text:
    James Silvey v. William W. Lindsey et al.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)
    Election law — Residence — Eight to vote — Inmates of asylums, etc.
    Where a party being a resident of the city of New York, and a legally qualified elector, removed from there and became an inmate of the New York State Soldiers and Sailors’ Home, intending to change his residence from New York city, and to become a resident of the election district within which sucli home is situated, he becomes a resident of that place, and an elector in it after a residence of the length required by the Constitution.
    2. Same — What required by the constitution — New Yobk constitution, akt., 2, § 1.
    The State Constitution provides, article 2, § 1, “Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days and an inhabitant of this State one year, next preceding an election, and for the last four months a resident of the county, and for the last thirty days a residence of the election district in which he may offer his vote, shall be entitled to vote at such election in the elect’on district of which he shall at the time be a resident and not elsewhere, for all officers that now are or hereafter may be elective by the people.
    3. Same — New York constitution, art., 1, § 3.
    The State Constitution provides, art., 1, § 3, “ Eor the purpose of voting, no person shall be deemed to have gained or lost a residence,”.“ nor while kept at any almshouse, or other asylum, at public expense.” Held, that assuming the institution in question to be an asylum of the character referred to in this paragraph, the clause did not prohibit an inmate from acquiring a residence in the election district in which the institution was situated.
    4. Residence — What necessary to constitute.
    A place of residence, in the common law acceptation of the term, means a fixed and permanent abode and dwelling-place for the time being as distinguished from a mere temporary place of sojourn.
    A ease submitted upon an agreed state of facts under section 1279 of the Code.
    In 1886, the plaintiff was an inmate of the “ New York State Soldiers and Sailors Home,” located in the town of Bath, in the county of Steuben, organized and maintained under the provisions of chap. '48 of the laws of 1878. The defendants were justices of the peace of said town and presided at the annual town meeting held for that year. The plaintiff, claiming to be a resident of the town, offered his vote to the town officers which was rejected by the defendants upon the sole ground that he was not a resident of the town. The case states that the defendants wilfully and maliciously refused to receive the plaintiff’s vote, with full knowledge of all the facts set forth in the case bearing upon the plaintiff’s right to vote. It was stipulated, that if it should be held by the court that the plaintiff was a qualified voter at that election then the plaintiff’s damages were fifty dollars, for which sum he was entitled to judgment.

      Miller $ Nichols, for the plaintiff; J. F. Parkhurst, for the defendants.
   Barker, J.

The legal question submitted for our determination is stated in the case as follows: Did James Silvey gain a residence in the town of Bath, so as to entitle him to vote at a town meeting, by reason of his presence as an inmate of said institution.

The admitted facts upon which the plaintiff based his right to vote as a qualified elector of the town of Bath, are that he was a soldier in the service of the United States during the late rebellion and was entitled to admission as an inmate into the institution known as the “ Nerv York State Soldiers and Sailors Home,” located in the town of Bath, as provided in chap. 48, of the Laws of 1878, and the rules and regulations adopted by the board of trustees having the control of the said institution. At the time he became an inmate of the home, in the year 1880, he was a resident of the city of New York where he was a qualified elector. Since he became an inmate of the asylum he has resided there continuously, and during all that time voted at every State election and town meeting, held in the town of Bath up to the time his vote was rejected by the defendants. It does not appear from the case that the plaintiff was ever married, or that he ’was at any time a householder, or engaged or interested ih any business. He was not a pensioner under the laws of the United States and was supported by the home wholly at public expense. As to Ills intention to change his place of residence, from the city of New York to the town of Bath, the fact is stated in the case in these words, “ in becoming an inmate of said institution, said Silvey, intended to change his residence from the city of New York to the Fifth election district of the town of Bath, and to make his residence in said institution so long as he should be permitted to remain there as snob inmate.” At the polls and upon oath he stated to the defendants as follows: “ I reside in the town of Bath for the reason that I was admitted an inmate of the New York Soldiers and Sailors’ Home, in this town, by the authorities thereof, in the year 1880, and have remained such inmate from that time to the present, with the intention at all times of making my residence in said institution, so long as I shall be permitted, to remain such inmate. At the time of my admission to said institution I was an honorably discharged soldier of the United States, and a resident and a voter of the city of New York: I therefore answer that I am a resident of the town of Bath. In becoming an inmate of said institution, I intended to change my residence from the city of New York to the Fifth election district of the town of Bath.” It was stipulated that every statement of fact made by the plaintiff as contained in his evidence was true.

It thus appears that the plaintiff on entering the institution abandoned his residence in the city of New York and intended to make the town of Bath his future residence permanently, or for an indefinite period of time. He thus became a resident of the latter place and a qualified elector therein, unless by reason of some positive law, constitutional or statutory, he was disqualified from becoming a resident of that town by reason of being an inmate in that institution maintained at public expense. He voluntarily, for the purpose of securing to himself more of the comforts of- life, accepted the benefactions gratuitously offered by the State to discharged soldiers in need of a home in consequence of physical disability or other cause. Thereafter that institution was his house, his home, his fireside, his bed, his board. He had no family with which to reside or support, and had no business relations elsewhere. Nothing remained with which he was connected in the least degree in the city of New York indicating that he remained a resident there.

The qualification of voters at all general elections held in the State, are defined by the constitution as follows: “ Every male citizen óf the age of twenty-one years, who shall have been a citizen for ten days and an inhabitant of this State one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such elections in the election district of winch he shall at the time be a resident, and not elsewhere.” — Article 2, section 1. To become a legal voter at the town meeting the same qualifications are required and none other. — 1 R. S., page 108, Sec. 1, 7th Ed. The only restraint or regulation placed upon a citizen in changing his place of residence from one place to another within the State is contained in Art. 2, Sec. 8, of the constitution which declares, “ For the purpose of voting, no “ person shall be deemed to have gained or lost a residence, by reason of bis presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this State, or of the United States, or of the high seas; nor while a student of any seminary of learning ; nor while kept ab any almshouse, or other asylum at public expense; nor while confined in any public prison.”

The defendants contend that while the plaintiff was an inmate of the Soldiers and Sailors Home and supported at public expense he was prohibited from acquiring and could not gain a residence, in the town of Bath. It may be conceded in disposing of this case that this institution is an asylum of the class and character of those referred to in this paragraph of the Constitution. But we do not hold that it is, and many reasons may be given why it should not be so considered. A student in college, a soldier in the United States service and a voluntary inmate of a charitable institution, the recipient of a public gratuity, may change his place of residence like any other citizen, by doing those things which the law requires of all persons who intend to change their residence from one place to another within the State. The clause of the Consitution quoted contains no prohibitory provisions. It simply declares that, for the purpose of voting, no person shall be deemed to have gained a residence by reason of his presence in a particular place while a student of any seminary of learning or in the other cases mentioned therein. But a person who is a student in a college - may change his residence from place to place while in attendance upon the college, just the same as any other citizen. These views have been maintained.and expressed by the law department of the State relative to the status of the inmates of this institution and their qualifications as voters in the town of Bath.

The defendants also contend that, as the plaintiff only intended to reside in the town of Bath so long as he should remain an inmate in the soldier’s home, he could not gain a residence by the rules of the common law. As he intended to abandon his former place of residence he could acquire one in the town of Bath if his purpose was to remain there for a period of time although indefinite as to its duration. He was a citizen of the State, under no disqualifications prohibiting Mm from becoming a resident of any place which he might determine upon. It was not necessary that he should have had the fixed purpose of residing permanently in the town of Bath. A citizen of the State must, of necessity, have at all times a place of residence therein. It may be for a long or a short period of time in any particular place. For the purpose of securing the right to vote in any particular town his residence therein must be for the length of time required by the election law. But he becomes a resident of tbe place tbe instant he arrives within tbe limits of a town with the intention of making it bis future home and residence permanently or for an indefinite length of time. A place of residence, in tbe common law acceptation of tbe term, means a fixed and permanent abode and dwelling-place for the time being as contradistinguished from a mere temporary local residence. The fact is admitted that tbe plaintiff bad determined to remain in the town of Bath for an indefinite time.' By tbe American authorities a residence may be acquired in a particular place where it is tbe intention of tbe person to remain therein for an indefinite period of time. It is not necessary that be should have tbe purpose to remain there permanently, that is to say, never to remove therefrom. There must be both tbe fact of the abode and tbe intention of remaining there indefinitely, to constitute a domicile or a residence. Hegeman v. Fox, 31 Barb., 475; In the Matter of Wrigley, 8 Wend., 141; Chaine v. Willson, 1 Bos, 673; Dupuy v. Wurtz, 53 N. Y., 556.

In Massachusetts the courts have repeatedly held, that where there is an intention on the part of a citizen of that State, to abandon his then present place of residence, and then remove to another town with an intention to remain there for an indefinite length of time, he becomes a resident of the latter place. Commonwealth v. Cushing, 99 Mass., 592; Whitney v. Sherborn 12 Allen, 111; Mead v. Roxborough, 11 Cush., 362; Carnoe v. Freetown, 9 Cray, 357; Harvard College, v. Gore, 5 Pick., 379.

Webster defines a resident to be one who resides or dwells in a place for some time; and a residence as being the place where one resides ; an abode ; a dwelling; a habitation.

