author: Mayham, P. J.

text:
    Peter A. Delaney, App’lt, v. Charles Miller, Jr., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Pleadings—Counterclaim—Undertaking on appeal.
    An undertaking on appeal is a contract within § 503 of the Code.
    Appeal from an interlocutory judgment sustaining plaintiff’s • demurrer to a counterclaim set up in the answer.

      Stanwix & Murray ( Wm. T. Murray, of counsel), for appl’t; Stephens & Delaney (PeterA. Delaney, of counsel), for resp’t.
   Mayham, P. J.

This action is brought upon an undertaking, signed by the defendant as surety, on an appeal from a judgment of the city court of Albany to the Albany county court, on the trial of which the appellant was defeated, and judgment entered against him for costs only, on which judgment execution was issued, and returned wholly unsatisfied. The respondent, in whose favor the judgment on appeal was entered, assigned the 'judgment to this plaintiff, who is an attorney of this court, and •was the attorney for the respondent on the appeal, and- claims in the complaint in this action that he has not been paid for his services as attorney. The answer admits the execution of the undertaking, and denies all other allegations of the complaint. As a second defense, the answer alleges an indebtedness from the plaintiff to the defendant in the action which he seeks to counterclaim against the alleged liability on the undertaking in suit. To the separate defense and contention the plaintiff interposes this demurrer, upon the ground that it is insufficient in law upon the face thereof.

The legal title to any right of action on this undertaking was clearly in the respondent, against whom the appeal was brought and for whose .-indemnity it was given; and while" the attorney of the respondent had a lien for his costs against the judgment and all available security for its payment, yet, so long as the legal title to the bond remained in the respondent, an action at law could be maintained by her on such bond, and in such action, if prosecuted in her name, any valid defense to a recovery existing between the original parties to the undertaking might be interposed by the defendant. By the assignment to the plaintiff in this action, the right of the original obligee-passed to him, added to which was His lien for services; but, until the value of such services were liquidated and ascertained, it could not, as matter of law, be said that they were sufficient in amount to equal the defendant’s liability on the undertaking, which was as well for damages as costs, and any valid defence to any excess existing between the original parties would be good as against the assignee of the bond. It would scein to follow that any valid defense to the claim on the bond not covered by the plaintiff’s lien, which wrould have been available between the original parties to the undertaking, would not be " demurrable if interposed as against the plaintiff, who holds as assignee.

Wo are thus brought to the consideration of the question as to whether an undertaking like the one in suit is a contract. Whether the counterclaim is allowable as pleaded in this case must, we think, be determined under the provisions of § 502 of the Code of Civil Procedure. Subdivision 1 of that section is as follows: “If the action is founded upon contract which has been asssigned by the party thereto, other than a negotiable promissory note, or bill of exchange, a demand existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant in good faith before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff’s demand, if it might have been so allowed against the party or the assignee, while the contract belonged to him.”

The only question, therefor, for us to determine in deciding on the demurrer, is -whether this action is founded upon a contract. The learned judge whb sustained this demurrer'at the special term put his decision upon the case of Furber v. McCarthy, 27 St. Rep. 294; 7 N. Y. Supp. 613. In that case the defendant, who was sued on an undertaking given by him on an order of arrest, sought to counterclaim a note held by him against the obligee in the undertaking, and the court, by Van Brunt, J., held that the undertaking was not a contract, within the provisions of § 502 of the Oode. In that decision the court relied upon the authority of McCoun v. N. Y. C. & H. R Railroad Co., 50 N. Y. 176, and adopted the definition therein given of a contract to be “ a drawing together of minds until they meet, and an agreement is made to do or not t'o do some particular thing.” Thé opinion above referred to is in direct opposition to the decision of the general term in the second department in Atwater v. Spader, 12 St. Rep. 506, where it was held —Dykman writing the opinion of the court'— that, in an action upon an undertaking given on an order of arrest, the defendant might counterclaim an indebtedness to him from the obligee under the provisions of § 501 of the Code of Civil Procedure. This decision was not referred to by Van Brunt, J., and the two decisions of equal authority stand directly opposed to each other. Under these circumstances, we are called upon to determine in this case the same question as to which they so radically differ. From a careful examination and analysis of §§ 501 and 502, and the decisions hearing upon its interpretation, we are inclined to the opinion that an undertaking given "on an order of arrest on an application for an attachment, or for an injunction, and all that class of undertakings given to indemnify a party in the progress of an action, may be regarded as contracts, within the meaning and intent of those sections. Clearly, an undertaking is an agreement to' do an act, the doing of which is a matter of personal interest and advantage to the promisee or obligee therein; and while there is no consideration of benefit to the promisor or obligor, when he signs only for the accommodation of the plaintiff, there is clearly a consideration of harm to the promisee if the'obligation is not performed. Such a consideration is deemed sufficient consideration to uphold a contract; and although the party to whom the obligation is given, and for whose protection it is made, may not be,, and is not, a^voluntary party to it; still, as in this case, he or his assignee may sue upon it, and it inures to his benefit. Lawrence v. Fox, 20 N. Y. 268. In Wickham v. Weil, 43 St. Rep. 155; 17 N. Y. Supp. 518, the Flew York common pleas at general term held that, in an action against sureties on an undertaking given on an attachment, a counterclaim could be properly set up in the answer on the ground that such an undertaking was a contract, within subdivision 2 of § 501 of the Code of Civil Procedure. In this case, Pryor, J., in an able and exhaustive review of all of the authorities, including Furber v. McCarthy, supra, reaches the conclusion that an undertaking required by statute, and given in a legal proceeding in a civil action, is a contract which, when sued upon, may be counterclaimed. It is true that it has been held in McCoun v. N. Y. C. & H. R. Railroad Co., 50 N. Y. 176, that an action on a bond for a penalty given by statute is not an action on contract. But there seems to be a manifest distinction between, a bond given by statute for a penalty, and a bond given in a proceeding by one party to another to indemnify the party for whose benefit it is given from some injury that he may suffer by reason of the acts of the other party to the action. Coit v. Stewart, 50 N. Y. 17. In Taylor v. Root, 4 Keyes, 335, Woodruff, J., in discussing the right to interpose a counterclaim to an action on a judgment under a provision of the Code of Procedure substantially like the provision of the Code of Civil Procedure in question, defines contracts to be of three kinds, —simple contracts, contracts by specialty, and implied contracts ; and he adds: “A judgment is a contract of the highest nature known to the law. Actions upon judgments are actions on contract. The cause or consideration of the judgment is of no possible importance.”

While this may not be an authority béaring directly upon the question of the bond under consideration, it is a plain indication that a counterclaim may be interposed in cases where the party is not voluntarily connected with the obligation which he seeks to enforce. We are of opinion that the weight of authority is _ia favor of the contention that the bond in suit is a contract, as to which a counterclaim majr be properly interposed by answer, and that the judgment on demurrer must be reversed.

Judgment reversed, with costs of the demurrer and of this appeal to the defendant, on the payment of which within 20 days after notice of taxation of same,- the plaintiff may reply to the answer.

Putnam, J., concurs; Herrick, J., not acting.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    James J. Fitzgerald et al., App’lts, v. Edgar M. Payn et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Venue—Convenience of witnesses.
    Where a question of fact is presented by conflicting affidavits, a decision of the special term on a motion to change the place of trial, for convenience of witnesses, will not ordinarily be disturbed on appeal.
    Appeal from an order changing the place of trial from Greene to Albany county.

      James J. Fitzgerald, for app’lts; Worthington Frothingham, for resp’ts.
   Putnam, J.

It was held by this general term in Lane v. Town of Hancock, 29 St. Rep. 635; 9 N. Y. Supp. 97, that, on a motion to change the place of trial for the convenience of witnesses, the decision of the special term on a question .of fact presented by conflicting affidavits should not be, ordinarily, interfered with by the general term. In Henderson v. Jackson, 2 Sweeney, 603, it was also' held that the decision of a motion by a special term on conflicting evidence will not be disturbed by the appellate court on a disputed fact involved therein. In this case a question of fact was presented to the special term, as to whether two of the plaintiffs resided in the citjr of Hudson or in the county of Greene. That said defendants had, shortly before the commencement of the action, resided in Hudson was conceded. But the plaintiffs claim that before the commencement of the action, and in 1892, they had removed from the city of Hudson to Greene county.

