, that Iiorwitz should be at all times answerable to process under section 187 of the Code then existing, “ and for the payment to the plaintiff of such sum as may, for any cause, be recovered in the action.”

The bond did not make the sureties bound for a return of the property by Horwitz, but did fdr amenability to process by him.

The plaintiff in the action objected to the bond, and the defendant Horwitz furnished another,,and a correct undertaking from two sureties, according to section 211 above cited. After this second bond, and because the sureties were different, the plaintiff accepted from the sheriff the first undertaking as part of the security given. There was no agreement, directly or indirectly, between the sureties or the defendant Horwitz with the plaintiff'. The agreement with the sheriff, by which Horwitz was discharged from arrest upon the first undertaking, was void. (Winter v. Kinney, 1 N. Y. Rep., 365.)

The discharge from arrest Avas made upon condition other than those prescribed by statute, and the undertaking, taken as indemnity, avus void.

The second undertaking was good. The release of defendant from arrest, if made by the sheriff, was merely, in law, a voluntary escape, and he might be re-taken. The second undertaking recites that the action is for claim and delivery of personal property; and that the defendant had been arrested under subdivision 3 of section 179 of the Code, and the sureties were estopped from denying an arrest to release the defendant, from which the undertaking was given. (Decker v. Judson, 16 N. Y., 439.)

The judgment should be reversed and a neAv trial granted, costs to abide event.

Gilbert and Dyicman, JJ., concurred.

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


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    CÆSAR KOCH, Respondent, v. THE VILLAGE OF EDGEWATER, Appellant.

      Side-walks —• duty of city as to — defects in — duty of person having knowledge of.

    Although, as a general rule, one walking in a city has a right to expect that the corporation will have a safe side-walk, in good repair; yet, when he knows of a defect existing therein, he is bound to use reasonable and proper care to avoid injury from the same.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      George J. Greenfield, for the appellant.

      8. F. Bawson, for the respondent.
   Barnard, P. J.:

The owner of the premises occupied by plaintiff, in 1873 laid down a flag side-walk in front of the same. There was evidence tending to show that the grade adopted was accepted by the village authorities.- In 1875 the owner of the adjoining premises laid down a similar side-walk in front of his premises. The grade adopted by him was about one • foot lower than that in front of the premises occupied by plaintiff. The effect was to leave an abrupt step at the point of junction of the two grades. The plaintiff in December, 1875, struck his foot against the step and fell, thereby inflicting a rather serious injury. There was evidence tending to show that the plaintiff was present when the side-walk adjoining him was laid down, and knew of the difficulty with the walk at the place of meeting. He testified upon the trial that he did not notice the step in question, but it was proven that he was there when it was made; that he had repeatedly walked over it since. The question of contributory negligence, therefore, involved the plaintiff’s knowledge of the defect. The court charged the jury that the plaintiff had the right to rely upon the expectation that the defendant would have a safe side-walk. No doubt that is correct, as against- all persons who travel in ignorance of any defect, but a person who knew of a defect would not have that right. He would know that the defendant had not done its; duty, and that in consequence a danger existed to the incautious traveler.

Under these circumstances, I think, the court erred in refusing to charge the jury as requested; that “ if the plaintiff' knew or had notice of the defect in the walk at that point, and did not pay any attention to where he was walking, with his cane over his shoulder and his hands in his pocket, and if he had paid attention ■and walked carefully, the accident would not have occurred, then he is chargeable with contributory negligence, and he cann'ótrecover.”

-The proposition requested was that the jury, in determining the question of the contributory negligence of plaintiff, ought to take into account the fact of' the plaintiff's knowledge of the defect in question, if he did know of it.

Although the jury wore told that the plaintiff must exercise reasonable and proper caution, yet the standard of caution was no greater when a person knew of the defect than to a person ignorant of it. The charge should have been made in conformity with the request..

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

Gibert, J., concurred; Dyicman, J., not sitting.

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT C. BANCROFT, Marshal of the city of Newburgh, Respondent, v. CHARLES H. WEYGANT, Mayor of the City of Newburgh, Appellant.

      Marshal of Newburgh — remordí of— w hat not sufficient cause far — Certiorari — evidence, haw far examined on.