It is clear to my mind that the plaintiff was, within the sense or meaning of the election laws, a resident of the town of Bath. He had no residence elsewhere. It is not to be supposed that the legislature intended to deprive the inmate of that institution of any of the privileges of citizenship. A person may be an inmate of that institution and maintain his residence elsewhere, and I suppose there are many such instances. A person may become an inmate of this institution with an expectation on his part to remain so long as his wants and means require, and have a family and a residence elsewhere.

The plaintiff is entitled to a judgment for fifty dollars damages with costs as agreed upon in the case submitted All concur.


source: Caselaw Access Project

author: Barker, J.

license: Public Domain

text:
    George M. Collins, et al., Resp’t v. Geo. H. Harris, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)
    1. Arrest — Judgment — Effect of offer and acceptance of.
    The complaint alleged that the plaintiffs delivered to the defendant a certain quantity of cheese for him to sell on their account, and that he after-wards sold the same and received the pay therefor, which he refused to pay over upon demand; the defendant appeared and putin an answer which contained among other things a general denial, thereafter he offered the plaintiffs to take judgment against him, for a sum greater than the demand of the complaint together with costs which the plaintiffs accepted in writing, the plaintiffs then procured an order of arrest. Held, that the offer and acceptance of judgment disposed of the issues joined under the pleadings and the case then stood as if they had been tried with a general verdict rendered in the plaintiff’s favor for the same sum.
    .2. Same — Order of arrest.'

      Held, that if the plaintiffs at the time of the commencement of the action had a right to an order of arrest upon the facts of the case, it was not superseded by an acceptance of the offer of judgment.
    :3. Same — Circumstances constituting a case therefor — Code Civ. Pro. § 550, sub. 3.
    This was clearly an action on contract, and as the money received by the defendant for the plaintiffs was received by him in a fiduciary capacity, he was for that reason subject to an arrest as provided in Code Civil Prbeedure, § 550, subdivision 3.
    . -4. Same — Liability of defendant restricted to moneys received.
    It appeared that the defendant shipped the cheese for sale, to a New York house, they acting as his agents and in ignorance of the fact that he was not the owner: Held, that the defendant was made liable to an arrest in an action for the money which he actually received derived from the sale but not for the goods sold for which he never received pay.
    :5. Same — Payment — Pacts not constituting.
    The property belonging to the plaintiff, being sold by the New York firm, the debt was due to them, but they being ignorant of the fact and dealing with the defendant as a principal, could discharge their liability by payment to him. But they being debtors of the defendant could not relieve themselves by crediting the defendant with the sum received upon their books.
    16. Same — Admission.

      Held, that in view of the allegations of the complaint and the nature of the transaction, the offer of judgment by the defendant was a tacit admission on his part that he had in fact sold all the goods and had received in some form a sum of money equal to the sum mentioned in the offer of judgment which became due from him to the plaintiffs.
    An Appeal from an order made by tbe County Judge of Steuben county refusing to set aside an order previously made by .him for the arrest of the defendant.

      Armstrong Todd, for Appl’t; Beard <f* Grriffin, for Resp’ts.
   Barker, J.

The action is for money had and received by the defendant to and for the use of plaintiffs. The complaint alleges that the plaintiffs delivered to the defendant a certain quantity of cheese for him to sell on their account; .and that he afterwards sold the same for the sum of $800 and received the pay therefor which he refused to pay over upon demand. The defendant appeared and put in an answer which contained, among other things, a general denial. Thereafter he offered to allow the plaintiffs to 'take judgment against him, for the sum of $841.55 with costs, which the plaintiffs accepted in writing. The plaintiffs then applied for and procured from the County Judge an order of arrest. The defendant moved, before the County Judge, who granted the order, to vacate the same upon the same papers upon which it was procured, which motion was denied. The offer of judgment and its acceptance disposed of the issues joined under the pleadings and the case then stood as if they had been tried with a general verdict rendered in the plaintiff’s favor for the same sum.

If the plaintiffs, at the time of the commencement of this action, had a right to an order of arrest upon the facts of the case, it was not superseded by an acceptance of the offer of judgment. This is clearly an action upon contract. The complaint alleges an agreement on the part of the defendant and avers a breach of his promise as therein set forth. The money received by the defendant was the money of the plaintiffs and as he acted in a fiduciary capacity he was for that reason subject to an arrest, as provided in subdivision 3, sec. 550, of the Code of Civil Procedure. The neglect and refusal to pay over the money when demanded did not make him a tort-feasor. An agent or a person acting in any other fiduciary capacity, is not subject to an action of tort, for the mere omission to pay over money which he may have collected on account of his principal; but he is liable in an action in form ex delicto, for acts of misfeasance which may result in an injury to the persons he represents. Segelken v. Meyer, 94 N. Y., 484.

The question before us is, did the affidavits and papers disclose a case subjecting the defendant to an arrest. That he acted as the agent of the plaintiffs and received their money and neglected to pay over the same on proper demand is fairly established. The affidavit of Collins, one of the plaintiffs, read on procuring the order, is direct and positive, and states, that on the fifth of September, 1884, the plaintiffs employed the defendant to sell on commission 4262 pounds of cheese, the property of the plaintiffs, and thereupon they delivered the same to him for that purpose, and that such cheese is the same cheese mentioned in the deposition of John Dougherty, winch was also read to the officer. The same affiant, upon his information and belief, further stated, that the defendant, in the month of September, 1885, sold the cheese for the sum of $341.93 which sum the said defendant received. The cheese in question was shipped by the defendant to the firm of Shields & Dougherty, commission merchants in the city of New York, who received and sold the same and paid over to the defendant $300 by paying 'liis draft on them for tbat amount. There is nothing in the papers indicating that the defendant became the plaintiff’s agent for the sole and only purpose of shipping the goods to the New York house, the latter to act as the plaintiff’s agent, in making a sale. The affidavits fairly establish, that the defendant made the New York parties his own agents and that they were ignorant of the fact that he was not the real owner of the goods. The defendant was made liable to an arrest in an action for the money which he actually received, derived from a sale of the goods, but not for the goods sold for which he never received pay.

It is insisted by the defendant that the offer of judgment embraced an item of 141.93, being for a balance due from Shields & Dougherty which was never received by him in any form. If this be so, then the plaintiffs were not entitled to an order of arrest for the reason that the defendant is subject to arrest in this action only for money actually received. Mr. Collins’ affidavit as to the amount received by the defendant for goods sold being on information and belief proves nothing, standing alone. The other proofs on the subject are found in the deposition of Mr. Dougherty, a member of the firm of Shields & Dougherty, who says that his house had paid to the defendant on his draft drawn on them for the sum of three hundred dollars, he 'also states that after the sale of the cheese and on or about the 20th of September, 1884, that Ms firm rendered an account of the sales to the defendant for the cheese and thereafter accounted to him for the balance due on account of the shipment of cheese; that the defendant had an account with the firm and they gave -him credit for the balance of $41.93. We think that this affidavit, unaided by the defendant’s tacit admission, contained in Ms offer of judgment, does prove that the balance of the sales, to wit, $41.93, was paid directly or indirectly to the defendant. The property received by the New York house was the plaintiff’s property. The debt due from them .on making a sale of the cheese was due and owing to the plaintiffs. Until those parties in fact paid to the defendant in some form ail the jiroceeds of the sale, the plaintiffs could claim that payment should be made to them. But Shields & Dougherty could discharge their liability by making payment to the defendant as them principal, they being ignorant of the fact that he was the plaintiffs’ agent in dealing with the goods. Nichols v. Martin 35 Hun, 168.

We do not learn from Mr. Dougherty’s deposition the state of the account with the defendant when he was credited on their books with a balance of $41.93. If they were the defendant’s debtor at that time it would not be a payment within any view which can be taken of the transaction and they would be liable to the plaintiffs for such balance. Without some evidence on the subject we cannot say that the defendant has directly or indirectly received pay for the balance mentioned. The cause of action as set out in the complaint was based upon the alleged fact that the defendant had sold all the goods delivered to him and received pay in full therefor. We think that the offer of judgment made by the defendant, in view of the allegations in the complaint and the nature of the transaction, was a tacit admission on Ms part that he had in fact sold all the goods and had received in some form a sum of money equal to the sum mentioned in the offer of judgment which became due from him to the plaintiffs. This offer was before the County Judge who granted the order of arrest together with the complaint and they constituted a part of the papers and proofs on wMch he acted. From all the proofs the facts seems to be fairly established, that the defendants had received the sum of money for wMch the plaintiffs are at liberty to enter judgment. It will not embrace any item of indebtedness for which the defendant is not subject to an order of arrest on a body execution.

After giving attention to the other points made by the appellant and consulting all the authorities cited by counsel we fail to discover any view wMch can be taken of the case different from those already indicated.

The order should be affirmed with ten dollars costs and disbursements.