The affidavits of the plaintiffs are not, satisfactory to me- What is meant hv stating therein that the said two defendants are residents of the count)? of Greene “according to the well-known construction of § 984 of the Code of Civil Procedure,"’ I am unable to determine. The statements in the, affidavits read by plaintiffs that said “firm after the making of the contract, moved to Ooxsackie,” closed up their business in Hudson, changed their address, transacted their business in Góxsackie, etc., does not show but that the members continued to reside at Hudson. The allegation in said affidavits that the defendants Michael and John lived in Ooxsackie, occupying a dwelling house there, and cultivated a farm of 45 acres in said town, may all be true, and yet the place of residence of said defendants may have never been changed from Hudson. It will be observed that the plaintiffs do not contradict the allegation in the moving affidavit that in November, 1893, long after they claim to have changed their residence, they caused themselves to be registered at Hudson, and voted there. This allegation, not being denied, must be assumed to be true. If, in fact, said defendants immediately before the commencement of the action, and in November, 1893, a long time after they claimed to have changed their residence, actually voted in the city of Hudson, it may be doubted whether they could be considered as residents of Greene county, “according to the well-known construction of § 984 of the Code of Civil Procedure,” or in any other view. Without, howoveT, discussing the affidavits, I think that a fair question was presented to the special term for its decision on conflicting affidavits, and that its holding should not be disturbed bv us under doctrines established by the authorities above cited, and kindred cases.

Mayham, P. J., concurs; Herrick, J., not acting.


text:
    Asa Gillett, Resp’t, v. Trustees of Village of Kinderhook, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Municipal corporation—Sewage.
    A village is liable for injury to land caused by discharging sewage thereon.
    8. Damages—Measure—Flooding Land.
    The measure of damages for flooding land is the loss of rents and permanent injuries, but not the difference in value of the land before the flooding and at the time of trial.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial and refusing to set aside the verdict on the gound that it was contrary to evidence and to law.

      Parker & Fiero (J. Newton Fiero, of counsel), for app’lt; A. TL Farrar, for resp’t.
   Putnam, J.

We are of the opinion that, on the testimony in this case, the jury could properly have rendered a verdict for the plaintiff for whatever damage he was shown to have sustained by reason of defendant’s wrongful act in collecting and throwing on premises the sewage and surface water from its streets. The principle decided in Urquhart v. City of Ogdensburg, 91 N. Y. 67, does not apply to such a case as this. The liability of the defendant is not so much on account of the grade of its streets, and its sewers therein, as of its negligent act in failing to provide a proper outlet for the discharge of the sewage. The doctrine held in Noonan v. City of Albany, 79 N. Y. 470; Chapman v. City of Rochester, 110 N. Y. 273; 18 St. Rep. 133; Stoddard v. Village of Saratoga Springs, 127 N. Y. 261-268; 38 St. Rep. 683; and Schriver v. Village of Johnstown, 71 Hun, 232; 54 St. Rep. 573, —applies to tit is case. Without attempting to discuss tne evidence, the jury could very well find therefrom a failure on the part of defendant to take proper measures to discharge the surface water and sewage from its streets into the creek. But we have reluctantly come to the conclusion that a new trial should be granted, for the reason that during the trial, and on the submission of the ease to the jury, an improper rule of damages was adopted. In the court below, no exceptions were taken • by defendant that require discussion, and no objections appear to have been made to the rule of damages adopted. There are cases, however, holding “that, when a case has been submitted at a circuit to the jury upon a theory which, js wholly erroneous, the general term has power, and it is its duty, to grant a new trial ^because of erroneous instructions, though an exception was taken.” Whittaker v. D. & H. Canal Co., 49 Hun, 400-405; 22 St. Rep. 409 ; Mandeville v. Marvin, 30 Hun, 282; Lattimer v. Hill, 8 Hun, 171, 172; Hamilton v. Third Ave. Railroad Co., 53 N. Y. 25-27.

The rule of damage adopted on the trial was the difference in value of the plaintiff’s premises before the flooding and at the time of the trial. It is true that there was some evidence given showing the destruction in several years of a quantity of hay on the plaintiff’s farm, in consequence of the same being flooded, but the evidence in this regard was not sufficient to sustain the verdict of the jury. The case was evidently tried and submitted on the theory that plaintiff was entitled to recover the difference in value of his farm before it was flooded by defendant’s sewer in 1884 and the value at the time of the trial. This theory was clearly not correct. Plaintiff was entitled to recover the loss in the rental value of his premises up to the time of the commencement of the action ; or he could have recovered the value of the hay destroyed, and, had it been made'to appear that any permanent injury to the premises was occasioned by the flooding, he could have recovered for that injury. As suggested in Hartman v. Tully P. Line Co., 71 Hun, 367, 368 ; 55 St. Rep. 28, the case Was tried on the theory that the flooding of plaintiff’s premises would last forever, and that hence plaintiff in this action could recover the total and permanent depreciation which it caused, in the market value of his land. But the plaintiff, after collecting the judgment in this action, might commence another one against defendant, and obtain a perpetual injunction; or he could, in a subsequent action, recover damages since the date of the commencement of the first action. And, if the rule of damage adopted on the trial was correct, he could again recover in such subsequent action the same damages,—the difference in value between the plaintiff's premises before being flooded and at the time of the trial. It is evident that the rule of damage adopted on the trial was not the proper one. Hartman v. Tully P. Line Co., 71 Hun, 367 ; 55 St. Rep. 28; Reichert v. Backenstross, 71 Hun, 516 ; 55 St. Rep. 125 : Colrick v. Swinburne, 105 N. Y. 503 ; 8 St. Rep. 172; Duryea v. Mayor, 26 Hun, 120; Uline v. N. Y. C. & H. R. Railroad Co., 101 N. Y. 98-116; Covert v. Valentine, 50 St. Rep. 516 ; 21 N. Y. Supp. 219. It seems, therefore, that the special term should have granted defendant’s motion for a new trial. The judgment was unsupported by any legitimate evidence. As above stated, it could not be sustained for the amount rendered, on the testimony produced by plaintiff showing the destruction of a quantity of hay in consequence of the premises being flooded, ami the jury could not properly base a verdict on the testimony produced as to the difference in value between the plaintiff’s farm in 1884 and at the time of the trial.

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

All concur.


text:
    Frederick Hall, App’lt, v. Adeline Campbell et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Parties — New — Defendants.
    A party, who first commences an action oí partition, and, by a mistake not attributable to any want of care or negligence on liis part, omits a necessary party defendant, should be permitted to amend by bringing in such party.
    Appeal from an order denying plaintiff’s application for leave to bring in a new party defendant

      Stephens & Delaney (Peter A. Stephens, of counsel), for app’lt; Stedman, Thompson & Andrews (George W. Stedman, of counsel), for resp’t.
   Putnam, J.

This action was commenced on the 14th day of July, 1893, for the partition of certain real estate described in the complaint, of which one Ozias Hall died seized. The plaintiff, one of the heirs of Ozias, made all the other heirs of said deceased parties defendant, they and said plaintiff appearing to be the only persons who had any interest in the land sought to be partitioned. Plaintiff in this complaint alleged that Willis Hall and Sharon Hall, two of the defendants, were each seized of an undivided ninth part of the premises in question. In fact, prior to the commencement of the action, Willis had conveyed his interest therein to Sharon, so that Willis was an unnecessary party, and the interest of Sharon was two-ninths, instead of one-ninth, as alleged in the complaint. The deed from Willis to Sharon was not put on record until after the commencement of the action, and its existence was unknown to plaintiff. The complaint also alleged that one George Hall, a son of said Ozias, died nearly three years before this action was ^commenced, intestate, leaving five children, who were made parties. In fact, however, said George left a will, which was admitted to probate on August 3, 1893, after the commencement of the action. In the will he bequeathed his interest in the real estate in question to his widow, Ida Hal], who was not a party, and who at once commenced an action to partition said land, making the proper parties defendants. Plaintiff did not know of the existence of said will when he served his complaint. He moved to be allowed to serve an amended and supplemental summons and complaint, in "which the names of the said heirs of George Hall and the name of said Willis Hall shall be omitted as defendants, and the name of Ida Hall inserted in the title thereof, and appropriate amendments made to the complaint, showing the interest of Ida and said Sharon Hall in said premises. The motion was denied, and the plaintiff appeals.

It is impossible to find any fáult with the procedure oi the plaintiff. He made all the parties defendants who, when he commenced the action, appeared to have any interest in the promises. The mistake made was not due-to any laches or neglect on" his part. It arose from the fact that the deed from Willis to Sharon Hall had not been placed on record, and that the will of George Hall had not been admitted to probate, although nearly three years had elapsed since his death. The mistake of plaintiff was unavoidable. He appears to have commenced his potion in good faith, and to have been regular in his practice, and having, without fault on his part, omitted to make Ida Hall a party defendant, I think it would have been “in furtherance of justice” to have granted his motion. Under the provisions of §§ 723 and 452, Code of Civil Procedure, he was entitled to the relief asked for.

The fact that Ida Hall had also commenced an action to procure the partition or sale of the same premises need not be now considered. The plaintiff’s action was commenced, and, under the circumstances, he, having by a mistake not attributable to any want of care or negligence on his part omitted a necessary party defendant, should have, under the provisions of the above cited sections of the Code of Civil Procedure, the amendment he asks for. When tire amendment is made, the court can properly determine whether or not the two actions shall further proceed, and, if not, which action shall be stayed.