    By the charter of the city of Newburgh, a marshal of the police force is to be to hold office until removed for incapacity or misbehavior or neglect of duty. The relator having been appointed, was removed on the charge that before his appointment he had been a collector of taxes of the city, and . had failed to account for and pay over money collected by him.

      Held,, that this did not show incapacity or misbehavior, or neglect of duty, so as to justify his removal.
    Upon a common-law cerrtioram, the court will examine the evidence, to see if there is any competent proof to justify the adjudication made.
    Appeal from an order made at the Special Term vacating a decision made by the respondent, by which the relator was removed from the office of marshal of the city of Newburgh.
    The case came before the Special Term on a return to a writ of certiorari, issued to review the action of the respondent, as mayor of Newburgh, in removing the relator from office.
    ■ The removal was made under section 9, of chapter 326 of 1875, .which is as follows:
    “ The mayor, .with the consent-of the common council of said city, shall appoint a marshal, and not more than twenty proper persons to be police constables for said city, who shall hold their office until their removal by the mayor for incapacity or misbehavior, or neglect of duty. Before making such removal, the mayor shall give such officer notice of any charges made, and the grounds of such proposed removal; and such officer shall be heard after such notice before the mayor in his own behalf, and witnesses may be compelled to attend on such hearing, at the request of ■either party.”

      William D. Dickey, for the appellant.

      M. II. Uirschberg, for the respondent.
   Barnard, P. J.:

This appeal presents for- review a single question of law. By the provision of chapter 326, of the Laws of 1875, section 9, the mayor of the city of Newburgh is empowered, with the consent of the common council of that city, to appoint a marshal, and not more than twenty proper persons to be police constables for the ■city, who shall hold their office until their removal by the mayor for incapacity- or misbehavior, or neglect of duty. Under this law the relator, Bancroft, was appointed marshal by the then mayor in April, 1875, and the appointment was approved by the common ■council. In March, 1878, the relator was removed from this office of marshal, upon charges sustained by proof that Bancroft, the relator, had, before his appointment, held an office of collector of taxes of the city of Newburgh, and had failed to account for and pay over the money collected by him to the city treasurer. The sole question, therefore, presented is whether proof of this default as collector of taxes establishes ‘ incapacity, misbehavior, or neglect of duty,” as marshal of police. It seems quite clear that it does not. The 1 ‘ incapacity, misbehavior or neglect of duty,” must be established against the relator in respect to' the office of marshal. There is an entire absence of proof affecting the qualification of relator for the performance of such duties, and no misbehavior or neglect of duty is proved, or made the basis of the removal from office, beyond this default as tax collector.

It is now well settled that the return to a common-law certiorari may be examined to see if there is any competent proof to justify the adjudication made. There being no evidence establishing any of the causes for which the mayor had power to remove relator, the order at Special Term reversing his determination must be affirmed with costs. '

Gilbert, J., concurred; DykhaSt, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


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    AUGUSTUS PRENTICE and CATHARINE A., his wife, Respondents, v. MARY ANN JANSSEN and GERHARD JANSSEN, her husband, Appellants.

      Conversion of real estate into personalty — election of legatees as to — power of sale — what not a valid execution of

    Where a testator directs that certain real estate be sold, and the proceeds divided among persons named in the •will, the general rule is that the legatees, if of full age, may elect to take either the land or the money, provided the rights of others are not thereby affected.
    Where the legatees have elected to take the land, the executor, -who. was directed by the will to sell the same, is not a necessary party to an action brought to partition it.
    Where an executor was empowered, during the minority of the devisees of an interest in certain land, to sell the same jointly with the other owners, held, that a conveyance executed by the executor alone, after one of the devisees ■came of age, conveying “ all the right, title, interest and estate in me vested -as executor,” was not a valid execution of the power.
    Appeal from a judgment of partition entered in the abovéuntitled action, brought for a partition of certain hotel property, real and pérsoiiál,-at New Brighton. By the residuary clause of their father’s will, the property in question was given to Francis H. Blancard, Louise Blancard, Mary Ann Blancard, Caroline Blancard and Jessie Blancard. Francis H. Blancard died before his father. The executors — among whom was the defendant, Ger-hard Janssen — were, by the will, directed to sell this among other property, and divide the proceeds among the residuary legatees. Caroline Blancard died after the testator, and left one-half this property to her sister, Jessie Blancard, and one-eighth to her nephews, Horace B. Russ and Francis L. Russ, and three-eighths to her nieces — one-eighth to Louisa Russ, and two-eighths to Caroline Frances Russ. She authorized her executors, during the minority of the nephews and nieces, “ to sell or lease jointly with the other present or future owners of undivided shares therein, the share of each of such minors ” in any of such real estate.
    A demurrer to the complaint for a joinder of real and personal property in a partition suit was overruled, and the judgment .affirmed at General Term (7 Hun, 86). The plaintiff and defendant own the whole property as tenants in common.
    The defendants claimed, among other things, that the executor of Francis Blancard had an interest in the property, and should have been made a party defendant; that if he had only a power over the land, no sale could be made in this action' by which its ■execution would be defeated.