All concur.


text:
    Omar Smith, Resp’t, v. John B. Clark, as trustee of School district, No. 3, Town of Starkey, Yates Co., Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)
    1. VERDICT RENDERED UPON CONFLICTING- EVIDENCE — WILL NOT BE DISTURBED ON APPEAL.
    Where the jury have rendered a verdict upon conflicting evidence, an appellate court will not interfere with their determination.
    2. Building contract — When recovery may be had upon.
    Where in a building contract performance is made a condition of payment, performance must be shown to entitle a party to recover.
    3. Same — Partial recovery.
    But when the builder has in good faith intended to and has substantially complied with the contract, althougli there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price less the damage on account of such defects.
    AN Appeal from a judgment entered upon a verdict rendered at the Yates county circuit, and from an order of the trial judge denying the defendant’s motion for a new trial, founded upon the minutes. The action is upon an oral contract, entered into between the parties by which the plaintiff agreed to construct a school-house, of wood material, laid upon a stone foundation, for tbe gross sum of $494. Specifications were prepared to which reference was made in the oral contract, and the same were presented and identified upon the .trial, and are set out in the case in full. The plaintiff was to be allowed for extras, such as might be ordered for the defendant.
    The defense interposed was non-performance; that the material was defective and not in compliance with the specifications, and the workmanship was inferior and not up to the standard agreed upon. The plaintiff gave proof, tending to show that extras were ordered of the value of $25. The verdict was for $469.

      Briggs & Baker, for the appl’t; M. A. Leary, for the resp’t.
   Barker, J.

The evidence tended to show that the mechanical work was well and properly done, and in full compliance with the contract and specifications. The proof is not all one way on this subject; on the contrary, it is highly contradictory. If the jury had adopted the defendant’s evidence on this question as the most reliable and wholly discarded the plaintiff’s proof as unworthy of credence, they would have been justified in finding a verdict for the defendant upon the ground that the workmanship was defective, and that the same ran all through the building, from the foundation to the roof boards. But after examining all the evidence relative to the character of the mechanical work, it is such as to justify the jury in reaching the conclusion that the plaintiff had performed his agreement in this respect. It is quite unnecessary to refer to the items of evidence produced by the plaintiff on his issue. The plaintiff himself and the workmen who did the labor, are very positive in their statements as to the character of the work mentioned, however strongly it may be condemned as being rough and defective in many respects by the defendant’s witnesses. It is a case of conflict of evidence which the jury have disposed of, and this court cannot interfere with their determination.

The other objections relate to the kind and quality of the material used, some of which is different in kind from that mentioned in the contract and specifications. They required the over-head ceiling in the main room of the building to be of “ second-class pine.” The plaintiff substituted in its place basswood. The plaintiff claims that the trustee for the district, and the members of the advisory committee, consented to the change, and allowed the use of basswood in place of the pine. Upon this question, the proofs were again contradictory. The plaintiff himself as a witness states in quite positive terms that it was agreed that the change might be made. Mr. Woodward, the carpenter, who worked upon the building, sustains the plaintiff’s statement. The finding of the jury on this issue should not be disturbed.

The contract required the floor to be laid with good, sound liard-wood, planed and matched, not less than one inch thick, nor over five inches wide. The defendant’s evidence tended to show that it was less than one inch thick. One witness for the plaintiff, a workman on the building, says that it was one inch thick when laid. The plaintiff says it was made of inch boards, and when planed, it was at least five-sixteenths of an inch thick. Here again, the plaintiff’s position, that he substantially complied with the contract, is sustained by the evidence of unimpeached witnesses.

The specifications require knobs to be used on one of the doors. The plaintiff used in their stead, metallic handles, which can be easily removed and glass knobs placed in their stead, without much trouble. The windows were to be cased with good pine lumber. This was not done, but hemlock was used for the inside casing. The style of casings required by the specifications were very plain; no ornamentation whatever being required. The hemlock pieces could be easily removed if desired, and pine substituted without injury to any part of the building, and at a cost which could be easily estimated.

I have examined all the exceptions taken on the trial to the reception and rejection of evidence, to which our attention has been called by the appellant’s points, and I discover no error in the rulings which would justify the granting of a new trial.

The learned trial judge charged the jury in substance, that if the plaintiff had performed his contract entire, then he was entitled to recover the contract price, and if they found that he had not so performed his agreement in all respects, then, whether he was entitled to a verdict for any sum whatever, depended upon other questions of fact, which they were to determine. That if he had not strictly and fully complied with the contract in all respects, and had acted in good faith, intending to and attempting to perform his contract, and did substantially perform it, though not strictly and literally so, he was entitled to® recover not the full contract price, but deducting from the same ■ a sum sufficient to fully indemnify the defendant from all damage and injury arising from the defects and the particulars in which the contract was not fully and strictly performed. But if the plaintiff’s failure to strictly perform his contract, was owing to a want of good faith on his part, or want of intention or attempt strictly to perform on his part, or if he wilfully or knowingly disregarded the requirements of the contract and specifications, he could not recover anything. To the charge as made, the defendant took no exception. The court also charged the jury, at the request of the defendant, that if the plaintiff knew at the time he put basswood ceiling over-head, that the defendant and the committee did not consent thereto, it was not a substantial compliance with the contract and specifications, and the plaintiff could not recover. The defendant, among other things, asked the court to charge the jury that the affirmative was with the plaintiff to show that the defendant or committee consented to substitute basswood ceiling for pine ceiling, and unless he has shown that, by a preponderance of evidence, his action in putting on the basswood ceiling instead of pine was not warranted by the specifications, and is a substantial departure from the specifications, and the plaintiff cannot recover. To this request, the court replied: I decline to charge the jury in accordance with the request, unless they are satisfied that the plaintiff understood from what took place between the committee and himself on the evening of the school-meeting in reference to this ceiling, unless he understood that in good faith as an arrangement on their part, that he could make that substitution. The affirmative falls upon him to show that fact, that he was acting in good faith and believed he was acting in good faith, and believed that he was acting in conformity with an arrangement made with the committee. An exception was taken to the refusal to charge as requested, and to the charge as modified.

The effect of the several propositions, when read together and fairly construed, amount to this, that the plaintiff could not recover if he knowingly used basswood instead of pine, without the consent of the trustees. But if from the negotiations had with the trustee, he understood and in good faith believed that the trustee had given his consent to the change, although he had not, in fact, then he might recover, deducting from the contract price the damages to the defendant, arising from substituting one kind of material for the other. That is to say, that it was for the jury to determine, although the defendant had not consented to the change, whether the use of basswood for the ceiling was a substantial compliance with the contract, the plaintiff intending in good faith to perform the contract, and liad substantially done so. If the defendant did not consent to the change, the rule of construction adopted by the court, that the plaintiff had not performed his contract specifically and fully, and he could not recover the contract price. But if he, in good faith, believed from the conversation he had with the trustee that the substitution might be made, and made it in good faith, then we think a case was made in which the jury would be justified in saying that the contract was substantially complied with, and there was no intentional departure from the agreement and specifications. There was no proof in the case that basswood was not a proper material and as useful as pine for this purpose. Nevertheless the court recognized the general rule of law, that where a party stipulates for a particular kind of material to be used in the construction of a building, the omission to do so is a breach of the contract.

The court was requested to charge several other propositions which were refused, all of which had been carefully examined, and in view of the charge as made, and the legal propositions involved in the several requests, we fail to discover any error. The jury were permitted under the charge to deduct from the contract price every item of damage which they, from the evidence, believed the defendant had sustained by reason of the plaintiff’s non-performance of the agreement, which the jury have assessed and deducted from the contract price, and they could not have estimated the same above-$50, and in their judgment they may not have exceeded $25, depending upon whether they allowed anything or not for extra labor. Adopting the evidence as given by the plaintiff’s witnesses, as the jury must have done in view of the charge and their verdict, then it may well be said that the plaintiff did substantially comply with his contract, and the defendant has been indemnified against all loss by the abatement which the jury have made from the contract price. The general rule of law applicable to the case is well settled in this State by repeated decisions, and is as follows : That in a building contract where performance is made a condition of payment, performance must be shown to entitle a party to recover. But when the builder has in good faith intended to and has substantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, be may recover the contract price, less the damage on account of such defects. Smith v. Brady, 17 N. Y., 173; Johnson v. Depeyster, 50 N. Y., 666; Glacius v. Black, 50 N. Y., 145; Phillip v. Gallant, 62 N. Y., 256.

Judgment and order affirmed.

All concur.


text:
    Village of Olean v. John King, Richard King and Wallace W. Weston.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. COLLECTOR OF TAXES — LIABILITY OF.
    A town collector having a valid process in his hands which it was his duty to execute, can be released in but two ways from the liability thereby imposed upon him; first, by paying to the proper officer the gross sum which he is required to collect; second, by returning the warrant and paying over the money collected with an itemized account of the unpaid taxes duly verified.
    2. Municipal corporation — Special authority to borrow.
    When special authority to borrow money for a designated purpose is given to a municipal corporation, it impliedly repeals all existing limitation upon the rate of taxation, if such was the legislative intention.
    3. Warrant foe the collection of taxes — Kenewal of — Liability of SURETIES UNIMPAIRED.
    Where a warrant issued to a town collector for the collection of taxes expired and was renewed by the trustees in accordance with a power granted them by a special provision of the town charter. Held, not to relieve the sureties on the collector's bond from their obligation, that the case was the same in legal effect as if the power to renew the warrant had been referred to by a recital in the bond and specifically assented to by the sureties.

      A MOTION by the defendants to set aside the verdict rendered at the Cattaraugus Co. Circuit, in the plaintiff’s favor for $4,878.84, as ordered by the trial judge and for a new trial of the issues.