It was suggested by respondents that the parties are unable to defray the expenses of two partition actions. This expense could have been avoided had Ida Hall made an application, under the provisions of § 452, supra, to be made a party defendant in the-first action. But, doubtless, the court, on a proper application, and when all the parties interested are before it, will,, make an-order staying the further prosecution of one of the actions. Kimball v. Mapes, 19 Wkly. Dig. 481; 98 N. Y 629 ; Burlingame v. Parce 12 Hun, 149; McCarthy v. Peake, 18 How. Pr. 139; Dolbeer v. Stout, 46 St. Rep. 858 ; 19 N. Y. Supp. 820; N. Y., L. R. & W. Railroad Co. v. Robinson, 15 St. Rep. 237. I think the order should be reversed, with costs and disbursements, and motion granted, without costs in the court below.

Mayham, P. J., concurs ; Herrtck, J., not acting. '


text:
    George Hamilton, App’lt, v. John Forsyth, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Witness—Credibility—Party.
    Tlie rule that the credibility of the testimony of a party is a question for the jury does not apply, where lie is called as a witness by the adverse party.
    3. Appeal—Harmless.
    The rejection of evidence as to an issue, which is fully proved by the other evidence in the case, is harmless.

      Appeal from a judgment of the county court reversing the judgment of a justice of the peace.

      Eckert é Westbrook (John D. Eckert, of counsel), for app’lt; Charles F. Cantme, for resp’t.
   Putnam, J.

The respondent claims that the judgment of the justice was properly reversed by the county court on account of the alleged error of the justice in excluding the check for §4.50, dated March 26, 1891, offered in evidence by the defendant on the trial; that, if such check had been received, it would have shown a cash payment of §4.50 by defendant to plaintiff on March 26, 1891; and, a cash payment of §25 in the same month being admitted, such payments would have tended to show that plaintiff’s claim that he commenced work for the defendant on March 9, 1891, was untrue, as in that case no sum would have become due to plaintiff until April 9, 1891. But the only evidence in the case in regard to the said check was that introduced by defendant. He proved by plaintiff whom he (defendant) made his witness in that .regard, that the check in question was given for three days’ work done prior to March 9,1891. The defendant was afterwards sworn, and did not contradict plaintiff’s testimony, but rather corroborated it. Hence, the defendant proved that the check in question was for work done prior to the alleged hiring; and, such being the case, it was properly excluded by the' justice. Had the defendant, in the first instance, proved the check in question by another witness than the plaintiff, and the latter, as a witness on his own account, had testified that said check was given for work done prior to March 9, 1891, doubtless the defendant would have had the right to go to the jury as to the credibility of plaintiff’s testimony, even if such statement of the plaintiff had not been denied on the trial. But defendant chose to make the plaintiff his own witness in regard to the check, and proved by him what the check was given for, and that it was not material to the issues formed by the pleadings; and, his evidence not being contradicted, the justice was authorized to sustain plaintiff’s objection to the introduction of the paper. But, were it otherwise, it may be doubted whether the error of the justice, if any error there was, in excluding the paper in question, was one that in any manner harmed the defendant. The facts that the check would have shown, if- intro-' duced, seem to have been proved by the evidence in the case. The plaintiff testified: “This check was given to me for days’ work done before March 9, 1891, for Mr. Forsyth; for three days’ work at §1.50 per day.” Defendant testified: “This check of March 26, 1891, is for three days’ work at §1.50 per day.” The above-quoted testimony was not stricken out, but remained in the case, and showed that on March 26, 1891, defendant gave to plaintiff a check for three days’ work, at §1.50 per day. The check, if introduced, would have shown no more.

The judgment of the county court should be reversed, with costs.

All concur.


text:
    John Hardwick, Resp’t, v. Royal Food Company of New Jersey et al., Def’ts. Thomas E. Ferrier, Claimant, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Mechanic’s Lien—Answer—Failure.
    In an action to foreclose a mechanic’s lien, a judgment, settling the rights of the defendants, is conclusive on them, though they faiied to answer.
    Appeal from an order confirming the report of a referee.

      Frank H. Osborn, for app’lt; James B. Olney, for resp’ts.
   Mayham, P. J.

A sale under a judgment of foreclosure in the above-entitled action on a mortgage on real estate, of which the defendant had the legal title, subject to the mortgage, was perfected on the 18th of April, 1893, leaving a surplus of $893.76, which was deposited in the county treasury. The mortgage on which this foreclosure was had was dated March 31, 1890, and recorded May 5, of the same year. The promises covered by the mortgage were conveyed to the defendant April 1, 1891. August 10, 1891, the Posts, as partners, filed a mechanic’s lien against the premises sold on such foreclosure sale, for labor and material, for $804.85. September 18, 1891, Conklin filed a notice of mechanic’s lien, claiming $600.60. October 16, 1891, Hill filed notice of a mechanic’s lien on the premises, claiming $880.40 December 14, 1891, Johnson filed notice of mechanic’s lien on the premises, claiming $140.08. O11 the 19th of November, 1891, the Royal Food Company executed and delivered to William Onderdonk, to secure the payment of $15,000 and interest one year from date, a mortgage on these premises, which was recorded on the 23d day of November, 1891. The mortgagee, Onderdonk, assigned this mortgage on the 9th of September, 1892, which assignment was acknowledged on the 15th of that month, to Thomas "E. Ferrier, who, by a declaration in trust, in writing, dated October 24, 1892, acknowledged that said bond and mortgage was assigned to him in trust for the Catskill Nation al Bank, to secure all notes, checks, and demands due or to become due the bank from the Royal Food Company. At that time, and ever since, the Royal Food Company has owed said bank about $2,000 in notes, which were part due at the time of the distribution of this surplus. An action in the supreme court was prosecuted by Herbert K. Hill on the lien filed by him, wherein all the other lienors, the defendant in this action, and Onderdonk xvere made parties defendants. None of these defendant appeared or answered, whereupon the plaintiff in such action, on proof of default and of filing Us pendens, obtained an order of reference, whereby it was referred to a referee, to compute the amount due the plaintiff on his lien, and also to take proof, and report the other liens on said property, and determine the amount thereof, and when the same were filed, and whether any and all are due, and the order of precedence or priority thereof, and the names of the holders thereof, and determine the amount due to each. Pursuant to this order of reference the referee therein reports that he duly Qualified, and was attended upon by the plaintiff’s attorney, none of the defendants appearing and proceeded to hear the evidence. The referee, in his findings of fact, reports the names of the lienors; the services and materials for which the respective liens were filed ; the amount due each lienor at the time of the hearing; also the amount of the Hard-wick mortgage, then being foreclosed; the pendency of the action against the food company for the recovery of $5,000 purchase money; also the existence of mortgage of $15,000 by the food company to Onderdonk, which he reports as an apparent lien, but which the plaintiff in the action for purchase money seeks to set aside. As conclusions of law he finds the Hardwick mortgage as a first lien, and that all of the other lienors have liens,-the amounts of which he determines, and directs judgment entered in accordance with the prayer of the complaint. Upon this report judgment was entered, directing the sale of the premises, and the payment of the liens therein found due as follows: To Post & Bros., $216.95; to Charles Ballcins, $629.85; to Herbert K. Hill, $398.13 ; and Harriet W. Johnson, $145.20,—on the 13th day of July, 1892. No sale of the property to which these liens attached was made on this judgment, but said premises were sold under a decree in foreclosure of the Hardwick mortgage, and a report of sale was filed therein on the 20th day of April, 1893, by which it appears that there was a surplus over and above the payment of that mortgage, and costs, of the sum of $804.85, to determine the right to which these proceedings were instituted.

The only question which seems to be in controversy on this appeal is as to whether the proof before the referee in these proceedings authorized the allowance of the claims of any of the lienors except that of Hill. It is insisted by the learned counsel for the appellant that, as none of the defendants in the action brought by HilPfor the foreclosure of his lien appeared or answered therein, there was no such adjudication of their respective claims as would authorize the referee upon these proceedings, upon the mere presentment of the record in that case, to allow them as liens upon this surplus. Section 17 of chapter 342 of the Laws of 1885 makes it the duty of all persons seeking to foreclose a lien to make all other lienors, either senior or junior, parties defendants, and provides that ail persons, firms, corporations, and associations who have filed notices of liens under this act shall, by answer in such action, set forth the same; and the court in which such action is brought may settle and determine the equities of all parties thereto, and decide the extent, justice, and priority of the claims of all parties to the action, and upon every counterclaim or set-off alleged therein, to the extent of their respective jurisdictions. Under this section the counsel for the appellant insists that the filing of an answer by lienors who are made defendants is a jurisdictional prerequisite to the adjudication of the validity and priority of the lien, and that without the interposition of an answer the court cannot determine the validity of the same; and that the referee, in the proceeding to determine the title to the surplus, erred in awarding any portion of it to those whose liens were only established by the judgment in the action prosecuted by Hill to foreclose his lien. Section 7 of chapter S42 of the Laws of 1885 provides that the liens authorized under that chapter may be enforced by a civil action in any court of record in the city or county where the property is situate. Section 8 of that chapter prescribes the form of action, and provides that a certified copy of the notice of such lien shall be entitled to be read in evidence, and shall be prima facie evidence of the existence and filing of the lien. Section 6 of this chapter provides that, where a claimant is made a party defendant in an action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant, who is a claimant within the provisions of this act.