      O. JBainbridge Smith, for the appellants.

      Joshua M. Van Cott, for the respondents.
   Barnard, P. J.:

The lands which are sought to be partitioned belonged to Francis Blancard at the time of his death. By the residuary clause of his will, this property was given to his children, Francis II. Blancard, Louise Blancard, Mary Ann Blancard, Caroline Blancard and Jessie Blancard. There was a hotel called the Pavilion Hotel upon it, and by the will Francis H. Blancard, testator’s son, had the right to carry on the hotel business therein for five years. Francis H. Blancard died before the testator. The ■executors were directed by the will to sell the lands of testator, including this “pavilion” property, after the right of occupancy of Francis H. Blancard therein should cease. The proceeds were to be equally divided among the residuary legatees.

The case is a plain one when the land was directed to be converted into personalty. “ The general rule in such cases is, that the person entitled to the money, being of lawful age, can elect to take the land, if the rights of others will not be effected by. such election.” (Hetzel v. Barber, Mss. Ct. of App.)

The testator died in 1868. The residuary legatees and those representing them, to an extent of three-fourths of the property, have sold the same as land to the plaintiff. The defendant Mary Ann Janssen has since 1873 joined in leases of the property as land. The two owners have since that time expended large sums in improving the buildings built thereon as land. The answer admits that the parties own the premises as land by a tenancy in common. The rents have been divided as rents of land, and. neither party asserts or claims in the pleadings that the power be executed by the executor, nor does the moving executor, who is individually a party defendant, claim to exercise the power of sale. It is too late for the defendant now to say that the lauds., are personal property by force, of the rule of equitable conversion. There is no trust in the will requiring a sale, and the owners of that land have made their election to have it reconverted from personalty into realty. The executor Gerhard Janssen has, therefore, no interest in the premises — he had never a title. He had simply a power for the purpose of distribution. The distributee» have taken the land instead of money, and thus the executor is not a necessary party to the action as exceutor.

, Charles Blancard is not a necessary party. The will gave him $5,000 only. He is not mentioned as a residuary devisee or legatee; Francis H. Blancard, having died before his lather, took noth-. iug. Having no children, nothing passed through him; but the devise lapsed and passed under the residuary clause to the four children named besides the deceased.

. The defendant took nothing under the deed from Wample,.. executor. Caroline Blancard, one of the owners, died, and Wample was her executor. By the will- Wample, as executor, was empowered “ during the minority ” of the nephew and nieces of the testatrix, to whom she had given a half of the property, to sell-jointly with the other owners. After one of the devisees became of age, the executor conveyed to defendant, Mary Ann Janssen, “all the right, title, interest and estate in me vested as executor.” This was not a proper execution of the power. He had no estate. He had simply a power in trust. This was to be executed during the minority of the devisee, and jointly with the other owners. The share of Mrs. Janssen was properly charged with one-fourth of the repairs. She agreed in the lease to make the repairs substantially as made. She assented to those which varied from the covenant. It was understood that they would not cost over $5,000 ; they did cost more. Plaintiff did not covenant or agree to pay the excess beyond that sum.

Judgment should be affirmed, with costs.

Gilbert, J., concurred; Dyicman, J., not sitting.

Judgment affirmed, with costs.