      J. H. Waring, for the defendant, Wm. M. Weston; Geo. H. Phelps, for the defendants, Jno. and Richard King; J. R. and M. D. Jewell, for the plaintiff.
   Barker, J.

John King was the collector for the village of Olean, for the year 1888, and the other defendants were his sureties on his official bond. A warrant indue form of law was placed in the collector’s hands by the board of trustees with directions to collect the tax extended on the assessment roll which aggregated the sum of $20,964.64. Of this sum he collected and paid over to the treasurer $16,066.88, leaving uncollected or unaccounted for, the sum of $4,878.84, for which amount the verdict was directed. The section of the village charter creating and defining the duties of the collector provides, that the collector shall collect all such taxes and assessments as shall be specified in the rolls delivered to him by the board of trustees with their warrants attached. . . and for that purpose shall possess the powers conferred by law upon town collectors and shall proceed in the same manner to enforce such tax or assessment. He shall pay over to the treasurer as often as may be prescribed in said warrant all moneys collected by him, and at the expiration of such warrant, shall return the same to the board of trustees, with an account, verified by his oath, that the same is correct, of the moneys collected by him, the amount paid to the treasurer and an itemized account of the unpaid taxes and assessments. The board of trustees may in their discretion renew such warrants from time to time, or issue a new warrant for unpaid taxes. Laws of 1882, chap. 110, sec. 16, title 2.

The collector is required to give a bond with sureties conditioned that he will faithfully discharge the duties of his office, and honestly and faithfully account for and pay “ over all moneys received by him by virtue of his office.” The bond executed- and delivered by the defendants was in full compliance with these requirements. At the expiration of the warrant, the collector neglected to return the' same or the assessment roll, to* which it was attached, to the board of trustees, or to render any account of the moneys collected by him, or to make any statements, or render an account of the unpaid taxes. On the trial the defendants sought to excuse this omission of duty on the ground that the assessment roll and warrant were lost or mislaid while in his hands and the collector was unable to produce the same. Their contents, as to the aggregate valuation of the property placed on the assessment roll, the amount of the tax and the items composing the same was proved by the minutes of tbe board of trustees and the testimony of the village officials. In bar of a recovery for the taxes uncollected, the defendants claim that the entire tax was void for the reason, that the aggregate amount of the tax assessed was in excess of the amount which the board of trustees were authorized to levy and assess in any one year, and it was in violation of the restraints placed on their power by the charter. The clauses containing the limitations are found in section one, title seven, and are as follows : “ The board of trustees shall have power to raise by general tax from the taxable inhabitants of said village, and the property liable therein to taxation, such sum of money as they shall deem proper, not to exceed the sum or rate of seven mills for each dollar valuation in any one year, to be expended in the payment of the debts and ordinary expenses of said village, and to carry into effect the several powers and privileges granted by this act. In addition thereto each male inhabitant of the age of twenty-one years and upwards. . . shall be assessed one dollar poll tax. . . This section does not, however apply to any tax or assessment for sidewalks or sewer or drain purposes, or any other tax or assessment for local improvement, or for whieh special provision is made in this act.” By other provisions of the charter, on the vote of the tax-payers at a special meeting called for that purpose, a further sum may be raised by general tax on the property liable to taxation. Sec. 2, title 7.

The assessor’s valuation of the taxable property as contained in their roll was two million, and a tax of seven mills on a dollar would produce the aggregate sum of 114,000, which sum is no greater in amount than the items of indebtedness created for the ordinary and current expenses for the year preceding the levy of the tax. The excess above that sum consisted of two items, one a poll tax of nine hundred dollars, the validity of whieh the defendants do not question, and it was plainly authorized by the provision already quoted. The other item embraced in the levy, amounting to $6,491,73, was an indebtedness against the village created by the board of water commissioners, certified by them to the board of trustees in pursuance of a power conferred upon that board by an act hereinafter referred to.

For the reason that the tax levied is more than seven mills on the dollar of the assessor’s valuation, the defendants insist the entire tax is void. No claim is made that any items of the indebtedness embraced in the levy was invalid and not a subsisting indebtedness against the village. As the collector’s warrant was regular on its face, it was a complete protection to the collector in all regular proceedings taken by him in obedience to its mandate. The board of trustees possessed full power to levy a tax and issue a warrant for its collection, but the facts necessary to confer jurisdiction upon the board it was not necessary to set forth in the warrant. None of the taxpayers, bád their property been seized and sold by the collector in payment of a tax, coiild have maintained an action against him, as his process was regular. No contention was made by the defendants against this proposition. The collector having a valid process in his hands which it was his duty to execute, there were but two modes by which he could be released from liability, — First, by paying to the proper officer the gross sum he was required to collect. Second, by returning the warrant, paying over the money collected with an itemized account of the unpaid taxes, duly verified. Nothing less would be a performance of the obligations imposed upon him by the statute. The loss of the assessment roll and warrant was the result of his own negligence and there are many circumstances indicating that he intentionally destroyed both. Bradley v. Ward, 58 N. Y., 401-410; Supervisors v. Bristol, 99 N. Y., 316-322.

We are of the opinion that the tax levied is not in violation of the restraining clause contained in the provision of the charter already cited. In reaching this conclusion, we have not omitted to keep in mind and observe the application of the rule, that municipal corporations have no inherent power of taxation, and to impose a valid tax the action of the municipal authorities must be within the powers and limitations of legislative authorization as found in their charters, or some other law relative to the question. In terms the restraint limiting the tax to seven mills on a dollar of valuation, in any one year, applies to the debts and ordinary expenses of the village, necessary to carry into effect the powers and privileges granted to it by its charter and specifically mentions instances when the limitation will not be applicable. Prior to March, 1888, there had been created and then existed a board of water commissioners for the village of Olean, organized under and in pursuance of chapter 181 of the Laws of 1875. The extent of their operations up to that time is not fully disclosed in the case, but that they had taken active measures to supply the village with water is not disputed and they had created some debts in aid of that purpose. On the 16th of March the tax-payers, at a special meeting held under the supervision of the board of trustees, voted by a large majority to issue bonds in the sum of $80,000 in pursuance of the provisions of said general act authorizing such action. After this, vote had been taken and on the 27th of the same month, the charter was amended giving the board of trustees, among other things, the power to appoint a board of water commissioners and vesting in such board when so appointed the power to issue bonds for water purposes binding upon the village to the amount of 180,000, in pursuance of the vote of the inhabitants of said village of March 16th, 1883, and in terms legalizing such vote.— Chap. 129, Laws of 1883.

The amendment of 1883 permits the creation of a debt against tbe village, and while it does not in terms provide tbe mode and manner of paying off, the principal of such indebtedness, or tbe current interest accruing thereon, we think it is obvious that it was the intention of the legislature to repeal, pro tanto, the limitation so as not to make it applicable to a tax levied to pay the indebtedness which the tax-payers had voted and the legislature sanctioned. The limitation placed on the board of trustees by a provision in the same section is not applicable to a tax levied in pursuance of a special provision of of the charter. The amendment of 1883, is in effect an amendment ofthe charter and provides for a tax specially exempted from the limitation as, Contained in the original charter. When special authority to borrow money for a designated purpose is given to a municipal corporation, it impliedly repeals all existing restraints contained in the charter imposing limitations upon the rate of taxation, if such was the legislative intention. In the case of Commonwealth v. Pittsburg, 34 Pa., 496, it was held where by a special act of the legislature, a city was authorized to create a large debt for a particular purpose, and to borrow money therefor and to make provisions for the payment thereof by the assessment and collection of such taxes as might be necessary therefor, it was, as respects the particular debt thus created, a repeal of all pre-existing restrictions upon the taxing power.

The provision of the general act of 1875, authorizing villages to establish a system of public water-works remains in force and in terms provides that all deficiencies in that department after deducting the water rates shall be paid by a general tax on the property of the village to be assessed, levied and collected in the same manner as the general taxes are levied and collected. The board of water commissioners were authorized to borrow money for the purpose of constructing the works upon a vote of the tax-payers, and not to create a debt or borrow money on the credit of the village without the sanction of a majority of the tax-payers expressed in the manner pointed out by sec. 21 of the general law on the subject. The vote of the tax-payers authorizing the loan may be fairly and reasonably construed as authorizing The board of trustees, to levy a greater tax than seven mills on the dollar, in pursuance of sec. two of title seven which provides : the board of trustees may cause to be raised such further sum or sums in any one year, by general tax, as they require, provided that the consent of a majority of the taxable inhabitants of said village, authorized to vote, and voting at an annual or special meeting called for that purpose, be first obtained.

The circumstance, that a levy of seven mills on the dollar of the assessor’s valuation only produces a sum sufficient to meet the current expense of the village is another reason, and to our minds a convincing one, that it was tbe legislative intention to repeal tbe restraining clause so far as it was necessary to provide for the prompt payment of tbe interest and principal of the loan in the manner and. at the time set forth in the bonds issued to the persons who loaned the money. If that is not so then the creditor is wholly dependent for payment of his debt and interest upon the will of the board of trustees, who may apply all the moneys that they are authorized to raise in any one year by tax to meet other and the current obligations which the board itself has the power to create.

In view of all the provisions of the charter on the subject of taxation, we have reached the conclusion that the tax as levied was in all respects valid. There is no pretense that the tax was imposed for the purpose of liquidating and paying off any unjust claim or demand made against the village. Under such circumstances, the action of the village authorities should be upheld by the court if the same can be done by a fair and reasonable construction of the statutes bearing upon the subject.