This action by Ilill to foreclose his lien was prosecuted in a court of general jurisdiction, which had, by the service of the process and the pleadings and liens before it, acquired jurisdiction of the persons of all these parties and of the subject matter of that action. McAllister v. Case, 24 St. Rep. 52; 5 N. Y. Supp. 918. In that action, as we have seen, all the liens, both of the plaintiffs and defendants, could be foreclosed. Onderdonk, whose interest is now represented by Ferrier, as trustee, who brings this appeal, was a party to that action upon the record. No appeal was taken from that judgment. The decree in the action by Hill assumes to dispose of the rights and equities of all the lienors who were parties thereto. But it is urged that, if the general jurisdiction of the court be conceded, and that it acquired jurisdiction of the parties and subject-matter in this case, still it had no power' of its own to adjudicate upon the rights of parties not submitting their right to it; and that, as these defendants failed to answer as required by § 17 of the statute, supra, its voluntary adjudication of their rights was inoperative and void. It is not quite clear what purpose the answer under § 17 was intended to serve. That it was a proper step in the proceeding is quite,apparent, but there is nothing in the statute which divests the court of jurisdiction, which it has regularly acquired, by the defendant’s failure to answer. Doubtless, if the plaintiff had stated in his complaint the liens of the defendants improperly, that defect could have been corrected by answer; but, as the defendants were befort the court, and had the opportunity to answer, and failed to do so, and judgment went against them, or was entered in a manner that their rights were prejudiced, the judgment, until set aside or reversed,,would be conclusive upon them. They could not attack it collaterally. Any of the parties to the Hill action might have answered, contesting any of the liens as set out in the bill of complaint, and in that way litigated their correctness or validity. The power to determine conflicting rights or claims between defendants in an action is expressly provided for by § 521 of the Code of Civil Procedure. Albany City Sav. Institution v. Burdick, 87 N. Y. 40-46; Derham v. Lee, Id. 599-604. In the courts of equity the relief they administer is flexible, adapted to the exigencies of the case in hand, and it cannot be doubted that when they have control of the parties the court can make a full determination. Albany City Sav. Institution v. Burdick, supra. The appellant’s assignor being before the court in the action by Hill, it was his duty, if the claims of the defendants were not correctly stated in the complaint, to have raised that question (§ 521, Code Civ. Proc.), as he was required to do by § 17 of chapter 342 of the Laws of 1885. and had that question settled in that action. Failing to do that, we do not see how he can attack the validity of the decree collaterally in these proceedings. In Re Stilwell's Estate, 139 N. Y. 341; 54 St. Rep. 491, the court in discussing the right to attack a judgment collaterally, uses this language: “ The validity or regularity of a provision in a judgment of foreclosure, not raised by a party to the suit by answer, appeal, or motion, cannot be raised collaterally when the court rendering the judgment had general jurisdiction of the parties and the subject-matter of the action.”

This judgment in the Hill case was an action of foreclosure, conducted in the ordinary manner of an action of foreclosure, and the rules applicable to judgments in foreclosure of mortgage seem to be applicable to judgments of this character. We think, therefore, that the referee was right-in holding that the rights of the lienors were fixed by the judgment in the action by Hill, and that his report was properly confirmed by the order of the special term.

Order of special term affirmed, with costs and printing disbursements.

All concur.


author: Per Curiam.

text:
    John S. Hutt, Resp’t, v. Arram Zimmer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Contract—Printed blanks.
    Where the written part of a contract on a printed form is irreconcilable with the printed part, the written portion must prevail.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      0. W. Hinman, for app’lt; John S. Pindar, for resp’t.
   Per Curiam.

The parties, on December 20, 1889, entered into a written contract for the sale of hops by the defendant to plaintiff for the three years next ensuing. A printed blank was used in drawing the contract, which was thus partly in print, and partly in writing. It contains the -following clause, of which the part in italics was written, and the residue printed : “ The party of the first part hereby agrees to sell, and does hereby sell and agrees to deliver or cause to be delivered to the party of the second part or their authorized agent all of the hops grown on his farm not to exceed fifteen acres now under cultivation for the term of three years.”

The question in the case is as to the construction to be given to this clause. On December 20, 1889, at the time of the making of the contract, defendant had but 8 acres of hops under cultivation. In the last year of the contract, defendant had more than 8 acres of hops, but not over 15, under cultivation, and produced 3,405 pounds of hops not raised on the 8 acres under cultivation when the contract was executed, which he refused to deliver to plaintiff, claiming that under the writing he was only bound to deliver the product of the said 8 acres. The rule that .must govern us in construing such a contract as the one under consideration is well stated in 2 Pars. Cont. (7th Ed.) 647, 648, as follows: “Instruments are often used which«are in part printed, and in part written,— that is, they are printed with blanks, which are afterwards filled up; and the question may occur, to which a preference should be given. The general answer is, to the written part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively. The blanks are left purposely, that the special statements or provisions should be inserted which belong to this contract, and not to others, ahd thus discriminate this from others. And it is reasonable to suppose that the attention of the parties was more closely given to those phrases which they themselves selected, and which express the special particulars of their own contract, than to -those more general expressions which belong to all contracts of this class. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopte.d because the intention of the parties is presumed to be alive and active throughout- the whole instrument, and that no averments are anywhere inserted without meaning and without use.

And see Hill v. Miller, 76 N. Y. 32 ; Bryant v. Poughkeepsie Mut. Ins. Co., 17 N. Y. 200 ; Miller v. Hannibal & St. J. Railroad Co., 90 N. Y. 430.

It follows that, if the written and printed portions of the clause of-the contract above quoted can be reconciled by any reasonable construction, such a construction must be given ; but, if the written and printed part^of said clause are in fact irreconcilable, effect must be given to the written portion. Upon the written part of the clause of the contract in question, omitting the printed words “now under cultivation,” defendant agreed to sell and deliver to plaintiff “all of the hops grown on his farm-not to exceed fifteen acres," for the term of three years. But at the time of making this contract, there being only eight acres under cultivation, under the printed words in said'clause, “now under cultivation,” defendant was only bound to deliver to plaintiff the hops grown on eight acres during the three years. It therefore appears that, the written and printed part are repugnant to each other. If the construction placed on the contract by the appellant is the true one, the words “not to exceed fifteen acres” are surplusage. The contract should have simply contained an agreement to sell and deliver to plaintiff all the hops grown on his farm on the part under cultivation. The learned counsel for appellant suggests that the printed and written parts of the clause in question can be reconciled, and should be read as follows, viz.: “Defendant is to deliver to plaintiff all the hops grown on his farm now under cultivation, not to exceed fifteen acres, for the term of three years.” We are unable to agree with this contention of the appellant. Such a construction of the contract is inconsistent with the language used in the written portion. If the intent of the parties was as suggested by the appellant, the words “not to exceed fifteen acres” would have been omitted, and in any event the natural language would have been “not exceeding,” instead of “not to exceed,” and as defendant doubtless knew how many acres he had in hops, the contract would, after the words “not exceeding,” have contained the words “eight acres.” The written part of the contract, in using the words “not to exceed fifteen acres,” was apparently so drawn because the parties did not know how many acres the defendant would put in hops ‘for the three years during which the contract was to last. It was not the natural or proper language to use, if-it was the real intention of the parties that defendant should only deliver to plaintiff, under the contract, the hops grown on the eight acres then in cultivation. We conclude, therefore, that the case was properly disposed o£ at circuit, and that the judgment should be affirmed, with costs.


text:
    Maria Ives, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Service—Corporation.
    A summons against a corporation may be served upon an agent who has entire superintendence, within a certain district, of its business.
    Appeal from a judgment of the county court affirming a judgment of a justice of the peace.

      John De Witt Pellz ( Wm. L. Learned, of counsel), for app’lt; Frederick A. Chew, for resp’t.
   Per Curiam.