After the warrant expired the trustees renewed the same. This they were authorized to do by virtue of a special provision of the charter, and that act did not relieve the sureties from their obligations. The case is the same in legal effect as if the power to renew the warrant had been referred to by a recital in the bond, and specifically assented to by the sureties. People v. Vilas, 36 N. Y., 459-462.

There was some evidence tending to show that the items of indebtedness created by the water commissioners arose prior to March, 1883, and had no connection with the loan made in pursuance of the amendment of the charter and that the validity of the tax is not aided by any construction which may be given to that amendment. If there is any merit in this point it was not raised upon the trial.

At the close of all the proofs, the defendants requested the court to direct a verdict in their favor upon the ground that the ratio of taxation adopted exceeded the ratio provided by statute and for that reason the tax was illegal and void. The plaintiff asked the court to direct a verdict in its favor upon grounds which were stated by counsel. Neither party asked to go to the jury upon any question of fact. Thereupon the court directed a verdict in favor of the plaintiff. The defendants by their request only presented questions of law for the ruling of the court, waving the right to go to the jury upon any disputed question of fact and consenting that the court act as the trier on all questions at issue on which there was a conflict of evidence.

Motion for a new trial denied. Judgment ordered for the plaintiff upon verdict, with costs.

All concur.


text:
    Isaac Willetts et al., Appl’ts, v. Samuel N. Reid et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)
    1. COMPLAINT, SUFFICIENCY OF — DISMISSAL BEFORE OFFERS OF PROOF — ON APPEAL FROM, ALL FACTS ALLEGED MUST BE TAKEN AS PROVEN.
    In reviewing on appeal tlie determination of a referee dismissing plaintiff’s complaint before any proofs offered or statement made by the plaintiff of the facts which he intended to prove, it must be presumed that the plaintiff could sustain by competent evidence the facts set forth in the complaint, and the propriety of the dismissal must be determined from the allegations therein.
    2. Contract — Construction of — Lien.
    The complaint stated that plaintiffs, I. W. and W. G-., were the owners of and had the right to mine for oil upon premises described, and as to another parcel they were entitled to one-eighth of the oil which might be produced thereon by other parties. They were in possession of the first parcel and had drilled thereon oil wells which had produced a considerable quantity of oil. Connected therewith and used in the development of the property, was a plant of machinery and storage tanks. The plaintiffs, by an instrument under seal set forth in the complaint, sold and transferred all their interest in said property with the machinery, etc., and in the royalty mentioned to the defendant IC., who agreed to pay therefor $32,000, of which, at the commencement of the action, $7000 remained unpaid. K. entered into possession, operated the wells and produced a large amount of oil. The plaintiff, I. W., prior to the commencement of this action, acquired an interest by purchase in the contract of bargain and sale. Plaintiffs claim by virtue of the contract to have a lien upon all the property which ivas the subject of the sale, and the oil which has been produced or maybe produced, as security for the unpaid purchase money, and seek to enforce such lien and for a personal judgment against K. for any deficiency existing after the sale. The contract provides that all rigs, tanks, etc., now' on the land or hereafter put on the same, shall remain part and parcel of the premises until all payments are completed; and that in case of K.’s failure to make the payments as they fell due for ten days, then after such failure all oil produced upon the premises should be run into lines to the credit of I. W. as security for such payments. There was at the time of the sale some oil in store in the tanks on the premises. The contract provided further that all oil produced on the premises should be the property of K., or, if any were sold, the avails should belong to him. Held, That the contract operated as a sale in presentí, and vested title of all the property in the vendee, including the oil in store.
    3. Oil wells, etc. — Personal property.

      Held, That as between the parties to this action the interest of the vendors in the wells and all the machinery used in operating the same, must, by force of Laws 1883, Chapter 372, be regarded as personal property.
    4. Lien created by agreement — Valid against promisor and all CLAIMING UNDER HIM, EXCEPT INNOCENT PURCHASERS.

      Held, That the contract being that the vendee should give to the vendor security on the oil produced, although the manner and form was not provided in which the same was to be perfected so as to give the vendor written evidence of their lien, notwithstanding the omission and regarding the contract as a mere executory promise to give a lien, Courts of Equity would regard such a promise as creating an equitable lien enforceable as against the party promising and those claiming under him who are not innocent purchasers.
    5. Same — Foreclosure of — Parties.

      Held, That persons having or claiming to have interests in the property subsequent and subordinate to the plaintiff’s lien, were properly made parties to the action.
    6. Same — What not a bab to an action.

      Held, That the fact that K. had abandoned the premises and plaintiffs regained possession and were engaged in operating the wells and receiving the product of the oil and the avails thereof, was no bar to maintaining an action to foreclose the lien.
    AN Appeal from a judgment dismissing the plaintiffs’ complaint as to the defendants, Rufus M. Brown, Robert M. Wall, Charles H. Levins, and Samuel N. Reid, who are the respondents. These defendants and Thomas Kervin appeared and answered, denying many of the material facts upon which the plaintiff’s cause of action is based and setting up matters in defence, which, if true, would defeat a recovery as to all the defendants. The issues were all referred to a referee to hear and take proofs of the allegations in the complaint, and to compute the amount due and owing on the contract described in the plaintiffs’ complaint, and to report the same to the court. No case was made setting forth the proceedings on the hearing before the referee, but he states in his report that on motion of the counsel for all the defendants who answered except Thomas Kervin, the plaintiffs’ complaint was dismissed as to such defendants, and each of them on the ground that the same did not state facts sufficient to constitute a cause of action against such defendants or either of them, with costs which were taxed and entered in the judgment at $143.77. No trial was had on issues between the plaintiff and the defendant Kervin, and they remained untried. The case was submitted on printed briefs.

      Hamilton Ward, for the appl’ts ; A. L. Elliott, for the resp’ts-
   Barker, J.

As the complaint was dismissed on the defendants’ motion before any proofs were offered.or any statement made of the facts which the plaintiff intended to prove in support of his cause of action, it must be determined by the allegations contained in the complaint whether the same was properly "dismissed, for it is to be presumed that the plaintiff could sustain by competent evidence the facts therein set forth. A perfect cause of action was stated against the defendant Kervin, entitling the plaintiff to the recovery of a personal judgment against him for a large sum of money, and for the other relief which was demanded in the complaint. The complaint states in substance that the plaintiff Isaac Willetts and William Cran-ston were the owners of and had the right to operate and mine for oil on certain premises which are specifically described, and as to another parcel they were entitled to one-eighth of the oil which might be produced thereon by other parties as a royalty to be paid to them. They were in possession of the first named parcel, and had drilled five oil wells thereon, which were productive, and which had produced a considerable quantity of oil. There was connected therewith and used in developing the property engines, derricks, pumps, drills and tanks for storing oil, such as are commonly used in that business. By an instrument under seal which is set forth in the complaint, the plaintiffs sold and transferred all their interest in the said property, together with the said machinery and apparatus, and in the royalty before mentioned, to the defendant Thomas Kervin, who agreed to pay therefor $32,000, and the complaint alleges that at the time of the commencement of the action, there was due and unpaid on said contract, $7,000. It is also alleged that Kervin entered into the possession of the premises, operated the wells and produced a large quantity of oil. It is also averred that the other plaintiff, Leonard Willetts, acquired an interest by purchase in the contract of bargain and sale, prior to the commencement of this action. The plaintiffs also claim that by virtue of the contract they have a lien upon all the property which was the subject of the sale, and the oil which has been produced, or which may be produced, as a security for the unpaid purchase money, and seek in this aqtion to enforce such a lien, and for a personal judgment against Kervin for any deficiency that may exist after a sale. In the contract immediately following Ker-vin promised to pay the purchase price, there is a provision that “all rigs, tanks, boilers, engines, tubing and casing, now upon said land, or hereafter put upon the same, shall remain upon the same as part and parcel of the said premises until all payments be made and completed herein,” and the concluding paragraph of the agreement is as follows: “ it is further agreed by and between the parties hereto, that in case of failure on the part of said Kervin, to make the payments herein at the time they shall respectively fall due for the period of ten days, then after such failure, to meet such payment, all oil produced upon the said premises, shall thereafter be run into the lines to the credit of Isaac Willetts, as a security for such payments.” At the time of the sale there was some oil in store in the tanks on the premises, and the contract also contains this clause, “ all the oil produced upon the above premises shall be the property of the said Ker-vin, or if any be sold, the avails thereof shall belong to him.” It is manifest, when taken in connection with the averments of the complaint, that the last mentioned term of the contract just quoted, was intended to be a sale of the oil in store at the time of the making of the agreement. We are inclined to the opinion, and in disposing of this appeal, we shall view the contract ■ as a sale in presentí, and vesting the title of all the property in the vendee.