We think that Corcoran was a managing agent for defendant, within the meaning of subdivision 8' of § 431 of the Code of Civil Procedure. He had the control, subject to the direction of the home office, of the district composing the cities of Troy and Lansingburgh, and vicinity, with 9 assistant superintendents and 62 subagents subject to his orders. In that district he had the entire superintendence, of all the defendant’s business. It has been well settled that subdivision 3 of § 431, supra, means, not “the,” but “a,” managing agent, and hence a corporation may have different agents in.different localities. Brayton v. N. Y., L. E. & W. Railroad Co., 72 Hun, 602, 603 ; 54 St. Rep. 763 ; Palmer v. Pennsylvania Co., 35 Hun, 369. We think that one having entire charge of defendant’s business and subagents over so large a territory as Corcoran did must be deemed a managing agent. That he was controlled in the discharge of his duties by the home office does not render him any less a managing agent. An agent is a person acting in behalf of another. He is supposed to carry out the directions of the principal. All his acts are deemed those of the party he represents. Therefore, Corcoran, although his acts were performed under the direction of defendant's officers at the home office, yet, as he, in his district, was the sole representative, and performed therein all its business, he was a managing agent, on whom services of process could be properly made. We think the remarks of Dwight, J., in Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 48 Hun, 190, 192 ; 15 St. Rep. 686, are applicable to this case, viz,: “All the servants ■of the company engaged in the promotion of the work in question were acting under his orders. The work was done under his personal supervision and direction. He was the managing agent of the defendant in respect to all matters local to the important division of which he was superintendent. * * * He was the officer who received from the chief authorities * * * all the general orders pertaining to the managment and operation of his division, and he must have been the officer chiefly relied upon to transmit to those authorities all information respecting its condition and requirements. He was the officer whose position, rank, and duties made it, in the language of the opinion in Palmer v. Pennsylvania Co., 35 Hun, 369 ; 99 N. Y. 679, 1 reasonably certain that the defendant will be appraised for the service made.’”

See, also, Barrett v. Am. Tel. & Tel. Co., 31 St. Rep. 465; 10 N. Y. Supp. 138; Id., 138 N. Y. 491; 53 St. Rep. 86.

We therefore conclude that the judgment of the county court should be affirmed, with costa All concur.


text:
    George Kautz, App’lt, v. Harry Vanbenburgh, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Judgment—Offer—Time of service.
    An oiler of judgment, served on the same day, may be deemed to have been served before the answer.
    .3. Costs—Offer of judgment.
    A judgment for plaintiff for less than the amount of an offer is more favorable than the offer, where the recovery and an extinguished counterclaim together exceed the amount of such offer.
    Appeal from an order vacating and setting aside the taxation of costs in favor of plaintiff, and directing taxation of costs in favor of defendant.

      Stedman, Thompson <& Andrews {George W. Stedman, of counsel), for app’lt; Jas. C. Matthews {Mark Cohn, of counsel), for resp't.
   Putnam, J.

The action was brought to recover for work and materials. The complaint, served May 2, 1893, set up one cause of action, and demanded judgment for §179.61. On the 1st day of June, defendant, pursuant to § 738 of the Code of Civil Procedure, served an offer to allow a judgment for $105 and costs, and on the same day served an answer denying plaintiff’s cause of action, and setting up two counterclaims. The offer was not accepted. Afterwards plaintiff served an amended complaint setting up an additional cause of action, and demanded judgment* for $246.51. The defendant served an answer to the amended complaint denying plaintiff’s cause of action, and set up the same counterclaims, and demanded judgment for the dismissal of the •complaint. The offer to allow judgment was not renewed after service of the amended complaint and the answer thereto. Plaintiff, on the trial, recovered a sum (excluding interest) less than the amount the defendant offered. He claimed costs, however, on the ground that by the judgment the counterclaims set up in defendant’s answer were --extinguished, and, the amount of such counterclaims and the sum recovered being larger than the offer of defendant, the j udgment was more favorable than the offer. The county clerk took that view of the case, and taxed costs in favor of the plaintiff. This taxation was, however, overruled by the Albany county court. Said court directed the clerk to set aside the taxation of plaintiff’s costs, and to allow defendant the costs of the action. The plaintiff appeals.

This being an appeal from the order of the county court, we can only consider the papers used before him on the motion for retaxation. An affidavit of James 0. Matthews was attempted to be read by defendant, but was excluded by the court on the ground that a copy thereof had not been served. The county judge, in his discretion, could have allowed the affidavit to be used, or could have postponed the hearing, so that a copy of such affidavit could have been properly served. But such a course was not taken, and the affidavit having been excluded by the 'Albany county judge, we cannot consider it on the appeal. Nor can we properly give any force to the remarks of the county judge in his certificate as to the said affidavit of Matthews: “That it was unnecessary to consider said affidavit, as the statements made by counsel for defendant and plaintiff showed that, as a fact, the service of the offer of judgment and answer was one transaction, made at the same time and on the same day, the offer of judgment being handed to the attorney for the plaintiff first, and the answer next, and immediately after the offer of judgment.”

If such remarks of the county judge had been embraced in the order appealed from, it might have been deemed that he acted on the oral admissions of the parties before him, and such remarks .might have been regarded by us; but, contained in the certificate, said statements of the court below must be deemed like an opinion of the county judge, and cannot properly influence our judgment formed on papers before us. From the papers before us it then appears, by the affidavit of George W. Stedman, that the offer of judgment in the case was served before the service of the answer, although it is admitted that such service of both papers was made on the same day. Said affidavit is not contradicted. The admission of service made by plaintiff’s attorneys on the back of the offer of judgment and answer show a service of the two papers on the same day, but do not contradict the statement that the offer was served before the answer. We have no doubt but what an offer of judgment can be deemed served before an answer, although both papers are served on the same day. This was held in Ruggles v. Fogg, 7 How. Pr. 824, by Harris, J. This case was cited in Schneider v. Jacobi, 1 Duer, 194, 195; and ■approved in Tompkins v. Ives, 8 Abb Pr.. (N. S.) 267-269. An offer and answer served thu same day might be deemed served together or at different times, according to the intention of the parties serving. Here, in the papers, we are át liberty to examine, it appears by the undisputed affidavit of an intelligent and reputable attorney that the offer was first served. It is to be regretted that the attorney of respondent did not take proper means to read an affidavit before the county court stating his view of the facts of the case. The papers, then, showing that the offer in question was first served, the contention of the appellant that the judgment obtained was more favorable than the offer should have been sustained. It is settled in such a case that the effect of an offer must be determined by the state of the pleadings when it is served, and the acceptance thereof will not extinguish a counterclaim in an" answer subsequently served, although such acceptance tvere made after service of such answer. Tompkins v. Ives, 3 Abb. Pr. (N. S.) 267, 268 ; Fieldings v. Mills, 2 Bosw. 489. The papers presented to us, therefore, show that defendant's answer was served subsequent to the offer of judgment; and hence, it appearing that the plaintiff has obtained a judgment extinguishing defendant’s counterclaim, which would not otherwise have been extinguished, we think the judgment obtained was more favorable than‘the offer, and hence that the plaintiff was entitled to the costs of the action. The order of the county court should be reversed, with costs, and the motion denied. All concur.


author: Pütnam, J.

text:
    Homer J. Martine et al., App’lts, v. William H. Robinson et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Assignment for creditors—Partners.
    A partner can, with the oral or written consent of his co-partner, make a general assignment for the benefit of creditors.
    2. Same.
    The evidence was held sufficient, in this case, to show consent of partner to execution of assignment in firm name by his co-partner.
    Appeal from a judgment dismissing the complain t against one defendant, and from an order dissolving the injunction against both defendants.

      T. D. Trumbull, Jr., for app’lts; Cameron & McArthur (T.. W. McArthur, of counsel), for resp’ts.
   Pütnam, J.

Plaintiffs, claiming to have been copartners with one William H. Robinson in a business carried on at Grlens Falls, N. Y., under the firm name of the New York & Oriental Tea Company, brought this action to set aside a general assignment for the benefit of creditors executed by said Robinson in the name of said firm ; making said Robinson and the assignee, Lyman Jenkins, parties defendant. The defendant Jenkins, who alone answered, denied that the plaintiff Homer J. Martine was a member of said firm, and alleged that the assignment was executed by Robinson with the consent of the other plaintiff. The trial was before a referee, who reported in favor of the defendants, and from the judgment entered on his report the plaintiffs appeal.

The questions in the case were of fact, and a careful examination of the testimony has satisfied us that the learned referee did not err in his conclusions. The evidence was such that he could properly find that the business of the New York & Oriental Tea Company, from 1887 to the time of the assignment, was carried on by the plaintiff Godfrey and Robinson as equal copartners, and that the plaintiff Homer was not a member of said firm. It is true that there is evidence indicating that on April 12, 1887 Homer owned the stock of the goods, one-half of which was then sold to Robinson, or some interest therein. But such a sale did not make Robinson and Homer copartners. The referee doubtless replied upon the testimony of Robinson that Godfrey said that he was the owner of the stock of goods in question, and further said “he would sell one-half of the business if the references that I [Robinson] gave him were satisfactory, and we should divide the profits equally; we should be partners, and share and share alike.” That he (Robinson) did not know that Homer had any interest in the goods. The fact that Godfrey sold an undivided one-half of Homer’s goods to Robinson would not make the latter copartners, unless with the consent of both parties. The testimony of Robinson, above referred to, is contradicted by Godfrey. It was for the referee to determine between the two witnesses. He believed the statement of Robinson, and we are unable to say that he erred in so doing. Without attempting to discuss the evidence, we think all the facts and circumstances of the case tend to support the testimony of Robinson, and to show that Homer was not a member of the copartnership. The contract was made between Godfrey and Robinson while Homér was in Florida, It appears that Godfrey was authorized to manage the business for Homer. According to the testimony of Godfrey, when the sale was made to Robinson, in the spring of 1887, the name of Homer was riot mentioned. It was not stated that he was interested in the business. Nor does it appear by the evidence produced by plaintiffs that Robinson was in any manner informed that he (Homer) owned the goods purchased, or any interest therein. It is difficult to see, therefore, how, on - the testimony produced by the plaintiffs, the claim that there was a contract of copartnership between Homer and Robinson can be sustained. Robinson could not be made a partner with Homer without his consent and knowledge. The plaintiffs fail to satisfactorily show any consent on the part of Robinson to enter into any relationship with Homer., Hence, the finding of the referee was justified, not only by the evidence of Robinson, but also by that produced by plaintiffs. If Homer was, as he claimed, the owner of the goods, one-half of which was sold to Robinson April 26, 1867, and. the New York & Oriental Tea Company without due authority, appropriated and used said goods in its business, it may be that Homer has a claim against said company or its members, or one of them, on which he could maintain an action, but not this action. Hence, we find no error in the conclusion of the referee that Homer was unnecessarily made a party plaintiff.

It has long been settled that one member of a copartnership can, with the oral or written consent of the other, make a general assignment for the benefit of creditors. Welles v. March, 30 N. Y. 344; Klumpp v. Gardner, 114 N. Y. 153; 22 St. Rep. 672 ; Hooper v. Baillie, 118 N. Y. 413; 29 St. Rep. 52. We have already held, in this case, that the assignment in question was, on its face, valid, and hence that the burden 'was on plaintiffs to prove its invalidity. Sherman v. Jenkins, 53 St. Rep. 780; 24 N. Y. Supp. 186. See, also, Hooper v. Baillie, supra. The question then arises whether plaintiff succeeded, on the trial, in showing that the assignment in question was executed without the assent of the plaintiff Godfrey. The referee found “ that the said instrument was made, executed, and delivered by the .defendant, William H. Robinson, in the name of the said company, and the members thereof, by and with the consent, and upon the authority, of the plaintiff, Godfrey G. Martine.” The case of Klumpp v. Gardner, supra, holds that it is not necessary to show an express assent to the execution of a general assignment by a partner not executing it. It is sufficient if an assent may be inferred from the acts or declarations of such party. In the case cited an assent was inferred from the language of a letter written by the one not executing the assignment, in which he says, “Should you have to make an assignment, make Mrs. A. a preferred creditor,” etc. In this case, Robinson testified as follows, viz.: “I asked him if it wouldn’t be better to make an assignment than it would be to let the sheriff come in, and close up the business, and the doctor said he didn’t know but what it would; and, from that, I asked him if he couldn’t. raise a part of the money, and he said that he couldn’t. And I told him that, if I would make an assignment, for him to give me a paper to make an assignment, and he said I didn’t require any. He said I could go on, and sell out the whole business, and not ask anybody. And I told him I never heard of any two men being in partnership, and one making an assignment without a paper from the other; and he said I didn’t need a .paper, that I was general manager, done all the business, and signed all the checks, and then he said that he wasn't a partner. I think that is about all the conversation there was. This conversation took placo before'lhe assignment was "made. It wasn’t but two or three days before. It was right near the time.

This testimony, although contradicted by Godfrey R. Martine, was believed by the referee, and we cannot sav that he erred in his conclusion. It appears, therefore, that while Robinson and Godfrey were speaking of a claim they were unable to meet, and of an assignment, the latter said that the former did not require any paper to make an assignment. He could go on, and sell out the whole business, and not ask anybody. This shows an assent to the assignment in question on the part of the partner not executing it, as clearly as was shown in Klumpp v. Gardner, supra. We therefore conclude that the consent of Godfrey to the assignment was sufficiently shown. We also think it sufficiently appears that the New York & Oriental Tea Company was insolvent at the time the assignment was executed.

As, in the brief of the learned counsel for the appellants, no mention is made of the exceptions taken upok the trial to the rulings of the referee in excluding testimony, we do not deem it necessary to discuss them.

The judgment should be affirmed, with costs.

All concur. ,


text:
    In the Matter of the Application for the Probate of the Will of Gilbert Palmateer, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894)
    1. Evidence—Declarations—Wills—Undue influence.
    The declarations of a testator before execution are not admissible to show undue influence.
    2. Same.
    The mere fact that the testator resided with or near the beneficiaries does not establish undue influence on their part.
    3. Witness—Section 829.
    A person, interested in the contest of a will, cannot testify as to the conversations between the testator and another party, though he takes no pan therein.
    Appeal from a decree refusing probate of a will.

      S. G. Carpenter (A. T. Clearwater, of counsel), for app’lts; Mclorns Dayton {D. W. Ostrander, of counsel), for resp’ts.
   Mayham, P. J.

This is an appeal by the appellants, as executors and legatees named in an instrument purporting to he the last will and testament of Gilbert Palmateer, deceased, from a decree of the surrogate of Ulster county refusing to admit such instrument to probate as the will of said deceased, and directing the payment of costs of said contestants out of the estate of the deceased on the ground that Gilbert Palmateer was unduly influenced in making said will. The surrogate found and decided that the alleged testator was, at the time of making the instrument propounded as his last will, of sound mind, rational, and competent to make a will; so that the only question presented by this appeal is whether such instrument was made and procured by undue influence. The will was dated June 15, 1889, and the deceased died January 25, 1892, at the age of about 79 years. The deceased had been twice married; liis first wife dying about the year 1850, leaving four children, the fruit of such marriage, three of whom survived the testator, and one of whom died before the testator, leaving two sons, both of whom survived him. In his wall the testator bequeathed to his wife $100, the use of two rooms in his house, and of any furniture she may wish for; the same for life, in lieu of dower. To his two unmarried daughters he gave the furniture, the use of which was given to his wife for life. To two of his daughters by his first marriage and the three daughters by his second marriage lie bequeathed $100 each. To his two grandsons, sons of the deceased daughter by his first marriage, he devised two farms, to be divided between them at the majority of the youngest, and also bequeathed $100 each to said grandsons. All of the residue of his estate, real and personal, he devises and bequeaths to his two unmarried, childien'of his last wife. The testator, in his lifetime, conveyed by deed, for nominal consideration, real estate valued at $20,000 to his daughters, the larger share of whfch was conveyed to the children of his second marriage; but one of the farms, valued at about $2,000, was. conveyed to a daughter by his first marriage at about the same time he assigned securities valued at about $12,000 to his last wife and her daughters. One of the testator’s daughters by his first wife, with her husband, had had bitter and protracted litigation with the testator, and to that daughter the testator seems not to have made any advances by deed or assignment of securities, nor is she a beneficiary named in his will, and she appears as one of the contestants id the proceedings before the surrogate on the application to prove the same. The surrogate, in the examination of the question of undue influence, allowed a wide range of investigation by the evidence, showing the relations between the testator and his second wife, and her government and treatment of 'the children of the first wife, who, by the second marriage, were committed to her government and care; and that evidence disclosed in some instances treatment of severity, if not cruelty, exercised by this stepmother of these children by the former marriage. But these daughters were all married, and had left the paternal home many years before the malcing.of this will; and while such might bear in a very remote degree upon the question of undue influence, it fell far short of establishing any such control over the mind and will of the testator as to interfere with the testamentary disposition of his property, even if this evidence stood unchallenged or u ndisputed. But the proponents introduced evidence tending to show that the conduct of this stepmother was kind, affectionate, and humane towards these children. There was also evidence offered on the part of the contestants tending to show that the second wife and her children attempted by arguments, persuasions, and even threats to coerce and control the testator in the disposition of his property by his will; and, as evidence bearing upon that subject, the contestants introduced evidence of the declarations of the testator, which it is claimed tended to show that he yielded to the dictation and control of his wife and daughters, or was so far influenced by their conduct in that regard that lie did no! follow liis previously expressed wish or determination to make an equal distribution of his property between all of his children. But it is insisted on the part of the appellants that, as the testator at the time of making this will was of sound and disposing mind, and competent to make a will, as found by the surrogate, and as none of these declarations were made at the time of making of the will, and are not, therefore, a part of the res gestae, they were incompetent, and cannot be considered and treated as evidence to affect that instrument. . The declarations relied upon by the contestants cover a period of several years before the execution of the will, and, standing alone, are not enough, we think, to prove undue influence or fraud at the time of its execution. In Waterman v. Whitney, 11 N. Y. 157, Judge Sellon, after a very exhaustive review of this subject, in which he examines the authorities in England, in other states of the Union, and in this state, sums up the result of his reseaich, in this language: “These cases must, I think, be sufficient to establish the position that declarations of the testator, made cither before-or after the execution of the will, are not competent evidence to impeach its validity on the ground of fraud, duress, imposition, or other like cases.”