The respondents’ position is, that as against Kervin, the plaintiffs had no lien upon the property, and could only recover a personal judgment against him, and for that reason they were unnecessary parties, and there could be no advantage secured to the plaintiffs by retaining them as parties defendant to the action pending the trial of the issues between them and Kervin. In our consideration of this question, we have reached the contrary conclusion, and think that the plaintiffs have an equitable lien upon the property and the oil produced, until the entire purchase price is paid. As the vendors were the owners of the fee, the land, their interest therein in the wells, and all the machinery used in operating the same, must be regarded as personal property as between the parties to this action, by force of chapter 372, of the Laws of 1883, which provides, “all off wells and oil fixtures connected therewith, situate on lands, leased “for oil purposes, and.all interests and rights held under and by virtue of any lease, oil contract, or other right or license to .operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation.” As to a lien arising on the express contract of the parties, the general rule as stated by one of the elementary writers is : “ that every express executory agreement in writing, whereby the contracting parties sufficiently indicate an intention to make some particular property, real, or personal, or fund therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign, or transfer the property as .security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands, not only of the original contractor but of his heirs, administrators, executors, voluntary assignees, and purchasers or incum-brancers with notice.” Pomeroy’s Equity Jurisprudence, vol. III, § 1235.

The promise of the vendee was to give a security upon the oil produced, and the form and manner in which the same was to be perfected so as to give the vendor some written evidence of their lien, was not provided for in the agreement. But notwithstanding this omission, and regarding the contract as a mere •executory promise to give a lien, courts of equity regard such .a promise as creating an equitable lien which will be enforced .as against the party promising to give the hen and those who claim under him who áte not innocent purchasers. Pomeroy’s Eq. Jurisprudence, 373, § 1237.

In this State the general rule as stated has been applied in particular cases, sons to carry out and consummate in an effective manner the real intention of the parties as stipulated in their agreement. In Husted v. Ingraham, 75 N. Y., 251, the plaintiff sold and delivered a quantity of carpeting to their vendees which was put down in their hotel with the understanding that the purchasers should secure the purchase price to the vendors by a chattel mortgage. The purchaser’s notes were received without exacting a chattel mortgage upon the carpets, and thereafter a receiver .was appointed of the property of the purchasers, and he claimed a title to the carpets. In commenting upon the rights of the parties the court said, “ the carpets having been delivered upon an agreement that the price should be secured by a mortgage thereon, that agreement could have been specifically enforced in equity and constituted an equitable lien against the property as against the purchaser, and all parties claiming through or under them except bona fide purchasers having no notice of the lien.

In Hale v. Omaha National Bank, 49 N. Y., 626, the lessees of a hotel property agreed in writing, in one of the clauses of the lease, to give their vendors a lien to secure the payment of rent upon all the furniture which they should place in the hotel. The defendant seized the property and converted the same to his own use without any claim or color of title. The court in holding that the plaintiff had an equitable lien upon the property said that the parties evidently contemplated some further and other act or deed, to complete and perfect the security, but notwithstanding the failure to do so, the lessors had a right as soon as the lessees placed the furniture in the hotel, and they could have required of them security in proper form upon the property, and had they refused, upon request, to give the lien agreed upon, a specific performance would have been decreed and the court would have seized hold of the executory promise and regarded that as done which the parties had promised to do, and thus secure to the lessor a perfect and effective lien as stipulated in the agreement. See also Flagg v. Mann, 2 Sumner, 487; Chase v. Peck, 21 N. Y., 581; Gilson v. Gilson, 2 Allen, 115; Peckham v. Haddock, 36 Ill., 38; Chadwick v. Clapp, 79 id., 119.

As to the other items of property, we think, on reading all the provisions of the agreement, that it was the intent and purpose of the parties to give the vendors a lien ihereon for the purpose of securing the unpaid purchase money, and the clause which provides that the same should remain upon the premises, and as a part and parcel of the same, until all the payments should be made and completed, was inserted for the purpose of securing that end. The form or particular nature of the agreement which will be sufficient to create a lien is not very material, for equity looks rather to the final intent and purpose of the parties rather than at the form ; and if the intent appeared to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows. Pomeroy's Eq. Jur., § 1237, and the cases cited in the foot notes.

The fact as alleged in the complaint that Kervin had abandoned the premises and the plaintiffs had regained possession of the same, and were engaged in operating the wells and receiv-. ing tbe product of oil and tbe avails thereof, is no bar to maintaining an action to foreclose this lien, and is an additional reason why they should institute foreclosure proceedings and render an account of the avails of the property, so that the true amount of the unpaid purchase money may be ascertained. The defendant Reid is the general assignee of Kervin, and for that reason he is a proper party defendant. As to the other defendants, the complaint avers that they have or claim some interest in the property subsequent and subordinate to the lien of the plaintiff, and in their answers they set up a lien upon the property and claim that the plaintiff’s debt has been fully paid and satisfied. The plaintiffs having a lien on the property as against their vendee, in an action to foreclose the same, there can be no doubt whatever, but that the defendants named were proper parties in this action. Fowler v. Mutual Life Ins. Co., 28 Hun, 198; Brown v. Volkenning, 64 N. Y., 76.

Judgment reversed, new trial granted, with costs to abide the event.

All concur.


author: Bradley, J.

text:
    Jane R. Hatch, and John Conolly, as administrators, etc., of Catherine Curbon, deceased, Appl’t and Resp’t., v. John L. Stewart, as executor of Angus McDonald, deceased, Appl’t and Resp’t.

      Supreme Court, General Term, Fifth Department,

      Filed October, 1886).
    1. REFERENCE — DECEDENT’S ESTATE — REFERENCE OF DISPUTED CLAIM— Special proceeding.
    Where a disputed claim against the estate of the defendant’s testator was referred pursuant to 2 R. S. 88. § 36, as amended by Laws of 1859, ch., 261, and a report made by the referee, which was confirmed by order of the special term and judgment entered thereon, it was held, that this was a special proceeding. „
    2. Same — Special proceedings — Judgment in — Appeals — Laws 1854, ch., 270, § 1, repealed by Laws 1877, ch., 417, § 2 — Code Civ., Pro., § 1346.
    Laws of 1834, ch., 270, § 1, providing for appeals from judgments in special proceedings was repealed by Laws of 1877, eh., 417, § 2, and Code Civ., Pro., § 1346, providing for appeals from judgments does not seem applicable to special proceedings.
    3. Same — Trust funds — What will not amount to conversion of — Declaration of TRUST.
    The plaintiff’s intestate died seized of land in Pennsylvania subject to a mortgage. J. R. II., one of the plaintiffs, was her sole heir and next of kin. The defendant’s testator became agent of the plaintiffs and of J. R. H., and as such had power to dispose of the land for her. The holder of the mortgage commenced foreclosure proceedings and it was deemed by the plaintiffs and the defendant’s testator for the advantage of the estate to purchase the mortgage and prevent the foreclosure and the plaintiffs with that view, furnished a portion of the money necessary for that purpose and the defendant’s testator obtained the remainder on his own responsibility and took an assignment of the mortgage holding it till his death. Thereafter, it came into the defendant’s hands as executor, who proceeded to collect the mortgage. It became necessary to have an administrator with the ■will annexed appointed in Pennsylvania, and on his accounting before the Probate Court allowance was made for his commissions and counsel fees. Held, that the fact that the plaintiffs knew the manner in which the money furnished was to be used and approved of it, and that a considerable portion of the moneys were furnished by the defendant’s testator, relieved him from the imputation of bad faith in taking the assignment in his own name. That his letter announcing to the plaintiff J. R. H. the amount of the fund belonging to the plaintiff’s intestate which had been used in the purchase of the mortgage and the amount paid for the mortgage was virtually a declaration of trust. That there was no reason why the defendant should be subjected to more than the proper proportion of the expenses of the collection of the money secured by the mortgage, nor charged with interest on the sum after the administrator received it and before it was paid to him. That his duty was to pay over to the plaintiffs the amount to which they were entitled without delay, and neglecting to do so he was properly chargeable with interest from the date of the receipt by him.
    4. Same — Prevailing party entitled to fees op refebee and witnesses AND NECESSARY DISBURSEMENTS — CODE OF CIVIL PBO., § 317— Not bepealed.
    The plaintiff being the prevailing party is entitled to recover disbursements as a matter of right, because the provisions of section 317, of the Code of Procedure to that effect was not repealed by Law of 1877, ch,, 417, and although the entire provisions of the old Code are embraced in the repealing clause of Laws of I860, ch., 245, § 1, subd., 4 and § 2, the then existing right of the prevailing party to recover the fees of referees and witnesses and other necessary disbursements in proceedings of this character is preserved by § 3, subd. 8 of the same act. Miller v. Miller, 32 Hun, 481, not followed.

    Appeal from judgment entered upon confirmation of report of referee in a proceeding to determine a disputed claim against the defendant’s testator.

      Edwin A. Medcalf, for pl’ffs; Geo. B. Forsyth, for def’t.
   Bradley, J.

The matter in controversy was referred pursuant to the statute (2 R. S. 88, § 36, as amended by Laws of 1859, ch. 261.) It was heard and a report made by the referee by which he determined that the plaintiff was entitled to recover. And upon application to this court at special term, the report was confirmed. There is no appeal taken from the order, but both parties appeal from the judgment only. This is'a special, proceeding. Roe v. Boyle, 81 N. Y., 305.

Provision was made for appeals from judgments in these proceedings by Laws of 1854, ch. 270, § 1. That section was repealed by Laws, of 1877, ch. 417, § 2. And our attention is called to no remaining or subsequently enacted statute providing for such appeal. The provisions for appeals from judgments (Code Civ. Pro., § 1346) do not seem applicable to special proceedings. Id., 3343, subd. 20. In them appeals from orders are provided for. Id., § 1356.

But as both parties treat the case as properly here upon the merits, we will not further pursue the inquiry or consider that question.

The plaintiffs’ intestate died, seized of a parcel of land, situated in the city of Allegheny, State of Pennsylvania, subject to a mortgage upon it. The plaintiff, Jane R. Hatch, was her sole heir and next of kin. The defendant’s testator became the agent of the plaintiffs, and was the agent of Jane R. Hatch, and as such had the power to dispose of the land for her. The holder of the mortgage threatened to foreclose it and commenced proceedings for that purpose. It was deemed by the plaintiffs and the defendants’ testator, for the advantage of the estate that the mortgage should be purchased and controlled in its interest, and the then foreclosure prevented. And with that view the plaintiffs placed- in the hands of McDonald $2,200, in money (that being the amount then at their command), July 17, 1883, and McDonald obtained from other sources upon his individual responsibility and furnished the sum of $2,470.20, making together $4,670.20, with which he purchased the mortgage, and it was assigned to him. He held the mortgage up to the time of his death, which occurred February 10th, 1884. Thereafter it came to the possession of the defendant as executor, who proceeded to collect the mortgage 4 to do which, and obtain the money, it became necessary to have an administrator • with the will annexed appointed in the State of Pennsylvania, which was done; and he received on November 18, 1884, $4,761.71, the amount then due on the mortgage. And his accounting was accomplished by decree of the probate court, August 5,1885, by which such ancillary administrator was directed to pay to the defendant, $4,205.38. And in September following, he made such payment» with interest from the time of such decree, amounting to $12. The reduction of the amount so collected by the administrator was produced by allowance and deduction of $335, for the expenses of administration, including his commissions and counsel fees, and a collateral five per cent, inheritance tax of $221.33, on the balance, which was imposed pursuant to the law of that State. This deduction was properly made, and in addition to this, the defendant’s expense properly and necessarily incurred “ in the care, protection and collection of the mortgage,” amounted to $254.92. The referee held that the defendant was entitled to be allowed $122.22, of his expenses incurred in the care, protection and collection of the mortgage, and $91 as compensation for discharging the duties of his trust. And that the plaintiffs were entitled to recover $2,200 and interest from July 17, 1883, less those sums so allowed him, amounting to $213.33.

On the part of the plaintiffs, it is contended that they were entitled to recover the full amount of the money furnished by them to the defendant’s testator, with interest from the time he received it from them. And that the deduction made was improperly allowed.

And the defendant’s contention is that the allowance to him should embrace the proper portion of all the expenses and tax. And that he should be charged with no interest.

The referee lias found that all these expenses, and the inheritance tax were necessarily incurred and paid. But the objection to the allowance to the defendant of anything by way of abatement of the plaintiffs’ claim, is founded upon the fact that McDonald took the assignment of the mortgage in his own name, and thus apparently appropriated the money which he received from the plaintiffs to his own use, and while they might trace it into the mortgage, and treat him as holding that security to that extent in trust for them, they were not required to do so, but were at liberty to charge him personally for the amount.

This is ordinarily so when trust funds are so appropriated or used as to conceal the trust, or mingled with the funds of the trustee in transactions apparently his own. Mumford v. Murray, 6 John, Ch. 1; Hart v. Bulkley, 2 Edw. 70; In re Stafford, 11 Barb. 353; Ferris v. Van Vecten, 73 N. Y., 113.

This rule rests upon the imputation of bad faith or negligence of the trustee in the matter of his duty as such, which exists, in fact, or may be implied by law from the manner he deals with the fund taken or held by him as such. And the presumption of breach of trust arises whenever any use is made of the fund which gives the appearance of any other relation to it than that of trustee. But there may be qualifying circumstances of relief from such imputation, and we think they exist in this instance. It was understood by the plaintiffs when they furnished this money to McDonald that he should use it as part of the amount requisite in the purchase of the mortgage, and that he would supply the residue of the sum necessary. The plaintiff Conolly loaned to McDonald a portion of it, the latter borrowed some of it from another, and was able to supply the balance. With this money he purchased the mortgage, and immediately by letter informed the plaintiff, Jane B,. Hatch, what he had done, and gave her a statement showing the amount of the fund belonging to estate of the plaintiff’s intestate that had been used for the purpose, and the, amount paid for the mortgage. She understanding that the $2,200 was so invested in the mortgage, approved what he had done, and the mortgage was thereafter held by him with her assent and at her request. His letter to her was substantially a declaration of the trust contemplated when the money was furnished, and impressed upon the assignment to him of the mortgage as effectually as if the trust had been expressed in it, as between him and the plaintiffs.

This and the fact that a considerable portion of the money was furnished by him to purchase it, takes from the appearance of the assignment in form to him individually, all imputation of breach of trust so as to charge him personally. School District v. First National Bank, 102 Mass., 174; Barry v. Lambert, 98 N. Y., 300

And the circumstances clearly show that the transaction on bis part was in good faith, and that he furnished'.the money by him supplied, and procured the assignment of the mortgage wholly for the protection of the estate, and the interest of Jane R. Hatch, the heir and next of kin of the plaintiffs’ intestate. No reason appears why he should be subjected to more than the reasonably proper proportion of the expenses of the collection of the money secured by the mortgage'. The amount so furnished by the plaintiffs was a little over 47 per cent, of that required to obtain the assignment. No reason appears to charge the defendant with interest after the receipt by such administrator and before it was paid to him.

He should be treated as trustee for the plaintiffs in respect to the fund. His duty was to pay over to the plaintiffs the amount of the sum by him received to which they were entitled without-delay. It does not appear that he offered to do so. He should; therefore be charged with interest upon it, from the time of its receipt by him. And the fund due the plaintiffs should be charged with its proportion of the expenses of the administration in Pennsylvania, and of the inheritance tax as well as of the expenses allowed by the referee.

This view entitles the plaintiff to recover $1,776.08, as of the time of the receipt of the money by the defendant. And as the. day of receipt by him does not definitely appear, it may be designated as the 15th day of September, 1885.

' The modification of the judgment should he without costs of this appeal, but the recovery of disbursements as directed by the-judgment must stand. The plaintiff was entitled to them as matter of right, because the provisions of section 317 of the old Code to that effect was not repealed by Laws of 1877, ch. 417. And although the entire provisions of the old Code are embraced in the repealing clause of Laws of 1880, ch. 245, § 1, subd. 4, and § 2, the then existing right of the prevailing party to recover the fees of referees and witnesses and other necessary disbursements in a proceeding of this character, is preserved by § 3, subd. 8. of the same act. Hall v. Edmunds, 67 How, 202; Sutton v. Newton, 2 How. N. S., 56; S. C., 15 Abb., N. C., 452; 7 N. Y. C. P. R, 334; Overheiser v. Morehouse, 2 How., N. S., 257; S. C., 16 Abb., N. C., 208; 8 N. Y. Civ., Pro., R., 11.

In Miller v. Miller, (32 Hun, 481), it was held otherwise, but we think that the provisions of section 317, of the old Code in the respect referred to, were saved from repeal by the proviso in the act of 1880. before mentioned, and are not-superseded by Code Civ. Pro., § 3246.

. The judgment should be so modified as to make the recovery. $1776.08, and interest thereon from the 15th day of September, 1885, with the fees of. referees and witnesses, and other disbursements recovered thereby. And as so modified, affirmed, without costs of this appeal to either party.

Shith, P. J. and Barker, J., concur.


text:
    John Chadwick, Appl’t. v. Decimus R. Burrows, and John E. Potts, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886).
    1. PARTNERSHIP — SALE OP PARTNERSHIP PROPERTY BY SURVIVING PARTNER.
    The surviving partner of a firm has power to sell the partnership property and apply the avails to the debts of the firm.
    2. Same — Assignment for the benefit op creditors.
    Where the surviving partner of a firm sold the firm property and the vendee “ agreed to pay each of the creditors of the said firm of B. and L. forty per cent of the indebtedness of each creditor, in full of such debt,” there being no reservation in the property or proceeds to enure to the benefit of the debtor firm in any event other than that derived from the payment. It was held, that if an assignment had been made in trust for creditors, and it had required them to satisfy their claims as a condition of receiving stated sums less than the full amount of their debts, the instrument would have been fraudulent and void as against any creditors, who had not consented to such a disposition of the property. Held, that such an agreement, as far as it applied to those creditors who had consented, was valid. Held, that this agreement gave a creditor the right to the stipulated rate to apply on his claim, without any undertaking on his part to discharge the residue of his demand.
    Appeal from judgment entered on decision of Niagara special term, dismissing the complaint on the merits.
    Decimiis R. Burrows and Calvin G. Lane were partners, carrying on the lumbering business at Tonawanda, N. Y., in the firm name of Burrows and Lane.
    The firm became insolvent, and Lane absconded. A meeting of the creditors of the firm was called; they met, examined its property and ascertained the amount of the liabilities of the firm; and all the creditors except the plaintiff, joined in an arrangement that the defendant Potts should take the property and pay the creditors forty per cent, of their claims.
    Thereupon Burrows in the name of the firm sold and transferred all its property to Potts, in consideration that he take it and pay the creditors forty per cent, of the amount of their debts and satisfy the liability of the firm to him of $18,000.
    In performance of the agreement Potts made such payments to all the firm creditors except the plaintiff. And the court found that the latter had declined to receive such payment. The plaintiff proceeded to judgment on his claim. And execution thereon having been returned unsatisfied, he, by this action, charges that such sale and the sales of .other property by Burrows individually to Potts were fraudulent as against creditors. Also that the defendant Potts has other property, etc., in his hands, belonging to the firm, etc. Lane and George W. Sherman, were named as defendants.
    The former was not served, and both he and Sherman after-wards died. And the action proceeded against the appellants only.