The learned judge, in the further discussion of this question, conceded the admissibility of the declarations of a testator where the will is attacked upon the ground of want to testamentary capacity, and shows that their admissibility on such inquiry stands upon an entirely different principle from the one sought to be applied here; and he adds: “The difference is certainly very obvious between receiving the declarations of the testator to prove a distinct external fact, such a duress or fraud, for instance, and as evidence merely of the mental condition of the testator. . In the former case it is mere hearsay, and liable to the objection to which mere declarations of a third party'are subject; while in the latter it is .the most direct and appropriate species of evidence.”

Considered, therefore, as evidence upon the question of mental competency, this evidence was proper. But, after hearing this evidence, the learned surrogate held that the testator was of sound and disposing mind and memory, and competent to make a will. Within the light of these authorities, we cannot consider the declarations of the testator upon the question of fraud, duress, imposition, or other like causes; and, with this evidence excluded from consideration, the finding of the learned surrogate in his fourth and fifth findings, of fraud, circumvention, deceit, and evil practices, by which the natural affections of the testator for the contestants were alienated, and the will was procured to be executed by Hannah Palmateer, Martha Palmateer, Maggie E. Palmateer, Mary T. Koons, and Alphonzo J. Koons, is not sustained. Úor do we think the fact that the testator resided with, or in close proximity to, the .persons last named, some of whom were the principal beneficiaries in his will, a circumstance sufficient in itself, under the evidence in this case, to justify the conclusion that the will was the result of undue influence. The will was not drawn by either of the beneficiaries. Nor docs the evidence disclose that they, or either of them gave any instruction or direction to the draughtsman of the same. On the contrary, the draughtsman testified that no one talked with him about the will, except the testator, who alone was with him when the instructions were given, and the will was drawn. This evidence is not contradicted or questioned. The testimony of the draughtsman, who is a reputable lawyer, on the subject of the drawing and execution of this will, is as follows: “Q. State, when you went to draw the will of Mr. Palmateer, just what took place. A. I went in the sitting room, and he told me how he wanted the will, and I got it up. He told me himself. We were alone in the room, and the other witnesses did not come in until it was completed. He told me what to write, and what he wanted. I drew it in that manner, and when it was complete called in the other witnesses. No one else gave me any directions in addition to him. There was no one in the room at the time it was drawn, except perhaps members of the family, who came in and went right out, but did not say anything to us. He signed his name opposite the seal at the end of the will. I asked him, in the presence of this other witness, if he acknowledged this to be his signature,—I always do this,—if he declared this to be his last will and testament;" and he said, ‘Yes;’ if he requested Mr. Edward L. Tompkins and myself to sign as witnesses, and he said, ‘Yes.’ After lie signed his name, we signed our names, in the presence of him, and in the presence of each other, as witnesses to the will. I saw him sign the will, and I saw the other witnesses sign the will. I read the will over to him after I drew it. He said it was all right after I read it over. I do not remember whether I drew more than one copy, but he knew the contents of it, and he urns satisfied. Before the witness came in he knew all the provisions. He was over twenty-one years of age. I have known him for about thirty-two or thirty-three years.”

This evidence, it seems to us, falls far short of establishing undue influence. If we assume that the evidence in this case was such as to shift the burden of proving the absence of undue influence upon the proponents, instead of requiring the contestants who assert undue influence to prove it, still the evidence of the circumstances of its preparation and execution would establish such absence. But in this case we see nothing in the evidence calculated to shift the burden from the contestants to the proponents.

In Re Martin, 98 N. Y. 196, Danforth, J., after stating the circumstances attending the execution of the will of the testator, uses this language: “The case, then, is one where the testatrix had testamentary capacity, a present knowledge of the contents of the. will, and where at its execution she was surrounded by all the guards which the statute has prescribed to prevent fraud and imposition. A will executed under these circumstances can be avoided only by influence amounting to force or coercion. The burden of proving it is on the party who makes the allegation. These principles are well settled.” Citing Tyler v. Gardiner, 35 N. Y. 559; Cudney v. Cudney, 68 N. Y. 148.

Such undue influence or restraint must be a present restraint, operating upon the testator at the time of making the will, dominating the will and judgment of the testator, and coercing and controlling his action. McMahon v. Ryan, 20 Pa. St. 329 ; Eckert v. Flowry, 43 Pa. St. 46-51.

In re Snelling, 136 N. Y. 517; 49 St. Rep. 695; O’Brien, J„ says: “ So long as her mental powers enabled her to understand and appreciate the amount and condition of her property, and to comprehend the nature and consequences of her act in executing the will, she was at liberty to dispose of her own in such manner as seemed best to her, providing the disposition was her own free act. What the law terms ‘ undue influence ’ is not established by proof tending to show that the testator acted from motives of affection or gratitude, though the objects of her bounty were strangers to her blood. The influence or moral coercion, or by whatever other term designated, must be such as to overpower the will of the testator, and subject it to the will of and control of another, in which case it assumes a character of fraud.

Horn v. Pullman, 72 N. Y. 276; Clapp v. Fullerton, 84 N. Y. 190; Hollis v. Drew Theo. Seminary, 95 N. Y. 166; Marx v. Mc Glynn, 88 N. Y. 370.

Starting, therefore, as we do, with the fact established that the testator was, at the time of the execution of this will, of sound and disposing mind, and competent to make a testamentary disposition of his property, we think that the learned surrogate erred in finding apd deciding that the will was the result of fraud "or undue influence, and in refusing to admit the same to probate. We think that the surrogate erred also in the admission of evidence of a conversation between the testator and his wife, in the presence of one of the daughters, who was interested in the event of this contest, given by the daughter under proponents’ objection that it was not admissible, under § 829 of the Code of Civil Procedure. The daughter, who was interested in the event, was permitted to give statements made by her father to her mother, bearing upon the questions involved in this controversy. Sucli evidence has been held inadmissible. In re Will of Eysaman, 113 N. Y. 62; 22 St. Rep. 136, it was held that a person interested in the estate could not testify to a conversation between the testator and another, in which the witness took no part. It is true that the court will not review for such error unless the court can see that the party was injured by its reception. Code, § 2545. But, if the evidence offered was illegal, it seems to have been upon the relations between the testator and'his second wife, bearing upon the question of undue influence, and was therefore, material, and its erroneous reception injurious to the appellants. The decree of the surrogate must be reversed, with costs to the appellants of this appeal, to be paid out of the estate; and, as the determination involves questions of fact, and the «appeal was taken from a decree made oh a petition to prove a will, an order must be made directing a trial by jury of the material questions of fact arising upon the issue between the parties, under § 2588 of the Code of Civil Procedure.

Putnam, J., concurs; Herrick, J., concurs in result.


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    In the Matter of the Application by Solomon W. Russell, Jr., as Administrator, etc., for the Discovery of Assets Belonging to the Estate of Robert Stewart, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Executors—Discovery of decedent’s property.
    A proceeding to discover property of decedent is not intended to collect debts.

      Appeal from a decision and decree in favor of petitioner.

      Frederick Fraser, for app’lt; Abner Robertson, for resp’t.
   Putnam, J.

This is an appeal from an order made by the surrogate of Washington county in a proceeding instituted by Soloman W. Russell, Jr., as administrator, etc., of Robert Stewart, deceased, under the provisions of §§ 2707-2709 of the Code of Civil Procedure, to discover property of the'said deceased. It appears that, shortly before the death of said Stewart, he delivered to the appellant, Slocum W. Lake, $57.92, with directions to use the same in payment of his, (Stewart's) debts, and for suitable clothing and bedding for laying out the remains of said deceased; that Lake paid out all of said sum, as directed, but that $22.92 thereof was so paid after the death of said Stewart. The appellant, in his answer to the petition, alleged that he received said $57.92 from deceased, and had paid out the same pursuant to his directions. He did not allege that he was the owner of said $22.92, or entitled to the possession thereof by virtue of a lien thereon, or special property therein (Code Civ. Proc. § 2709), but alleged that he had no property of deceased^ in his possession, and did not withhold any such property from the petitioner. The surrogate held that the payment by Lake of said sum of $22.92 after the death of Stewart was unauthorized and wrongful; and as appellant, in his answer, had not claimed to be the owner, or entitled to the possession, thereof, that the surrogate was authorized, under the above-cited provisions of the Code of Civil Procedure, to direct the payment by said' Lake of said sum to the administrator. We are unable to agree with the conclusion reached by the learned surrogate. The sections of the Code of Civil Procedure above referred to are intended to authorize a summary mode of discovering and reaching property of a deceased party in the hands of third persons. They are not intended to create a procedure to collect debts. Section 2709 provides that: “Where it appears to the surrogate t * that there is reason to suspect that property of the decedent is withheld or concealed by the person cited, he must * * * make a decree reciting the ground of making it, and requiring the person cited to deliver possession of the property to the petitioner. The decree must specify the sum of money or describe the other property.”