      A K. Potter, for appl’t; Creo. Wing, for resp’ts.
   Bradley, J.

The action is in the nature of a creidtor’s bill, to set aside the sales made by the firm of Burrows and Lane, and by Burrows to the defendant Potts, upon the charge that they were fraudulent as against the plaintiff, a creditor of the firm. The trial court found and determined that the allegations of fraud were not supported, and dismissed the complaint. The value of the. property of the firm transferred to Potts is not, nor is the amount of its liabilities found by the court. The evidence on those subjects was mainly that of the plaintiff, and in view of his relation to the action, it did not conclusively establish the facts to which he testified. The court was not requested to find on those propositions of fact; and inasmuch as no finding was made in those respects, no question of the comparative amount in value of the property, and of the liabilities of the firm is presented on this review to the prejudice of the result given by the decision of the trial court. The inquiry therefore arises whether the legal effect of the sale of the firm property to Potts in view of the purpose and consideration, was such as to charge the parties to it with the intent to hinder and delay the plaintiff in the collection of his debt, and thus render it fraudulent as against him. The one member of the firm had the right to sell the partnership property, and apply the avails on the debts of the firm. Mabbett v. White, 12 N. Y., 442; Grasser v. Stellwagen, 25 N. Y., 315. The sale to Potts was absolute in terms. There was no reservation in the property or proceeds to enure to the benefit of the debtor firm in any event, other than that derived from the payment by Potts upon its debts in performance of the consideration of the sale to him, unless an advantage may be found to have been reserved in the fact as found by the court that Potts “ agreed to pay each of the creditors of the said firm of Burrows and Lane forty per cent, of the indebtedness of each creditor in full of such debt.” If an assignment had been made to him in trust for the creditors, and it had required them to satisfy their claims as a condition of receiving respectively stated sums less than the full amount of their debts, the instrument would have been fraudulent and void as against any creditors who had not consented to such a disposition of property. Hyslop v. Clarke, 14 John, 458; Grover v. Wakeman, 11 Wendell, 187; Armstrong v. Byrne, 1 Edw., 79; Spaulding v. Strang, 37 N. Y., 139.

The validity of an assignment in trust for the benefit of creditors requires that the assignor part with all control over the property assigned, and that it be unqualifiedly devoted to the payment of his debts, without, any reservation for his own advantage. This is the condition on which he is permitted to withdraw it from the ordinary process of the law. Although the sale bere was m terms absolute, it was made under an arrangement that the vendee should apply the purchase price upon the debts of the vendors. And if such application was by the agreement, without the consent of the creditors, made to depend upon the condition that the creditors should discharge the entire debts due them on receipt of the prescribed rate of forty per cent., their respective amounts, it would seem to be a stipulation for the advantage of the vendor in the agreement of sale, which might not legally be sanctioned. The debtor firm was at liberty to sell Its property for an adequate consideration, and direct the payment of the purchase money on a portion only of the debts, and in that manner give a preference to creditors. The consideration to be paid for the property here was the amount of the particular percentage of all the debts, to be paid by the purchaser to the creditors. So far the agreement was vabYL

And so far as the agreement to pay that amount in full satisfaction of the debí-¡ applied to those creditors who had consented to such arrangement, it was also valid. In view of the circumstances, a fair construction of the agreement makes it in that respect applicable only to those creditors who, by their consent, adopted it. It certainly could not affect or apply to others.

This arrangement was brought about at a meeting of nearly all of the creditors, and made pursuant to their request. They were willing to take fortyper cent, in satisfaction of their claims. It was in view of the arrangement by and with them, that the sale and purchase were made. And Burrows was probably induced to make the transfer by reason of the understanding thus made with such creditors so far as they could do it, that the firm property should go in satisfaction of. the partnership liabilities.

The title passed to Potts and he assumed the obligation to pay for it, by paying to all the creditors pro rate, a sum equal to such percentage of'their debts against the firm.

This would seem to give to the plaintiff the right to the stipulated rate to apply on his claim without any undertaking on his part to discharge the residue of his demand. The expeoi-2-tUiu_ (if it existed) of Burrows, that the discharge of all the debts could be produced by such payments, and" the arrangement in that respect in the agreement of sale could not affect the liability of Potts to make the payments which he undertook to. make.

The evidence tends to prove that the creditors, ur some of them, who received such amounts^-assigned their claims to Potts. This evidently "«¡ngBsLoRe tircarry out such arrangments to discharge the debisr“'*The defendant Potts was nota trustee, and the payments required of him were not made in the execu- . tion oí a power, but in the performance of an original obligation to pay his own debt created by his purchase. This liability of Potts was property within the reach of the several creditors .to the extent of their rights respectively to appropriate it to the payment of their claims. And is distinguished from a power arising out of a trust in its legal effect as against the creditors of the vendor if free from fraud in fact. The finding of the trial court that the sale and purchase of the firm property and the conveyance by Burrows to Potts of the Canada property, and his' interests in the house and lot at Tonawanda, were without any intent to hinder, delay, or defraud the creditors of the firm, seems to be supported.

The view thus taken here leads to the conclusion that the disposition made of the case in that respect at special term' was not- error. But the rights of the plaintiff may properly be settled by the judgment in this action, and they should be, in view of the difficulty which may otherwise arise elsewhere, so as to declare his right to the pro rata sum of the proceeds of the sale of the firm property by way of the abatement to that extent of the amount of his claim. The matter of the construction before mentioned as to him, of the agreement of purchase and for the payment to the creditors, may not be so clear as to obviate discussion, but his right as a creditor to that portion of the purchase money (as it remains unpaid) whether pursuant to the agreement to pay him forty per cent, or as a fund arising out of liability to pay for firm property purchased, seems clear.

The complaint contains allegations which would have permitted the special term to treat the case as within the statute providing for creditors’ actions not resting in fraudulent disposition of property, as well as the common law creditors’ actions founded upon'the latter. And the court may have given such relief. Code Civ. Pro., § 1871. This has taken the place of 2 R. S. 173, § 38. And ii; is very likely that this relief would have been given if the attention of the court had been specifically called to it, which the jecovd does not show was in any manner done.

The judgment should be so modified as to direct the payment Jpp-ifcé defendant Potts, to the plaintiff of the portion of the purchase price of the firm property which he undertook to pay on account of the debt due to the plaintiff, that is to say, forty per cent of such debt to be applied in abatement thereof to the extent only of such payment. And as so modified, affirmed without costs to any party.

Smith, P.J. Barker and Haight, JJ., Concur.


author: Smith, P. J.

text:
    John Whatling, Resp’t, v. William Nash, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886).
    Complaint — Joinder of — Causes of action — What not impbopebly UNITED IN COMPLAINT.
    A complaint set forth, two causes of action, one for wrongful entry upon plaintiff’s land under water, and wrongfully taking and carrying away fish therefrom, the other for a like entry on plaintiff’s land and catching and killing muskrats thereon. Upon demurrer thereto, on the ground that the causes of action were improperly united. Field, the allegations of injuries to personal property were not state Lents of separate causes of action, but mere averments in aggravation of the wrongful entry.
    Appeal from a judgment of tbe Monroe special term overruling a demurrer to the complaint.

      D. L. Covill, for appl’t; W B. Crittenden, for resp’ts.
   Smith, P. J.

Tbe grounds assigned for tbe demurrer are, tbat several causes of action are improperly united, and that tbe complaint does not state facts sufficient to constitute a cause of action. Tbe latter ground is not argued by the appellant’s counsel in the brief. submitted to us, and it is quite clear tbat there is no foundation for it in tbe complaint.

As to the first ground, it is true that tbe complaint sets forth two distinct causes of action, but they are such as may properly be joined in one complaint, as they are both for alleged injuries to real property. One is for a wrongful entry upon plaintiff’s land under water, about April or May, 1881, and wrongfully taking and carrying away fish therefrom; the other, for a like entry on plaintiff’s land, in the year 1882, and catching and killing muskrats thereon. The allegations of injuries to personal property are not, as the appellant’s counsel seems to suppose, statements of separate causes of action, but are mere averments in aggravation of the wrongful entry. (Van Leuven v. Lyke, 1 Comst., 515; Howe v. Willson, 1 Den., 181; Dunckle v. Kocker, 11 Barb., 387; Clark v. Van Vrancken, 20 Barb., 278; Gilbert v. Pritchard, decided in this department in June, 1886: MSS. op. of Smith, P. J.)

The question whether the two causes of action for trespass quare clausum, should be stated in separate counts and separately numbered is not before us.

The judgment should be affirmed with costs, with leave to the defendant to withdraw the demurrer and answer the complaint, within twenty days, etc., on payment of the costs of this appeal and of the demurrer.

Barkee, Haight and Bradley, JJ., concur.

So ordered.