The evidence in this case shows that appellant, when this proceeding was instituted, had no property or money of deceased in his possession. The $22.92 had (probably wrongfully) been paid out as directed by deceased, although after his death. The appellant then owed the said sum of $22.92 to the administrator, and, in a proper action, could have been made liable therefor. The claim of the administrator for said sum was for a debt of ap-, pellant to the estate. If the respondent was entitled to any order under § 2709, supra, it was rather against the parties to whom the money received from deceased liad been wrongfully paid by Lake, than against the latter. In re Cunard, 27 St. Rep. 128 ; 7 N. Y. Supp. 553, it was held that the object of the statute was to provide a summary means of discovery, and, in case of a mere naked possession of decedent’s “money or other personal property,” to compel delivery to the legal representative. In the case of money, it must be a specific sum tortiously withheld,-—-not merely money due and belonging to the deceased, in the sense of an indebtedness. When this proceeding was begun, as above stated, appellant had, pursuant to the direction of the deceased, but after his death, paid out the money in question. It was not in- his hands. In consequence of such payment, he became a debtor of the estate for the amount so paid out. The sum could have been collected of him by action. See In re Nay, 19 St. Rep. 259 ; In re Knittel, 5 Dem. Sur. 371; 7 St. Rep. 752. We think, therefore, that the order of the surrogate should be reversed, with costs, and the proceeding dismissed.

All concur.


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    In the Matter of the Application by Elizabeth Winegard for Writ of Certiorari to Review a Tax Assessment, etc.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Taxes—Certiorari.
    On certiorari to review an assessment, a return of a copy of the assessment roll is sufficient, after the original roll has been deposited with the town clerk.
    2. Same—Parties.
    The town clerk is not a necessary party to such certiorari.

    8. Same—Objections.
    Nor can objections, which were not presented to the assessors on grievance day, be afterwards raised on certiorari.

    Appeal from an order granting a writ of certiorari and denying a motion to set aside and vacate the same.

      W. 0. Lamont, for app’lts; J. B. Holmes, for resp'fc.
   Putnam, J.

This is an appeal from an order denying defendants’ motion to set aside a writ of certiorari granted in this proceeding. Petitioner, a resident of the town of Seward, U. Y., on the 16th day of August, 1892, appeared before the board of assessors of said town, and asked that an assessment against her of $5,000 on personal property be stricken from the assessment roll on the ground that she had no personal property liable to be assessed. The learned counsellor for the appellants suggests that the writ sought to be vacated was not authorized by § 3 of chap. 269 of the Laws of 1880, as it directed the return of the original assessment roll and papers, which prior to the making of the order for the issuance of said writ, had been filed with the town clerk of said town. We are of opinion that this position is not well taken. It was immaterial whether the writ commanded the assessors to return the original assessment roll and papers or copies thereof, inasmuch as in either case, under § 3 of the act referred to, a return of copies of said papers would constitute a compliance with the provisions of such order. Under the said section a direction of the court to the assessors to return the assessment roll and other papers should be deemed to mean the said assessment roll and papers or copies thereof. Hence, under the order or writ sought to be vacated, had the assessors returned copies of the papers mentioned in said order, they would, under the statute, have obeyed the mandate of the court. It is also claimed that the town clerk should have been made a party to the proceeding, as the original assessment roll and papers.in question were, when the order was granted, in his possession. Inasmuch, however, as the assessors were only compelled to return copies of the papers in possession of the town clerk, we are unable to see the necessity of making that officer a party to the proceeding. That it is not necessary, in such a case, to make the town clerk a party, has been decided in People ex rel. W. S. R. R. Co. v. Pitman, 9 St. Rep. 469. We concur in the views stated in the opinion of Haight, J., in that case.

Appellants also contend that the writ improperly directed the assessors to make return as to the matters not raised before them on “ grievance day,” viz.: It commanded them to return a statement of the value of the real estate assessed on said roll, the total assessed value thereof, the total assessed value of the personal property assessed on the roll; and also to return whether or not the real or personal property, or either, appearing on said roll was assessed at its full and true value, at which it would be appraised in payment of a just debt due from a solvent debtor, or at a percentage of such value; and, if at a percentage, the rate per cent, that the real and personal were assessed of their true value.” Thus bringing up for review the question whether the assessment against petitioner was unequal, although such claim was not made by her before the assessors on “grievance day,” the only claim then being made that she had no personal property subject to taxation. We are of opinion that the original order should have only directed a return by the assessors of papers and facts necessary to enable the court to review the decision of the assessors on questions raised before them at the time appointed for hearing parties claiming themselves aggrieved. It lias been held that chapter 269 of the Laws of 1880, giving a remedy by certiorari to correct an illegal or excessive assessment, does not apply to a complaining party who has omitted to avail himself of the opportunity provided by statute to remed\r his grievance. People ex rel. Mut. U. Tel. Co. v. Tax Comr's, 99 N. Y. 254; People ex rel. W. S. R. R. Co. v. Adams, 125 N. Y. 471-484; 36 St. Rep. 166; People ex rel. Corwin v. Assessors of City of Middletown, 46 St. Rep. 148; 19 N. Y. Supp. 142, The relator in this case appeared before the town assessors on “grievance day,” and objected to the assessment on the sole ground that she had no personal property subject to assessment. She made no complaint on the ground that the assessment was unequal, or otherwise unauthorized. Can she now raise questions which she did not attempt to raise before the assessors ? We think not. The certiorari authorized by chapter 269, Laws 1880, provides a mode of reviewing the action of the assessors. It was intended to authorize the court to review the decision of the assessors, but, as the authorities above cited show, only such decisions as are made on “ grievance day.” Objections not raised before the assessors on that day cannot be deemed passed upon by them, and hence cannot be considered on certiorari. The proceeding before the assessors on the day appointed for hearing grievances may be deemed a species of trial. The party complaining states his case and offer his evidence, and the assessors pass on the questions raised by his objections; and that decision, whichever way it is, the complaining party may review by certiorari. If one objecting to an assessment must appear before the assessors on the day^ appointed for him to state Ins grievances, it follows that he should then state all the objections he desired to make, and obtain the decision of the assessors thereon. . If a party, having special complaints to an assessment, omits to state but one of them to the assessors, he fails to obtain their decision as to the objections not stated, and cannot raise such objections for the first time bn certiorari. Complaints not made before the assessors on ‘‘grievance day" should be deemed waived. In Hilton v. Fonda, 86 N. Y. 340, the assessors were sued for assessing certain real estate of the plaintiff, a nonresident, to him personally, instead of assessing it as nonresident real estate, and thus acting without jurisdiction. Plaintiff's agent had appeared before the assessors, and objected to the amount of the assessment, but not that _ it was illegally assessed to the plaintiff personally. It was held that the petitioner’s objection to the jurisdiction of the assessors was waived. So, here, we think, the objection that the tax was unequal, not having been taken by the relator before the assessor, must be deemed waived. The petition on which the order for the writ was granted showed that the only grievance started by the relator to the appellants on “grievance day” was that she had no personal property liable to taxation. It has been held that a writ of certiorari issued under chapter 290 of the Laws of 1880 may be amended. People ex rel. N. Y. C. & H. R. R. Co. v. Cook, 62 Hun, 303 ; 42 St. Rep. 245 ; People ex rel. Herkimer & M. R. R. Co. v. Assessors of Town of Herkimer, 6 Civ. Proc. R. 297. For the reasons stated we think that the writ should not have directed the appellants to make in their return a “ statement of the value of the real estate assessed on said roll, the total assessed value thereof, the total assessed value of the personal property assessed on the roll, and also to return whether or not the real and personal property, or either, appearing on said roll, was assessed at its full and true value, at which it would bo appraised in payment for a just debt due from a solvent debtor, or at a percentage of such value, and, if ata percentage, the rate per cent, that the real and personal were assessed of their true value.” This clause was probably inadvertently inserted in the order. The order from which the appeal is taken should be modified so as to direct the original order and writ to be modified by striking out the clause above quoted, and, as so modified, affirmed, without costs to either party in this court or in the court below.

Herrick, J., concurs; Mayham, P. J., not acting.


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    John C. Miller, Resp’t, v. City of Amsterdam, App’lt. Mary C. Smith, Resp’t, v. City of Amsterdam, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Municipal corporation—Streets—Assessment.
    A street assessment is void, where the petition is not signed by the owners of a majority of the lineal frontage of the street.
    Appeal from a judgment in favor of plaintiff in each case.

      Edviard P. White, for app’lt; Westbrook & Borst (H. V. Borst, of counsel), for resp’ts.
   Putnam, J.

I have looked o.ver these cases, and it seems tome that it is unnecessary to write an opinion. The conclusion of the referee that a majority of the taxpayers on the street did not sign the petition seems sustained by the evidence, and, in the absence of the signatures of such majority, the defendant’s trustees had no power to act. I do not think that defendant’s trustees could obtain jurisdiction by an erroneous finding of a fact necessary to confer jurisdiction. See Jex v. Mayor, 103 N. Y. 536-539 ; 3 St. Rep. 657; Cagwin v. Town of Hancock, 84 N. Y. 532 ; Lathrop v. City of Buffalo, 3 Abb. Dec. 30 ; Tingue v. Village of Port Chester, 101 N. Y. 294; 1 St. Rep. 9. All concur.